- (1.) THIS second appeal has been filed by the defendants against whom the respon-dent's suit for redemption of mortgage over the land in dispute was decreed by the trial court, the first appellate court (Divisional Commissioner, Udaipur) confirming the same in appeal.
(2.) WE have heard the learned counsel for the parties and have examined the record as well. The facts of the case have been set out in the judgment of the lower appellate court and need not be repeated here. The propriety of the decisions of the lower courts has been challenged before us on two grounds. WE shall discuss both of them separately. The first contention is that the lower courts were not justified in treating the suit as being within limitation inasmuch as the original mortgage was created in Svt. 1939 and as the action for redemption was commenced more than 60 years after the creation of the mortgage i. e. in Svt. 2003, the same should have been held as time barred. It has been replied on behalf of the respondent that according to the terms of the original mortgage, redemption was not to be sought for before 21 years of the date of the mortgage and hence limitation is to run after the expiry of 21 years from the creation of the mortgage. It was also argued that Pannalal, in the course of a previous enquiry, had made an admission about this mortgage in Svt. 1968 and the same would give start to a fresh period of limitation as this admission was within the prescribed period of limitation (Sec. 19 of Indian Limitation Act) As regards the admission of Pannalal, it has been argued by the appellant that it should have been referred to specifically in the plaint under order 7 rule 6 C. P. C. and as it was not so, mentioned it should not be taken into consideration. According to these provisions where the suit is instituted after the expiration of the prescribed period of limitation the plaint shall show the ground upon which exemption from the law of limitation is claimed. This rule simply requires that the plaint should show a ground of exemption. But once that is shown there is nothing in the rule to preclude the plaintiff from relying upon a new ground of exemption at the trial. According to the Bombay High Court the new ground should not be inconsistent with that taken originally. According to the Allahabad, Calcutta, Lahore and East Punjab High Courts the new ground may even de-inconsistent with the original one Chitley's C. P. C. 1957 Edition, page 2313-14.) Hence it would be clear that even if no reference was made in the plaint to the admission of Pannalal as saving limitation it would be open to the plaintiff to resort to it during the course of the trial This we have pointed out simply because an argument was addressed to us on the point. As limitation stands saved on the ground mentioned in the plaint itself, we do not consider it necessary to examine this aspect at any great length It has been held by both the lower courts that one of the conditions of the mortgage was that redemption would not be sought before the expiry of 21 years from the date of the creation of the mortgarge. We have been referred to the statement of Dalchand, a witness examined by the respondent. He has deposed to the contents of a copy of the mortgage deed prepared by his brother Gumanilal who had died more than a decade ago. It was mentioned in the mortgage deed that redemption would take place only after the expiry of 21 years from the date of the mortgage Thus the cause of action in the present case would arise after 21 years of the mortgage, i. e. in Svt. 1960 and the present suit would be within limitation It was argued that the mortgage deed was unregistered and not on a proper stamp. As pointed out by Sharma J. in Punchia vs. Harna, 1951 RLW 457, the inadmissibility of an unstamped document or an unregistered document or of secondary evidence of such documents does not prevent the admissibility of other evidence to prove the relationship of mortgagor and mortgagee, the factum of mortgage, consideration for the mortgage and the date of the mortgage as well. The other contention is that necessary parties were not impleaded in this suit. This too is without any substance. The original mortgagees were Surat Singh and Manakchand. The names of their sons also are mentioned along with that of their fathers Defendant No. 1 is the son of Ghamarchand. Defendant No. 2 is the son of Chunilal. Defendant No 3 is the son of Debilat, a brother of Ghamarchand Defendants 4, 5, and 6 are also sons and grandsons of Gamarchand's brother. It is, therefore, obvious that all persons who should be interested in the mortgage were impleaded in that suit, It may be that out of 3 brothers only two may have been so impleaded in one branch. But this loses its significance when it is remembered that head of every branch was invariably impleaded as a defendant. The result is that there is no substance in this appeal and it deserves to be rejected. A cross objection has also been filed by the respondent. The learned counsel for the respondent Shri Bhanwarlal Vyas has stated before us that he does not desire to proceed with this cross objection as he will seek his remedy elsewhere. In view of this we find it unnecessary to consider the grounds mentioned in the cross objection. The result is that the appeal is hereby rejected. . ;