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Zorawar Singh And Anr. vs Dip Chand And Ors.

High Court Of Judicature at Allahabad|30 January, 1929


1. This is a second appeal by two defendants known as defendants 1 and 2 in the original suit. Their father was mortgagee of a certain property by virtue of an old mortgage. The mortgagors were Dip Chand, plaintiff and his brother, Chhidda, who died leaving a widow, Mt. Kokla. On 11th January 1919 Mt. Kokla sold half the right of equity of redemption in the property to the defendant Gopi with a declaration that it belonged to her. Thereupon the father of defendants 1 and 2 pre-empted the property by a suit filed in 1920. The present suit was filed by Dip Chand on 10th August 1925 for a declaration that Dip Chand and Chhidda were members of a joint Hindu family, that Mt. Kokla had no rights in the property, Dip Chand having become owner of the entire equity of redemption by right of survivorship on the death of Chhidda, that no rights passed to Gopi by the sale, that no rights passed to the father of defendants 1 and 2 under the decree for pre-emption and that the relation of mortgagor and mortgagee with respect to half the property in suit continued between the plaintiff Dip Chand and defendants 1 and 2. Such declaration was granted by the lower appellate Court. In this Court, the arguments are well summarized in the first three grounds of appeal.
1. That a suit for declaration with respect to a sale effected more than six years prior to the institution of the suit was barred by time under Article 120, Lira. Act.
2. That when Chhidda and his brother were joint, the possession of Mt. Kokla was adverse and ripened into that of a proprietor after 14 years when she sold the equity of redemption.
3. That the suit was barred by the provisions of Section 4.2, Specific Relief Act.
2. The sale did take place in 1919 but the plaintiff obtained a fresh cause of action by the proceedings in 1920 when the father of defendants 1 and 2 sued for preemption and in defence, the sale, which is attacked, is put forward by Gopi. For a suit for declaration there may be repeated causes of action and each new cause would give a fresh right to sue. Within six years Gopi had put forward his claim under the sale and, therefore, the suit for declaration regarding the effective character of the sale was within time. The decree for redemption was passed within six years of the institution of this suit and a declaratory relief with regard thereto must be considered to be within time.
3. The lower appellate Court has held that Mt. Kokla was not in possession in her own right. The mere entry of her name in the village record cannot start adverse possession. There is no evidence that she held the property to the knowledge of Dip Singh as owner of the equity of redemption. It often happens that a Woman's name is entered when she is in the village and the male owner is away. In such a case the woman would be considered to be in possession on behalf of the man and not adversely. I hold that Mt. Kokla did not acquire any proprietary title by adverse possession.
4. In the provisions of Section 42, Specific Relief Act, is the proviso that no Court can make any declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so. In the present case, the deduction of the learned Counsel for the appellant was that the plaintiff could seek the further relief of redemption and, therefore, he was not entitled to obtain a declaration from a civil Court. On behalf of the respondents, two rulings of this Court were referred to: viz., Bhujhawan v. Nanha [1882] A.W.N. 73 and Ram Charan v. Durga Prasad [1884] A.W.N. 78, No reasons are given in those judgments It was there held that a mortgagor may seek for a declaration that he was a mortgagor without seeking the relief of redemption of mortgage. The decisions are by a Bench of two Judges, so I shall not comment thereon. The argument that "further relief" meant relief of the same nature does not appeal to me. In the nature of things, such further relief would be of a different character, just as a relief for declaration is different from a relief for possession. In the present case, however, I am of opinion that the plaintiff was not in a position to seek the relief of redemption. His declaration was confined to half the property and without the consent of the defendant, he could not redeem the property piecemeal. It was pointed out by Mr. Laghate that the plaintiff himself was the mortgagor of the other half. That is true, but he is not bound to join up another property when he seeks relief with respect to a particular property. He desires relief with respect to half the property only. Redemption thereof would not be possible in this suit. For this reason I hold that the provisions of Section 42, Specific Belief Act do not apply. I dismiss this appeal with costs.
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Zorawar Singh And Anr. vs Dip Chand And Ors.


High Court Of Judicature at Allahabad

30 January, 1929