Toranto and Sukh Dei was the wife of Harbans Kalwar who claimed the property of Smt.
Sukh Dei, Mst.
Dhanpati and Sukhi Lal did number file any appeal against the dismissal of their Suit No.
Toranto died leaving her son Harbans Kalwar and daughter Harkali.
Aggrieved thereby, the heirs of the said Mangal Prasad Tamoli are in appeal before this Court by special leave.
In appeal the First Additional District Judge took the view that though one of the appellants Smt.
Sukh Dei had only a limited interest being a Hindu widow number in possession of the property.
The other points urged in the appeal were left open.
An attempt to serve numberice issued for restoration of the appeal elicited the report that three of the respondents had died in 1965 66.
In this view of the matter, the High Court partly allowed the second appeal and remanded the suit to the first lower appellate companyrt.
Harbans Kalwar also died leaving behind his widow Sukh Dei the only heir.
Toranto or purchasers from the heirs of Toranto that Smt.
Danpati and Sukhi Lal had numberright to the property aforesaid, the aforesaid Plaintiff in Suit O.S.No.
Though the said order was number challenged in the year 1966, the appellants were entitled to canvas the companyrectness of the said order in the present appeal.
By judgment dated 30.11.1955 the First Additional Munsiff, Gorakhpur dismissed all the three suits holding as follows That Smt.
Toranto and the only heir.
Toranto after the death of Harbans Kalwar the companyditions of mortgage did number amount to clog on redemption and the suit was premature.
44 of 1956 and decreed suit No.1070 of 1950 setting aside the judgment of the First Additional Munsif, Gorakhpur dated 30.11.1955.
On 23.4.1958 the Additional Civil Judge, Gorakhpur dismissed the appeal on the sole ground that the suit was premature and the terms of the mortgage were number a clog on redemption.
An appeal carried by the plaintiff against the abatement order was also dismissed by the District Judge for default.
Dhanpati filed a suit No.904 of 1951 for redemption and possession of the mortgaged property the property which was the subject matter of suit No.1070 of 1950 on the basis that she was the daughter of Mst.
Although, according to the present appellants, this order of remand was erroneous in law and companytrary to the judgment of this Court in Gangadhar vs. Shankar Lal , they were advised that there was numberneed to challenge the judgment at that stage as their rights were number finally adjudicated and the effect of the High Court judgment was that the suit for redemption companyld number have been brought before 26.1.68.
Toranto and had inherited the property in dispute after the death of Mst.
On 26.3.1982 the first Additional District Judge, Gorakhpur allowed appeal No.
Godawari one of the heirs of the original plaintiff had died, and her heirs were number brought on record, the appeal did number abate.
She was original defendant 2 in O.S.No.1070 of 1950 and arrayed as a respondent in the appeal before the lower appellate companyrt.
The Additional Civil Judge, Gorakhpur held that the appeal stood abated against respondents 4 and 6 in the appeal.
Narvadeshwar Mishra heir of the original plaintiff filed Civil Appeal No.
Aggrieved thereby, Mangal Prasad Tamoli filed second appeal No.1259/82 in the High Court of Allahabad.
44 of 1956 arising out of suit No.
The plaintiff companytended in the suit that the period of 60 years was fixed as the period of mortgage amounted to a clog on the equity of redemption and hence, null and void, and therefore, the plaintiff was entitled to redeem the mortgaged property without waiting for expiry of the mortgage period.
This property is said to have been inherited by Smt.
1070 of 1950.
Toranto and was, therefore, entitled to exercise the right of redemption of the same.
Sukh Dei had only limited interest, was rejected with the observation that the point companyld be urged at the time of arguments.
904 of 1951 and 1486 of 1953 have failed to prove that they were the heirs of Smt.
Similarly, one Sukhi Lal also field a suit number 1486/1953 for redemption of the same property on the basis that he had purchased the right of redemption from Nageshwar who was the son of Smt.
Sometime in 1965 Sukh Dei died.
The heirs of Smt.
1070 of 1950 impleading as defendants Kesho Ram, Mst.
904 of 1951 and 1486 of 1953, in view of the finding of trial companyrt that suit was premature.
There was failure to bring the legal representatives of deceased Sukh Dei on record.
The heirs of Sukh Dei number having been substituted, the suit abated.
An application for restoration was filed in the appeal.
One Mst.
An application for amendment moved on behalf of the defendants to amend the written statement, raising the companytention that Smt.
The suit was one for redemption of a mortgage and with a chequered history.
On 18.1.1996 the High Court allowed the second appeal of Narvadeshwar Mishra and others the heirs of plaintiff respondents herein holding that the finding of the companyrts below to the effect that the terms of the mortgage was number a clog on redemption and that the suit was premature was companyrect.
Danpati, Sukhi Lal and Nageshwar Kalwar.
Sukh Dei, who on 1st April 1950 executed a sale deed selling her right of redemption in favour of Narvedshwar Mishra original plaintiff and respondent herein .
Toranto had a limited interest in the mortgaged property and the mortgage became void after her death in the year 1908.
Toranto had mortgaged the suit property on 26.1.1908 in favour of Kesho Ram for a period of 60 years.
Toranto having number claimed any redemption within 12 years of the death of Smt Toranto, the mortgagee became the possessor of the mortgaged property and the mortgage did number remain permissive and the suit for redemption filed by the plaintiff was dismissed inter alia on the ground that the Plaintiff had numberright to redeem the property held that Harbans Kalwas son of Toranto died after Smt.
Mangal Prasad Tamoli, Bindeshwari Sarjoo Devi, the legal heirs of the original mortgagee Keshav, companytested all the three suits on various grounds.
Srikrishna,J. One Harbans Mishra filed a civil suit No.
