The right to redeem a mortgage is a substantive right that subsists until the mortgage itself subsists. Unless the right of redemption is extinguished as provided by law, it is neither extinguished by withdrawal of a suit without making a prayer for filing a fresh suit nor by the passing of a decree that does not extinguish the mortgage itself or the right to redeem it.

1. This second appeal is directed against the appellate judgment of the learned Civil Judge, Chittorgarh dated 26.9.1978 whereby he has upheld the judgment of the learned Munsif. Nimbaheda dated 13.9.1974 dismissing the suit for possession of the mortgage land filed by the plaintiff appellant.

2. In this case, a suit was brought by Smasth Panch Jain Swetambar Sthanakwasi (Bais Sampradaya) Bhadsoda in represental capacity through Shri Mohanlal Jain and Shri Bhanwarlal Jain residents of Bhadsoda against defendant Motilal son of Hemraj Sewak pleading inter alia that a house with Guwadi situated in village Bhadsoda, the boundaries of which have been given in para No. 2 of the plaint belonged to one Devilal Gokhru; who died in Smt. 2017. This house was mortgaged with defendant Hemraj and his sons Motilal and Udailal. On the death of Devilal, his sons Mangilal, Ratanlal and Bhanwarlal became the owners of this property and the equity of redemption came to rest in them. They gifted this property to the plaintiff on Chet Sudi 13, Samvat 2013. It is alleged that on 15.2.1967, on behalf on the plaintiff, one Shri Nanalal Lodha paid a sum of Rs. 1051/- to the defendant and after recording the receipt of this amount in the Bahi of plaintiff Samaj, the defendant agreed to keep this house in his possession for two years and thereafter, he agreed to vacate it. However, a registered gift deed was executed in favour of the plaintiff Samaj by Mangilal, Ratanlal and Bhanwarlal, sons of Shri Devilal Gokhru on Jeth Badi 11, Samvat 2028 i.e. on 20.5.1971. It is alleged that Mangilal, Ratanlal and Bhanwarlal omitted to mention the factum of mortgage and, therefore, one more gift deed was executed on 28.1.1972, in which the factum of mortgage was also mentioned.

3. According to the plaintiff, the defendant is a licencee of this house since 15.2.1967 and that licence came to an end on 15.2.1969 and, therefore, the plaintiff is entitled to the possession of this house along with mesne profit @ Rs. 10/- per month. In this case, the suit was filed on 3.4.1972.

4. A written statement was filed on behalf of the defendant on 29.7.1972. According to the defendant, Shri Devilal Gokhru mortgaged this house with him on Chet Sudi 9 Samvat 1983 for a sum of Rs. 335/- and possession of the suit house was given to him. Thereafter, it is alleged that a sum of Rs. 101/- was paid to Shri Devilal and, therefore, he executed a sale deed in favour of the defendant and his sons. It was submitted that from Chet Sudi 9 Samvat 1983, the defendant and his sons are living in this house as owners. According to the defendant, when this house did not belong to Mangilal, Ratanlal and Bhanwarlal, they could not have executed any gift deed in favour of the defendant either on Chet Sudi 13, Samvat 2013 or on 28.1.1972. The alleged amount of Rs. 1051/- was never paid to him and when possession of the suit house was never handed over to the plaintiffs and the defendant was living in it as owner of this house, his rights are not affected by any gift deed by the heirs of late Devilal Gokhru. It is alleged that Devilal himself filed a suit for redemption of the mortgage, which was registered as Civil Original Suit No. 103 Samvat 2002 in the Court of Munsif Bhinder and in that suit, on behalf of the defendant, a plea was taken that he is the owner of this house. That suit was dismissed as withdrawn on 17.6.1947, and, thereafter, defendant Hemraj and his sons Motilal and Udailal are using this house as owners and so, their adverse possession had ripened on this house. According to the defendant Motilal, his brother Udailal is a co-mortgagee in this house and, therefore, without impleading him as a party to this suit, this suit cannot proceed.According to the defendant, the sale deed dated 15.2.1967 was got executed from them by using coercion and undue influence i.e. that they will be ostracised and nobody will participate in the funeral of their father. It was submitted that in the m