A mortgage suit filed prematurely must be dismissed; agreements to delay possession do not validate such suits.

1 One Harbans Mishra filed Civil Suit No. 1070 of 1950 impleading as defendants Kesho Ram, Mst Sukh Dei, Mst Dhanpati, Sukhi Lal and Nageshwar Kalwar. The suit was one for redemption of a mortgage and with a chequered history.

2 One Mst Toranto had mortgaged the suit property on 26-1-1908 in favour of Kesho Ram for a period of 60 years. This property is said to have been inherited by Smt Sukh Dei, who on 1-4-1950 executed a sale deed selling her right of redemption in favour of Narvadeshwar Mishra (original plaintiff and respondent herein). Sukh Dei had only a limited interest being a Hindu widow not in possession of the property. The plaintiff contended 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, was null and void, and therefore, the plaintiff was entitled to redeem the mortgaged property without waiting for expiry of the mortgage period. Mst Toranto died leaving her son Harbans Kalwar and daughter Harkali. Harbans Kalwar also died leaving behind his widow Sukh Dei the only heir. Mst Dhanpati filed 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 Toranto and had inherited the property in dispute after the death of Mst Toranto and was, therefore, entitled to exercise the right of redemption of the same. Similarly, one Sukhi Lal also filed Suit No. 1486 of 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 Toranto and the only heir. Mangal Prasad Tamoli, Bindeshwari and Sarjoo Devi, the legal heirs of the original mortgagee Kesho, contested all the three suits on various grounds.

3 By judgment dated 30-11-1955, the 1st Additional Munsif, Gorakhpur dismissed all the three suits holding as follows:
That Smt Dhanpati and Sukhi Lal had no right to the property aforesaid, the aforesaid plaintiff in suits OSs Nos. 904 of 1951 and 1486 of 1953 had failed to prove that they were the heirs of Smt Toranto or purchasers from the heirs of Toranto; that Smt Toranto had a limited interest in the mortgaged property and the mortgage became void after her death in the year 1908. The heirs of Smt Toranto having not 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 not remain permissive and the suit for redemption filed by the plaintiff was dismissed inter alia on the ground that the plaintiff had no right to redeem the property; held that Harbans Kalwar, son of Toranto died after Smt Toranto and Sukh Dei was the wife of Harbans Kalwar who claimed the property of Smt Toranto after the death of Harbans Kalwar; the conditions of mortgage did not amount to clog on redemption and the suit was premature.

4 Narvadeshwar Mishra, heir of the original plaintiff filed Civil Appeal No. 44 of 1956 arising out of Suit No. 1070 of 1950. Smt Dhanpati and Sukhi Lal did not file any appeal against the dismissal of their Suits Nos. 904 of 1951 and 1486 of 1953, in view of the finding of the Trial Court that suit was premature. 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 not a clog on redemption. The other points urged in the appeal were left open. On 18-1-1966 the High Court allowed the second appeal of Narvadeshwar Mishra and others (the heirs of the plaintiff respondents herein) holding that the finding of the courts below to the effect that the terms of the mortgage were not a clog on redemption and that the suit was premature was correct. The High Court, however, went further to hold that as the appellant had made a statement before it that he would not take the possession of the property before actual expiry of the mortgage time i.e. before 26