1. The civil suit from which this second appeal by the defendant (hereinafter called appellant) arises was filed by the plaintiffs (hereinafter called respondents) for a declaration and if necessary, for possession of field no. 15 situate in Karanji Izara. The Suit was decreed by the first Court and the appeal preferred by the defendant against that decree was dismissed by the lower appellate Court. The defendant has therefore filed this second appeal.
2. It is common ground that the field was originally owned along with other fields in Karanji Izara by Mt. Bayanabai w/o Vyankatrao. She mortgaged her fields in the Izara village including the field No. 15 now in dispute with the plaintiffs on 16th February 1918, and 24th March 1920 and these mortgages merged in a fresh mortgage which she executed on 6-10-1922. The mortgagees enforced this mortgage in Civil Suit No. 61 of 1930 and obtained a final decree for foreclosure on 20-3-1937. They also obtained possession through Court on 28-12-1937. Waman Santoba, the husband of appellant 1 (now deceased) sued the mortgagees (respondents) for possession of field No. 15 under Section 9 of the Specific Relief Act, and this suit, No. 45 of 1938, was decreed in his favour. He took possession of the field No. 15 on 13-12-1938. The mortgagees-respondents had therefore to file the present suit.
3. The appellant 1 who is the main con-testing defendant urged that in Karanji Izara some fields including the field in dispute were owned by Mt. Bayanabai and some fields including No. 2 were owned by Maroti, her sister's son. It was alleged that in 1917 by virtue of an oral exchange between them, the field in dispute was exchanged by Mt. Bayanabai for field No. 2 of Maroti and thus Maroti became the owner of the field and was in possession thereof. On 28-3-1925 Maroti sold this field no. 15 to Waman by a registered sale deed for Rs. 5200/- which amount was utilized by Maroti for partial payment of the mortgage debt due to the respondents. The defendant thus pleaded a paramount title, tracing the title of Maroti to the oral exchange in 1917 i.e, prior to the date of the first mortgage. In paragraph 10 of the written statement defendant No. 1 pleaded in the alternative as under:—
“Even if the oral exchange is held invalid or is not proved still the defendant submits that the defendant is a bona fide purchaser for value and his predecessor-in-title Maroti Baliram had been in exclusive possession of the field in suit as owner for more than 12 years prior to the suit i.e since 1917 (the year of oral exchange) or at least since January 1922 he had in any case acquired adverse title to it.”
4. It appears from the record that Mt. Bayanabai died in 1931 during the pendency of the mortgage suit and Maroti Baliram and his son Bapu-rao were brought on record as her legal representatives. The mortgage decree was passed against them.
5. Both Courts have found that the alleged exchange of the fields in 1917 is not proved and that the oral exchange in respect of the property worth more than Rs. 100/- was also invalid in law. It was further held on the strength of Ex. P. 16 that from 1918 to 1925 Bayanabai was shown as owner and Woman was shown as a tenant. Maroti's possession over field No. 15 was found to be from 1923, i.e after the last mortgage and never before. Thus the plea of Maroti's title was negatived and Maroti could not consequently pass any title to Waman by virtue of the sale deed dated 28-3-1925. It was further-held that Waman was not protected as a bona fide purchaser for consideration from Maroti as Waman knew that Maroti's title was defective as based on an oral exchange and in any case any reasonable enquiry on his part would have disclosed that Maroti had no title to the field. The appellate Court has fully agreed with the first Court on all these points.
6. In this second appeal the learned counsel for the appellant attempted to attack the finding on the point of exchange, which, as is quite apparent, is a pure finding of fact. The finding is reached on evidence on record and is unassailable in second appeal. It may be noted that what is alleged in para. 10 of the written statement reproduced above does not make any legal plea. There is no plea of bona fide enquiry on the part of the purchaser, Waman, which is very essential before protection under Section 41 of the Transfer of Property Act, can be invoked. Even apart from this, the plea has been negatived by both the Courts below and I agree with it. Thus the defence raised in the suit is completely negatived and as a result, the claim of the plaintiffs was correctly decreed.
7. An attempt was made by the appellant in the lower appellate Court and also in this Court to travel beyond the pleadings on record and to raise new questions which are by no means pure questions of law. It was urged on the strength of Section 43 of the Transfer of Property Act, that though. Maroti may have no title during Mt. Bayanabai's life time, he acquired the title to the field in dispute on her death in 1931 and this also enured to the benefit of Waman, the transferee from Maroti. It was alleged that Waman had thus acquired an interest in the equity of redemption and the mortgage decree in favour of the respondents did not extinguish Waman's right of redemption as he was not impleaded in the mortgage suit. The learned Judge of the lower appellate Court did not permit the appellant and, in my view, correctly—to raise this ground for the first time in appeal. It is quite obvious that this is not a pure question of law and depends on several facts which are neither pleaded nor proved. If this plea was raised at proper time the respondents would have met it by challenging several facts which are pre-requisites to the success of the plea. It is not known if Maroti was really the nearest heir of Mt. Bayanabai and the mere fact that he was brought on record as legal representative is not necessarily an admission of this fact. Moreover Bayanabai died during the pendency of the mortgage suit and if Maroti acquired title during the pendency of the suit and Waman's title was thereby perfected still the decree passed against Maroti would be binding on Waman. It was further contended for the first time in second appeal that Waman was in any case in adverse possession of the field in suit since 1925 and even on that ground he was a necessary party to the mortgage suit No. 61 of 1930. It has to be noted that Waman or his heirs at no stage offered to redeem the mortgage; on the other hand, the only plea that was raised was of a paramount title originating in 1917. The defendant cannot be permitted at any stage to turn round and take up points not only not raised in the pleadings but positively inconsistent with what was pleaded. Moreover at the date of the institution of the mortgage suit, Waman had acquired no interest in the equity of redemption and he was not a necessary party to the mortgage suit. The appellant cannot, therefore, be permitted to urge points not covered by the pleadings on record.
8. Lastly, the learned counsel for the appellant, relying on I.L.R (1942) Nag. 145,1 contended that though Waman may not have acquired right of redemption at the date of suit, but as he had acquired it before the present suit of the plaintiffs and even before he was originally dispossessed by the mortgagees on 28-12-1937—the mortgagees respondents are not entitled to dispossess defendant 1, the successor in interest of Waman without affording him an opportunity to redeem the interest acquired by adverse possession on payment of proportionate portion of the mortgage amount. The principle on which the reported decision rests is found at page 152 of the report:
“When there is a mortgage the original rights to the property are split up between the mortgagor and the mortgagee, some residing in one and the rest in the other. When the mortgagee eventually forecloses (or buys in a case of sale), the two rights coalesce. But if the mortgagor no longer has that portion of the rights which reside in him at the date of the mortgagee's suit it is by no means clear that the mortgagee can obtain them by foreclosing the mortgagor (or bringing the mortgaged property to sale), and omitting from the action the person in whom these rights really reside. It is immaterial for this purpose whether the stranger has acquired the mortgagor's rights by purchase or by adverse possession.”
9. This means that if at the date of suit for foreclosure or sale, the right of redemption is not in the mortgagor but has been already acquired by a person not a party to the mortgage suit, there is no possibility of the two rights merging into a right of ownership in favour of the mortgagee or the purchaser. The right of redemption which is vested in the stranger at the date of suit is unaffected by the eventual foreclosure or a sale in a suit to which such a prior holder of equity of redemption was not a party. There is no difference in principle whether such a right was acquired by transfer or by adverse possession so long as the same was already acquired at the date of the mortgage suit. Under O. 34, R. 1 of the CPC, all persons having an interest either in the mortgage-security or in the right of redemption are necessary parties to the mortgage suit. Where a necessary party is not impleaded in the suit either by reason of ignorance of the fact that such right exists in someone other than the mortgagor or for any other reason, his rights cannot be concluded by a decree passed in that suit: vide, 56 Mad. 846.2 It therefore follows that he cannot be dispossessed of the property in which he has acquired rights by the foreclosing mortgagee or by the auction-purchaser in execution of the mortgage-decree without giving him an opportunity to retain the property acquired by him on redeeming: vide, 59 Mad. 3123 at p. 331.
10. The position of one who had not acquired a right of redemption at the date of the mortgage suit but who acquired it during the pendency of the suit is, however, entirely different. He is not a necessary party to the mortgage suit as the right he acquired is hit by the principle of lis pendens: vide, 59 Mad. 312 at p. 331. Here again, there is no difference in principle between a person who acquires title pending the suit by transfer or by adverse possession. The equity of redemption would be acquired by adverse possession only on the completion of the prescriptive period of 12 years and not a day before that. Under O. 22, R. 10 of the CPC, he could, if he chose, apply for being impleaded as a defendant but that is not obligatory. He is bound by the result of the lis which had already started when he had not acquired title by prescription. The right of the mortgagee to enforce against his mortgagor is not in the least affected by voluntary or involuntary transfer of interest in the mortgaged property during the pendency of the mortgage suit.
11. In the present case the possession of Waman under the sale deed by Maroti, who had no title in himself to his vendee, started on 24-3-1925. Even the possession of Maroti is found to be from 1923. Thus in 1930 when the mortgage suit was instituted the right of redemption was vested in Mt. Bayanabai (the mortgagor) and she was alone the necessary party. It was on her death in 1931 that Maroti and his son were brought on record. Thus at the date of suit Waman was not in the position of a prior holder of equity of redemption. He, or now his widow cannot complain that he was not joined in the mortgage suit. It is not proved that the mortgagee was aware of Waman's possession and much more of his adverse possession though, in my opinion, even the knowledge by the mortgagee of mere possession not ripened into title would be immaterial. It is quite obvious that Waman had not acquired a right of redemption at the date of the mortgage suit and he cannot in law improve his position by acquisition of that right during the pendency of the suit.
12. The decision in I.L.R (1942) Nag. 145 at p. 152 follows 59 Mad. 312, in which the person sued for possession, though a prior holder of equity of redemption at the date of mortgage suit, was not impleaded in that suit due to ignorance on the part of the mortgagee of that right. The position of persons acquiring the right of redemption during the pendency of the mortgage suit and who are consequently affected by the principle of lis pendens is however distinguished by Stone, J. (as he then was) and it is on that ground that the case in 66 I.C 631,4 was not followed. This is, I believe, accepted in principle in I.L.R (1942) Nag. 145 at p. 152 as appears from the extract quoted above from page 152.
13. Viewed in this light and following what is said in I.L.R (1942) Nag. 145 at p. 152, I am of opinion that Waman or his widow (appellant 1) cannot, resist the plaintiffs' claim for possession or claim a right to redeem the field No. 15 by payment of proportionate share of the mortgage amount. The claim of the plaintiffs-respondents for possession of field No. 15 was thus correctly decreed. The appeal is dismissed with costs. Counsel's fee Rs. 40/-.
14. Appeal dismissed.