Qadir Reshi & Ors. vs Khahq & Ors.

Mufti BahaudDin, J.

(1) This is a civil revision. The facts leading up to this revision are these. One Rasool Bhat, died leaving surviving three sons, Mohd. Bhat, Mahda

Bhat and Sultan Bhat, in whose favour land measuring 60 kanals and 8 marlas situate in Gund Maqsood tehsil Chadura left behind by the deceased

was mutated in equal shares, Mahda Bhat died leaving surviving his widow, Mat. Fati and his daughter Mst. Jani. After the death of Mahda Bhat

these two ladies alienated the entire share of the land measuring 23 kanals and 2 marlas belonging to Mahda Bhat, to petitioners 1 and 2 herein,

partly by sale and partly by mortgage The sale extended to land measuring 6 kanals and 10 marlas covered by sale deed dated 19th Bhadon,

1992, while the mortgage covered land measuring 16 kanals and 7 marlas under a tnortgsga deed dated 26th Bhadon, 19C8. Shaban Bhat, the

grand son of Mohd Bhat and Guffar Bhat son of Sultan Bhat challenged thefe alienations and brought a suit for possession. The suit finally

concluded by a judgment of this court dated 26th June, 1942, by which the plaintiffs' suit was decreed to the extent of 3/8th share of the land hit by

Mahda Bhat. As regards the remaining 5/8th share it was held that devolved on Jani and Fati The implication of this judgment was that the

mortgage was rendered valid to the extent of 7 kanals and 14 marlas only, allowance being given for the portion covered by the sale. In this

process Fati and Jani and so also Guffar Bhat died. After the death of Jani the respondents herein along with Shaban Bhat brought a suit against

the petitioners herein in the court of City Judge, Srinagar, and claimed the following reliefs :

(a) decree for possession based on redemption respecting land measuring 7 kanals and 14 marlas.

(b) decree for injunction respecting land measuring S Kanals and 13 marlas possession whereof had come to them jointly in pursuance of the

decree of the .High couit in the earlier suit.

During the pendency of this suit Shaban Bhat died. His legal representatives made an application for being brought on record as party plaintiffs. By

its order dated 10th September, 1970, the trial court dismissed the application as timebarred and held that the suit abated so far as the deceased

plaintiff was concerned but considering the nature of the suit this abatement could not affect the suit of the other plaintiffs which could proceed as

before, It is against this order that the defendants have come up in revision before this court.

(2) The learned counsel for the petitioners contended that in the absence of the legal representatives of the deceased, Shaban Bhat, having been

brought on record the suit had abated in toto. This is what the learned counsel for the respondents did not concede who instead argued that having

regard to the facts and circumstances of the case and the reliefs claimed there could be no abatement nor even partial.

(3) Order 22 Rule 2 of the Civil Procedure Code interalia provides that where there are n3ore,plainfiffs than one and any of them dies and where

the right to sue survives to the surviving plaintiffs or the plaintiff alone, the court shall cause an entry to be made to that effect on the record and the

suit shall proceed at the instance of the surviving plaintiffs or the plaintiff. By rule 3 it is provided that if the right to sue does not survive to the

surviving plaintiffs or the plaintiff alone and no steps ate taken to cause the legal representatives of the deceased plaintiff to be brought on record

within the period allowed by law the suit shall abate so far as the deceased plaintiff is concerned. This limited abatement may, however, some times

have the effect cf causing the abatement of the entire suit, as for example, when the right or relief claimed in the suit is an indivisible one existing in

all the plaintiffs jointly.

(4) In view of the legal position explained above the question that inevitably arises in this case is whether on the death of Shaban Bhat the right to

sue survived to the remaining plaintiffs alone or not. In this connection it becomes necessary to consider the reliefs claimed in the suit. One of these

is for injunction. Now it is . settled law that even one coowner can sue a trespasser for preventing invasion of the joint property. On the death of

Shaban Bhat, therefore the right to sue for injunction survived to the remaining plaintiffs alone, both individually and jointly, no matter that the legal

representatives of the deceased were not brought on record.

(5) The other relief is that for possession based on redemption. The right to this relief flows from Section 60 of the Transfer of property Act which

provides for the right of a mortgagor to redeem the mortgaged property. In its last paragraph the said section provides as under :

Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a

proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all

such mortgagees, has or have acquired, in whole or in party the share of a mortgagor.

This would imply that where there are more mortgagors than one, any one of them may bring a suit for the redemption of the entire property. This

may happen in two ways ; one, where the original mortgagors are more than one and secondly, where the original mortgagor was one only but,

having died, his rights have vested by devolution in several persons. In the latter case the successors of the single mortgagor become comortgagors

by devolution,

(6) The case of the plaintiffs is that they are heirs and successors of Mst. Jani who was a mortgagor by herself and on whom also the rights of her

deceased mother devolved. That being so, any one of them could bring a suit for redemption of the mortgaged property, if, however, they chose to

bring such suit jointly and one of them has died, that would not affect the right of the remaining plaintiffs to continue the suit even in the absence of

the legal representatives of the deceased plaintiff for the right to sue for redemption both jointly or severally clearly survives to them alone. The

learned counsel for the petitioners however, argued that the plaintiffs were not heirs and successors of Mst. Jani and that the equity of redemption

had devolved on his adopted son, petitioner No. 3, but this is a question which will be investigated at the trial and if proved will nonsuit the

plaintiffs.

(7) Viewed as above, no question of any abatement even partial, could arise and the case fell within the provisions of order 22 Rule 2 C.P.C.

which required the court to make a note of the death of Shaban Bhat and proceed with the case. In that view the order made by the trial court

allowing the suit to proceed at the instance of the remaining plaintiffs even in the absence of the legal representatives of Shaban Bhat is correct

though for reasons slightly different from those adopted by it.

(8) Lengthy arguments were advanced before us regarding the interpretation of section 91 of the Transfer of property Act but that section has no

application to the preset;: case in that the said section is applicable where the suit for redemption is brought by a person other than the mortgagor

who claims to have some interest in. or charge upon, the property mortgaged or in or upon the right to redeem the same which is clearly not the

case here.

(9) In the result we find no force in this revision petition which is hereby dismissed.