Judgement BHATTACHARJEE, J. :- The two main questions requiring determination in this appeal are whether a mortgagor is entitled to file a suit and to obtain a decree for redemption of mortgage where the deed of mortgage is invalid for want of registration and if not, whether the mortgagor is entitled in such a suit to a decree of recovery of possession on proof of title. There is also another question involved in this appeal which, however, may not require any definite decision, that is, whether a marriage between a Darjee male and a chhetri female is illegal and invalid and as such fails to create any right of inheritance in favour of the wife or the issues of such marriage. 2. The suit was originally filed by late Kaloo Karki Dholi Darjee, father of the present plaintiff-respondent Bishnu Maya, against his two full brothers Kaziman and Lall Bahadur for declaration of title and recovery of possession of the suit property. During the pendency of the suit, Kaloo Karki expired and was substituted by his widow Lila Maya and daughter Bishnu Maya; thereafter the widow Lila Maya also died and the suit was continued by Bishnu Maya, the present plaintiff respondent, as the sole surviving legal representative of the plaintiff Kaloo Karki. On the side of defendants one of the two brothers Kaziman also died and was substituted by his widow Bishnu Kala and two minor sons, Bhanu Pratap and Kamal Kumar. 3. The facts of the case which, to use a trite phrase, lie in a short compass, may briefly be stated Kaloo Darjee, the original plaintiff and the predecessor of the present plaintiff Bishnu Maya, purchased the suit land by and under a registered deed of sale in the year 1950 from one Jit Bahadur for Rupees six hundred and got the land mutated in his name in due course. Kaloo Darjee fell ill and took a loan from his brother Kaziman and Lall Bahadur in consideration of which he "entrusted" the suit property, being the aforesaid land together with structures thereon, with the said brothers "in the shape of a mortgage with clear understanding that they would restore the land and house to the original plaintiff Kaloo on his return after treatment. But though after his return Kaloo Karki requested his brothers to vacate the suit property on repayment of the loan, they refused to do so and thereafter Kaloo Darjee served a notice to his brother on 12th July, 1971 by registered post and ultimately he filed the suit on 16th Aug. 1971. 4. The suit was originally valued at Rupees six hundred only for the purpose of jurisdiction and court-fees. The defendants having challenged the valuation in their written statement, the then Munsiff-Magistrate determined the point of valuation as a preliminary issue. The learned Munsiff Magistrate held that the alleged mortgage being invalid for want of a registered document, the suit was to be treated and valued and stamped as a suit for declaration of title and recovery of Possession and after considering the evidence adduced by the parties he by his order dated 28th Nov. 1973, held the valuation to be Rupees ten thousand and since such valuation exceeded the pecuniary jurisdiction of his Court, ordered the return of the plaint for presentation to the proper Court On appeal against this order, the then appellate Court in Civil Misc. Case No. 1 of 1974 set aside the order holding that the suit was to be treated and valued as a suit for redemption of mortgage as the factum of mortgage was clearly admitted by the defendants in their written statement even though there was no registered deed for the mortgage and further held that the valuation of the suit for the purpose of jurisdiction and court-fee would be Rupees fifteen hundred only being the amount of mortgage loan. In accordance with direction of the appellate Court, the plaintiff amended the reliefs claimed by claiming a decree for redemption of the suit property and other incidental and consequential reliefs and valued his suit at Rupees fifteen hundred and paid the additional court-fees. 5. In accordance with direction of the appellate Court, the plaintiff amended the reliefs claimed by claiming a decree for redemption of the suit property and other incidental and consequential reliefs and valued his suit at Rupees fifteen hundred and paid the additional court-fees. 5. The defendants in their joint written statement admitted that the suit property was purchased by Kaloo Darjee from Jit Bahadur in 1950 but contended that Kaloo Darjee wanted to go to Kurseong after disposing of the suit property and accordingly took a sum of Rupees fifteen hundred "duly mortgaging his house and holding with the mutually agreed upon terms and conditions binding both the parties, i.e., to repay the loan back with interest at the rate of 12 (twelve) annas per cent per month by the plaintiff within six years' time and in case he would fail to do so, the mortgagee brothers shall become absolute owners of the said building and house without any objection of this plaintiff and his legal heir or representatives after the lapse of six years agreed upon terms and conditions" and that an "agreement-cum-mortgage document was signed by this plaintiff, is wife and his only daughter Bishnu Maya Darjeeni. Thereafter Kaloo Darjee left Sikkim and came back after fourteen years in "1969 and without trying to redeem" the suit property, constructed a house and purchased a piece of land at some other place. The defendants further contended that despite requests made by the defendants to Kaloo Darjee, who had been visiting Gangtok occasionally, the latter failed to redeem the suit property and never approached them for restoration of the suit property prior to the date of notice in July, 1971. The defendants further contended in their additional written statement that in the terms of the deed dated 1st February, 1954 executed by Kaloo Darjee and in view of the provisions of S.53-A, T.P. Act, 1882, the plaintiff lost all title to the suit property and that the defendants being in continuous and uninterrupted and adverse possession of the suit property ever since 1st Feb. 1954 to the knowledge of the plaintiff and against his right, title and interest, if any, the plaintiff could not claim the suit property and that suit was also barred by limitation. 6. 1954 to the knowledge of the plaintiff and against his right, title and interest, if any, the plaintiff could not claim the suit property and that suit was also barred by limitation. 6. The suit after remand by the appellate Court came to be tried by the same learned Judge who during the course of the trial was promoted as Additional District Judge and tried the suit in such capacity and that is why the present appeal has been filed in this Court. The learned Judge in addition to the general issue as to what relief or reliefs the plaintiffs was entitled to, framed the following issues, namely :- 1. Are the plaintiffs entitled to sue the defendants for redemption of mortgage ? 2. Are the defendants entitled to claim protection under Section 53A of the Transfer of Property Act ? 3. Are the defendants in adverse possession of suit property ? 4. Is the suit barred by limitation ? 5. Is the suit barred by the principles of waiver, estoppel and acquiescence ? 6. Whether the right to sue the defendants survives on the plaintiff, Bishnumaya Darjeeni, alone after the death of her mother Lilamaya Darjeeni ? And decided all the issues in favour of the plaintiff and against the defendants and passed a preliminary decree for recovery of possession of the suit property by redemption of mortgage on payment of Rupees three thousand by the plaintiff to the defendants within a period of three months with a further direction to the defendant to hand over the title deeds in respect of the suit property to the plaintiff. Being aggrieved by the aforesaid judgement and decree, the defendants have preferred this present appeal. 7. Mr. M.K. Pradhan, the learned Advocate appearing for the defendants-appellants has firstly urged that the present suit as it stands after the amendment, being a suit for redemption of mortgage, was bad and ought to have been dismissed as the mortgage itself was bad for want of registration. Mr. R.K. Agarwala, the learned Advocate for the plaintiff-respondent, has, however, joined issue and has contended that even if the mortgage deed was inadmissible and invalid for want of registration, the suit for redemption of mortgage was still maintainable as the factum of mortgage had been admitted by the defendants appellants in their written statement and also otherwise at the trial. R.K. Agarwala, the learned Advocate for the plaintiff-respondent, has, however, joined issue and has contended that even if the mortgage deed was inadmissible and invalid for want of registration, the suit for redemption of mortgage was still maintainable as the factum of mortgage had been admitted by the defendants appellants in their written statement and also otherwise at the trial. Before considering this question and the merits of the contentions of the learned Advocate, I would, like to consider the broader question as to the applicability of the provisions of the T.P. Act, 1882, in this suit or for the matter of that, in Sikkim. 8. The provisions of the T.P. Act, 1882, were never adopted in Sikkim prior to its inception as a component State in the Union of India, nor have, as yet, been extended to Sikkim by a Notification under Cl. (n) of Art. 371F of the Constitution of India. But it has been contended by Mr. Pradhan that even if the T. P. Act has not been adopted in or extended to Sikkim, the provisions contained therein should be applied as embodying principles of justice, equity and good conscience and that many of such provisions have been applied by the Courts in Sikkim without such adoption or extension. I have my own doubts as to whether all the provisions contained in the T.P. Act can be said to be embodiment of such just and equitable principles as to demand universal application even without any formal adoption or extension of the said Act. I do not think that the provisions relating to attestation or registration of document or of formal notice can be regarded to embody principles of equity and justice and not rules of legal technicalities. I do not think that the provisions relating to attestation or registration of document or of formal notice can be regarded to embody principles of equity and justice and not rules of legal technicalities. I am aware of the observations of Chief Justice Sri Wallis in the Full Bench case of the Madras High Court in Krishna Sethi v. Gilbert Pinto (AIR 1919 Mad 12 at p. 13) quoted with approval by Chandrashekhar Aiyar, J. sitting singly in T. Umar Pulaver v. Dawood Rowther (AIR 1947 Mad 68 at p. 69) to the effect that "the Act was framed by eminent English lawyers to reproduce the rules of English law in so far they are of general a application and rest on principle as well as on authority and its provisions are …… binding on us as rules of justice, equity and good conscience …..in the absence of any special reason for not applying them". But I am equally aware that the Supreme Court in Namdeo v. Narmada Bai (AIR 1953 SC 228 at pp. 231-32) has characterised the above observations as "too broad a statement to make" and has observed that "it is erroneous to suppose that every provision in the T.P. Act and every amendment effected is necessarily based on principles of justice, equity and good conscience" and that "it has to be seen in every case whether the particular provision of the Act relied upon restates as known rule of equity or whether it is merely a new rule laid down by the legislature without reference to any rule of equity and what is the true nature and the character of the rule." I have no doubt that the rule as contained in Section 59 of the T.P. Act, compulsorily requiring mortgages of the value of one hundred rupees or upwards to be effected by registered and attested instrument cannot be regarded as embodiment of rules of equity and justice and as such cannot be invoked or applied where the T. P. Act does not apply ex proprio vigore. In fact there are good number of decisions to that effect in cases arising from Punjab, Rajasthan and other places where the T. P. Act 1882, was not or has not been formally extended or enforced and by way of illustration I may refer to the decision of the Lahore High Court in Ratan Chand v. Smail (AIR 1933 Lah 821). But though the provisions requiring compulsory registration of mortgage as contained in S.59 of the T.P. Act cannot be invoked in Sikkim, the rules in force in Sikkim relating to registration of documents require documents relating to sale, mortgage, etc. of immovable property to be compulsorily registered and reference in this connection should be made to the Notification No. 385/G dated 11-4-1928 and also to the "Rules Relating to Transfer of Immoveable Property dated 18-1-1950". But one thing should, however, be noted. Under the Indian Registration Act, 1908, a document which is invalid for want of registration cannot be validated in Court on payment of any penalty as is allowed, barring few exceptions, in the case of unstamped or insufficiently stamped document under S.35, Indian Stamp Act, 1899. In Sikkim, however, under Notification No. 2947G, dated 22nd Nov. 1946, an unregistered document may "be validated and admitted in Court to prove the title or other matters contained in the document on payment of a penalty up to fifty times of the usual registration fees". It may be contended, on the authority of the Privy Council decision in Maharaja Rajunder Kishwur v. Sheopursun (1863) 10 Moo Ind. App 438 at p. 452, then before shutting out a document from evidence on the ground of non-registration, a party should be allowed an opportunity to pay the penalty. But if, as in this case, there is no evidence that the penalty was tendered in and refused by the trial Court and if, as will appear from the orders dated 29th April, 1975 and 29th May, 1975 of the trial Court, the party did not pay penalty in spite of definite direction to that effect, and on the contrary, filed a petition stating that they did not want to pay the penalty and to have the document admitted, the appellate Court cannot allow the penalty to be paid and admit the document. It may also be noted that in this case before us no prayer has been made by or on behalf of any of the parties to admit the document on payment of penal and both the parties have proceeded on the basis that the deed of mortgage being compulsorily registrable is invalid for want of registration. That being so, the question whether the suit for redemption of mortgage is maintainable where the mortgage deed is invalid for non-registration is very much pertinent in this case and must be considered. 9. The principle "once a mortgage always a mortgage", implying that a mortgage must co-exist with a right to redeem is an embodiment of the principle of equity, justice and good conscience. According to this principle, given a mortgage, the right to redeem the same must always be there, whether or not such a right is conferred or recognised by any express enactment and the right will continue until the same is barred by limitation or foreclosure. And the inevitable corollary to the above noted principle is that all provisions or stipulations operating as bar or clog on the right or the equity of redemption must be struck down as void. There can be no manner of doubt as to the application and operation of the aforesaid principles even in places and cases not covered by the provisions of the Transfer of Property Act. In dealing with the question of the application of this principle contained in S.60, T. P. Act, in Rajasthan where the Act was not then in force, it has been observed by the Division Bench of the Rajasthan High Court in Ambalal Jasraj v. Ambalal Badarmal (AIR 1957 Raj 321 at p. 325), as hereunder : "We are inclined to think that S.60 and its proviso contain a general principle of law applicable to mortgages in country and they are not technical provisions which should be held to be applicable as matter of statute only. That principle is this. The right to redeem is an incident of a subsisting mortgage and is inseparable from it so that the right is co-extensive with the mortgage itself. Again this right subsists until it is properly or effectively extinguished and extinguishment of the right of redemption can only take place either by the act of parties concerned or by a proper decree of the Court". Again this right subsists until it is properly or effectively extinguished and extinguishment of the right of redemption can only take place either by the act of parties concerned or by a proper decree of the Court". To the same effect is the observation of another Division Bench of the Rajasthan High Court in Saleh Raj v.Chandanmal (AIR 1960 Raj 47 at p. 48) as hereunder :- "The mortgage in the instant case is of . . Year . . . . . . When T.P. Act was not in force in. . . . . This mortgage . . . . Is not governed by it S.60 of the T.P. Act thus is not directly applicable. There was no statutory law corresponding to S.60 of the T. P. Act. . . . . . It is common ground that the cases were decided by the Courts at the time in accordance with principles of justice, equity and good conscience. The principle underlying Section 60 may well be regarded to be a salutary one and in accordance with the principles of equity, justice and good conscience." The observation quoted above should be read with the observation of the Supreme Court in the above noted decisions in Namdeo v. Narmada Bai (AIR 1953 SC 228 at p. 230) quoted hereinbelow :- "It is axiomatic that the Courts must apply the principles of justice, equity and good conscience to transactions which come up before them for determination even though the statutory provisions of the T. P. Act are not applicable to these transactions. It follows, therefore, that the provisions of the Act which are statutory recognition of the rules of justice, equity and good conscience also govern those transfers." And when so read will lead to the conclusion that even though the T. P. Act does not formally apply in Sikkim, the Courts in Sikkim, in discharging their permanent duty to act, in the absence of statutory provisions, according to the principles of justice, equity and good conscience, should reasonably and properly apply the principles contained in S.60 of the T.P. Act relating to redemption of mortgage and unenforceability of any clog on the right of redemption. This is what was also done by the Rajasthan High Court in Devkaran v. Murari Lal, ILR (1958) 8 Raj 811) in a case arising from the former State of Alwar before the extension of the Transfer of Property Act thereto and this decision has been affirmed by the Supreme Court in Murarilal v. Devkaran (AIR 1965 SC 225) and relying on the observations made therein (at p. 231), I would hold that it would be reasonable to assume that the Civil Courts established in Sikkim, like Civil Courts all over India, were and are required to administer justice according to principles of equity and justice where there was or is no specific statutory provision to deal with the question before them and, therefore, it would be just and proper to apply the principles contained in S.60 of the T.P. Act relating to the right of redemption and clog on the equity of redemption. 10. Coming back to the question before us, namely whether the suit for redemption would lie in a case where the mortgage deed is invalid for want of registration, let me examine the respective contentions put forward by Mr. Pradhan and Mr. Agarwala. As I have already noted, the trial Judge, while hearing the question of valuation, held that the mortgage being invalid for want of registration, the suit was to be valid as a suit for possession on declaration of title; but on appeal, the then appellate Court relying on the decision of Madras High Court in Govindan Nayar v. K. Ammed (AIR 1927 Mad 92) and of the Lahore High Court in Munshi Ram v. Baisakhi Ram (AIR 1947 Lah 335) held that when the factum of the mortgage has been admitted in the pleadings, suit for redemption would lie, even though the mortgage document was invalid for want of registration and as such inadmissible. The suit was thereafter, as already noted, valued, stamped and tried as a suit for redemption of mortgage and though, as it appears from his judgement, the learned trial Judge had his doubts as to the maintainability of a suit for redemption where the mortgage document is invalid for non-registration he finally decreed the suit as a suit for redemption following the directions of the appellate Court. 11. 11. In the Madras High Court case of Govindan Nayar v. K. Ammed (AIR 1927 Mad 92), Ramesam, J., sitting singly, no doubt observed that where in the pleadings the defendant admitted his position as mortgagee and the terms of mortgage it did not matter whether the mortgage document itself was inadmissible or not and when the relation between the parties was admittedly that of a mortgagor and mortgagee, a suit for redemption would lie. The observation was however, entirely obiter because as has been observed by the learned Judge himself in the decision, the said question was never raised in that case. 12. In the Lahore High Court case in Munshi Ram v. Baisakhi Ram (AIR 1947 Lah 335), Cornelius, J., sitting singly, however, followed the observations of Ramesam, J., in Govindan Nayar's case noted above and held a suit for redemption to be maintainable even where the mortgage document was invalid for non-registration. 13. In the Madras High Court, not only the factum but also the terms of the mortgage were admitted by the defendants in their pleading, while in the case at hand, the terms of mortgage alleged by the respective parties are at great variance, because while in the plaint it has been alleged that the defendants were to restore the land to the plaintiff Kaloo, in the written statement it has been asserted that the defendants-mortgagee were to become absolute owners of the mortgaged property after the lapse of six years. In the Lahore case, not only the defendant admitted his possession under the mortgage deed but also stated further that he was to and was willing to restore the possession on receipt of the refund of the mortgage money; but as has already been noted, in the case at hand, the stand of the defendants is diametrically opposite to that of the plaintiff, asserting full ownership and title in themselves. Therefore, on the facts of the present case, the principles laid down in the aforesaid Madras and Lahore decisions cannot apply. 14. But that apart, I am afraid that if the aforesaid Madras and Lahore decisions have laid down that the suit for redemption would lie if the mortgage is admitted in the pleadings even though the mortgage document is invalid for want of registration, I will respectfully express my inability to agree with such view. 14. But that apart, I am afraid that if the aforesaid Madras and Lahore decisions have laid down that the suit for redemption would lie if the mortgage is admitted in the pleadings even though the mortgage document is invalid for want of registration, I will respectfully express my inability to agree with such view. For I am of the of the opinion that even if the facts are admitted by the parties in their pleadings or otherwise, a suit for redemption of such a mortgage will not lie if the mortgage under law was to be and could only be created by a written and registered instrument and there was no such document of mortgage and I take this to be the settled law since the Privy Council case of Ariff v. Jadunath (AIR 1931 PC 79) where it has been held that admission cannot create or confer title where the statute requires written or registered instrument. As has already been noted and as has also been admitted by both Mr. Pradhan and Mr. Agarwala, under the provisions of the laws in force in Sikkim the mortgage of immovable property cannot be created without a registered instrument. That being so, we cannot, as held by the Privy Council in Ariff v. Jadunath, allow mere admissions to take the place of compulsory registration, thereby setting at naught the provisions of law of transfer and registration and thus opening a floodgate for evasion, circumvention of those laws. 15. It may be noted here that relying on the aforesaid Privy Council case of Ariff v. Jadunath (AIR 1931 PC 79) and also other later Privy Council cases, it has been held by the Rangoon High Court in the Full Bench decision in Ma Kyi v. Maung Thon (AIR 1935 Rang 230) and relying thereon, in the later Full Bench decision in Maung Lu Pe v. Maung San Mya (AIR 1940 Rang 11), that if the mortgage is for more than Rupees one hundred and is not registered, a suit for redemption of such a mortgage would not lie as under the provisions of S.59 of the T. P. Act such a mortgage could be created only by a registered instrument. To the same effect is the decision of Lokur, J., of the Bombay High Court, sitting singly, in Nigappa v. Danappa (AIR 1947 Bom 206) where the aforesaid two Full Bench cases of the Rangoon High Court have been referred to and relied on. 16. I would like to refer to one more decision on this point and that is the decision of the Patna High Court in Bishnu Singh v. Sheodhari Das (AIR 1947 Pat 110) where Agarwala, J., sitting singly, considered the fact of admission of parties, of the factum of unregistered mortgage, required to be registered, in a suit for redemption and relying on the above noted Privy Council case of Ariff v. Jadunath AIR 1931 PC 79 observed as under : "So far as admission relied on by the plaintiffs is concerned, it amounts only to this that the defendants were put in possession as mortgagees under an oral mortgage for a consideration of Rs. 600. If an admission is sufficient to create mortgage, then this admission must have that result. But since the decision of the privy council in Ariff's case that the requirement of a statute cannot be got over by the application of the doctrine of part performance, it is idle to contend that the requirement of S.59, T. P. Act can be evaded in this way. S.59 declares that a mortgage for a consideration of Rupees 100 or more must be by registered instrument. Admittedly in this case, there was no instrument either registered or otherwise. There could, therefore, be no mortgage and the defendants' admission is insufficient to create what the statute prevents." 17. I respectfully agree with the above observations and I am of the opinion that the admission of the parties, if any, cannot be acted upon as substitute for a mortgage which can be created only by a registered document. 18. The contention that where the fact of mortgage is admitted, a suit for redemption would lie even though the mortgage is invalid for want of registration is apparently based on the provisions contained in S.58 of the Indian Evidence Act, 1872 whereunder no fact need be proved in any proceeding which parties admit or are deemed, under rules of pleadings, to admit by their pleadings. But even if the factum of mortgage is regarded as proved by way of such admission, such admission will not prove a mortgage in law to sustain a suit for redemption if it is further shown or admitted that the mortgage was for more than Rupees one hundred and was not created by a registered instrument by which only such mortgage could be created. Even if the factum of a marriage or an adoption is admitted by the parties to a suit, such admission cannot still prove or be allowed to prove a marriage or adoption, if it otherwise appears that the marriage could not take place in law because, say, of the parties being within prohibited degrees of relationship or the adoption could not take place because, say, of absence of the capacity of the parties to take or give in adoption. Ordinarily, an admission may dispense with a formal proof of the thing admitted, but if the thing so admitted can only operate or take effect only after complying with certain legal requirements in certain forms and such requirements have not been complied with, an admission, however, clear and unconditional, cannot be pressed to cure such illegality. I am, therefore, of opinion that as the mortgage in this case was to be created by a registered instrument under the relevant laws of Sikkim and has not been so created, a suit for redemption of such mortgage cannot lie and must fail and even admission of the defendants as to the factum of mortgage in their written statement and otherwise cannot cure the illegality and sustain the suit for redemption. 19. Before parting with this point must refer to a rather recent decision of the Supreme Court in K. Variah v. P.C.K Haji (AIR 1974 SC 689) where in spite of clear admission in writing of the defendant-respondent and his predecessor-in-interest as to the fact of the mortgage, it has been held that the plaintiff cannot obtain redemption or regain possession on the basis of a mortgage which cannot be proved for want of registration. In that case the Supreme Court also appears to have approved the Full Bench Rangoon decision in Ma Kyi v. Maung Thon (AIR 1935 Rang 230) referred to hereinbefore and also the Division Bench decision of the Rajasthan High Court in Hansia v. Bakhtwarmal (AIR 1958 Raj 102). In that case the Supreme Court also appears to have approved the Full Bench Rangoon decision in Ma Kyi v. Maung Thon (AIR 1935 Rang 230) referred to hereinbefore and also the Division Bench decision of the Rajasthan High Court in Hansia v. Bakhtwarmal (AIR 1958 Raj 102). The decision in Hansia's case has, however, been overruled by a later Special Bench decision in Lachhmi Narain v. Kalyan (AIR 1960 Raj 1) but nothing prevents the Supreme Court from a proving an overruled decision of a High Court in preference to the decision overruling the former. 20. This brings us to be second question, namely, even if the plaintiff-respondent is not entitled to a decree for redemption for the reasons stated above, whether she would be entitled in this suit to a decree for possession on proof of title. It may be noted that the Supreme Court decision in K. Variah v. P.C.K. Haji (AIR 1974 SC 689) referred to in the preceding paragraph has considered this very question though under slightly different circumstances. The relevant observations of the Supreme Court in the aforesaid case (at p. 690, para 3) may be quoted hereunder : "Where a plaintiff cannot regain the possession on the basis of an oral mortgage as it cannot be proved in a Court of law for want of registration, it is open to him to recover the possession on the strength of his title (see Ma Kyi v. Haun Than, AIR 1935 Rang 230 at p. 231 (FB) and Hansia v. Bhakhtawarmal (AIR 1958 Raj 102 at p. 106). Luckily for them, the appellants did not base their suit solely on the oral mortgage. They also founded their claim on title". 21. It is no doubt true that in that case the Supreme Court referred to and relied on the fact of the alternative prayer having been "luckily" made in the plaint; but it is not possible to conclude from the aforesaid decision that the Supreme Court would have held the appellate to be 'unlucky' and disentitled to the relief of recovery of possession but for such alternative prayer having been specifically made. To my knowledge, the Supreme Court has never laid it down as the law that a relief not specifically prayed can never be granted or relief can never the given on a case not specifically pleaded. To my knowledge, the Supreme Court has never laid it down as the law that a relief not specifically prayed can never be granted or relief can never the given on a case not specifically pleaded. The rule Secundum Allegata Ei Probata need not be strictly applied and has not been applied where there can be no surprise and the opposite party is not prejudiced thereby. I may refer to the decision of the Supreme Court in Firm Srinivas Ram v. Mahabir Prasad (AIR 1951 SC 177) where the Supreme Court allowed a decree in favour of the plaintiff on a case not made out in the plaint and expressly approved the Privy Council decision in Mohan Manucha v. Manzoor Ahmad (AIR 1943 PC 29) where in a suit by the plaintiff to enforce a mortgage security, after the mortgage was held to be void as pleaded by the defendant, the plaintiff was allowed to repudiate the mortgage altogether and to claim a relief outside it in the form of restitution, though no alternative claim was made in the plaint to that effect as the Privy Council felt that the defendant would not be prejudiced thereby and that the matter ought not to be left to a separate suit. I must also in this connection refer to the Supreme Court decision in Bhagwati Prasad v. Chandramaul, (AIR 1966 SC 735) where (at p. 738 Para 9 and 10) the law on the point has been authoritatively laid down as under :- "There can be no doubt that if a party asks for a relief on clear and specific grounds, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new". (para 9) "But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot override the legimate considerations of substance. (para 9) "But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot override the legimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is; did the parties know that the matter in question was involved in the trial, and did they lead evidence about it ? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another" (Para 10). As I understand it, the entire question is of surprise and prejudice to the defendant and if there is no question of the defendant being taken by surprise and being prejudiced thereby the plaintiff should be awarded all the reliefs which he may be found entitled to on the facts on record even though the plaintiff in his plaint has not pleaded a particular case or prayed a particular relief. Let me, therefore, consider whether the title of the plaintiff or of her predecessors have been approved in this case and whether consideration of such case would cause any surprise and prejudice to the defendants-appellants. 22. In the plaint the plaintiff has clearly asserted that he had purchased the land in 1950 from one Jit Bahadur for Rupees six hundred and got the same mutated in his name. These averments have been expressly admitted by the defendants in their written statement. The prayers in the original plaint were for declaration of ownership and recovery of possession, for costs and for such other relief or reliefs as the Court might have deemed fit and proper. In the written statement the defendants have, apart from asserting that on the failure of the plaintiff to redeem the mortgage within the period of redemption of six years, the mortgage amounted to an absolute sale in favour of the defendants, also asserted that they also adversely possessed the suit property against the right, title and interest of the plaintiff since the date of mortgage in 1954 and thus acquired ownership by adverse possession. A specific issue has also been framed by the learned Additional District Judge, being issue No. 3 on the question of adverse possession and has been decided against the defendants. The question of the defendants acquiring title by adverse possession obviously involves question of the plaintiff's losing his title as a result of such adverse possession. Question of title therefore, was specifically raised by the defendants in the pleading and was put in issue and was heard and decided by the trial Judge. Therefore, there cannot be any question of any surprise or resultant prejudice to the defendants if the plaintiff is given decree on the finding of title without driving the plaintiff to a separate suit. Let me, therefore, consider as to whether on the evidence on record the title of the plaintiff to the suit property can be regarded to have been proved. 23. Let me, therefore, consider as to whether on the evidence on record the title of the plaintiff to the suit property can be regarded to have been proved. 23. It should be noted that in the Para 8 of the written statement, the defendants have alleged that after the execution of the mortgage in 1954 which was to be redeemed within six years thereof, the original plaintiff Kaloo Darjee who left for Kurseong "had been visiting Gangkot, Sikkim, once in a year or two years prior to the lapse of the stipulated or specified time, period and year of the said agreement-cum-mortgage document and the humble defendants repeatedly reminded him to pay back their loan with interest" and that the said plaintiff "never cared to do so within the stipulated time nor after that" till the year of the suit and that the defendants had done "their duty by repeatedly reminding him to redeem his house and holding within the time limit" and "even the humble defendants sent a letter to this plaintiff to his address at Dalchini Para, Jalpaiguri asking him to hurry-up to redeem his property". That being the defendants' own case, it is clear that the defendants did not and could not possess the suit property adversely and asserting their full ownership during the entire period of redemption up to 1960 as during that period they admittedly went on doing "their duty" of repeatedly requesting the plaintiff to redeem the plaintiff's own property being the suit property and, therefore, any adverse possession by and on behalf of the defendants could, if at all, start from or after February, 1960 and the suit having been filed on 16th Aug. 1971 is well within the period of limitation of twelve years as fixed under the laws of limitation in Sikkim and the claim of the plaintiff for declaration of title and recovery of possession is not barred by time. 24. But that apart, from the evidence on record it is absolutely clear that the defendants have not made out any case of acquisition of title by adverse possession and the only two witnesses deposing for and on behalf of defendants, being the defendant Lal Bahadur and the defendant Bishnu Kala, nowhere in their deposition have even whispered that they possessed the suit property adversely at any point of time. The case of adverse possession, therefore, must fail on the pleadings as well as on the evidence on record. The case sought to be made out by the defendants at the trial in support of their title and against the title of the plaintiff is that plaintiff or her predecessor having failed to redeem her property within the stipulated period of six years, the defendants have become the owners of the suit property. For the reasons stated hereinbefore, there being no justifiable challenge to the title of the plaintiff in respect of the suit property, the title of the plaintiff must be taken to have been proved. 25. It may be noted that a case of part performance based on the principles contained in S.53-A. T. P. Act, 1882 was pleaded in the written statement and was also put in issue but was negatived by the learned Additional District Judge. But this point has neither been taken in the grounds of appeal nor sought to be argued by Mr. M.K. Pradhan appearing for the appellants-defendants nor any reliable foundation therefor has been laid by the defendants in their evidence during trial and this, therefore, need not detain us. I may, however, observe that the doctrine of part performance as enunciated in S.53-A of the T.P. Act was held to be inapplicable as a principle of equity and justice even under the T.P. Act before the insertion of the aforesaid Section by the Amendment Act of 1929 and, therefore, cannot be applied in Sikkim as such a principle and reference in this connection may be made to the Privy Council decision in Ariff v. Jadunath (AIR 1931 PC 79) noted hereinbefore and the subsequent Privy Council decisions following the same. 26. I have already pointed out that even if the suit for redemption fails for invalidity of the mortgage, the plaintiff should be entitled to a decree for possession on proof of title and in support thereof I may also refer to the decision of Harrington, J. of the Calcutta High Court in Annada Hait v. Khudiram Hait ((1915) 19 Cal LJ 532) where under similar acts and circumstances it was observed as under : "It appears to me that a suit for possession on redeeming a usufructuary mortgage is in substance a suit for possession of land. If the plaintiff establishes his title and the only answer the defendant has that the mortgage is void in point of law, still nevertheless the plaintiff would be entitled to get the land because the defendant on his own showing has no title whatsoever to detain possession of the land." 27. Against this decision of Harrington, J., there was an appeal to the Division Bench and as will appear from the report noted above, the Division Bench consisting of Chief Justice Sir Lawrence Jenkins and Justice Sir Asutosh Mookherjee dismissed the appeal. Ramesam. J., of the Madras High Court also, on a difference of opinion between Spencer J., and Venkatasubba Rao, J., and agreeing with the later, held in N. Appamma v. S. Chinna Beadu (AIR 1924 Mad 292 at 296) that even though the mortgage in the case was not and could not be roved for want of registration and even if the defendant acquired no interest of a mortgage by adverse possession, the plaintiff could succeed if they were able to prove their title. The learned Judge also referred to and agreed with the aforesaid Calcutta decision in Annada Hait v. Khudiram Hait ((1915) 19 Cal LJ 532) and observed that the nature or the character of suit was not changed thereby as a suit to redeem a usufructuary mortgage was substantially a suit for possession. Reference in this connection may also be made to the decision of the Pepsu High Court in Parsini v. Wasan Singh (AIR 1951 Pepsu 109) where it has been held that in a suit for redemption, even if the mortgage fails and is not capable of being proved for want of registration, a decree for possession can be granted to and in favour of the plaintiff if he had proved his title to the mortgaged property independently of the mortgage. 28. Agreeing respectfully with the aforesaid Calcutta, Madras and Pepsu decisions which are, in my view, in consonance and in accordance with the principles laid down by the Privy Council and the Supreme Court decisions noted above, I am of the opinion that in this case also the plaintiff should be given decree of possession of the suit land on declaration of title and while the appeal filed by the defendants should be dismissed, the decree granted in favour of the plaintiff-respondent should be modified accordingly. 29. Mr. 29. Mr. M.K. Pradhan, the learned Advocate for the appellants-defendants, has lastly, but most strenuously, contended that the original plaintiff Kaloo Darjee was of lower caste while the mother of the present plaintiff, deceased Lila Maya, was of higher caste and the marriage between them being invalid under Hindu Law neither Lila Maya nor the daughter, the present plaintiff Bishnu Maya, could represent the original plaintiff and continue the suit. 30. It may be noted here that in Para. 5 of their written statement, filed in answer to the plaintiff filed by the original plaintiff Kaloo Darjee, the defendants, have stated inter alia that the agreement-cum-mortgage document was signed by "this plaintiff, his wife and his only daughter Bishnu Maya Darjeeni." There being thus a clear admission as to the fact of marriage between the Kaloo Darjee and Lila Maya, the mother of the plaintiff, it would be, to use the language of the Privy Council in Ramamani v. Kulanthai ((1870) 14 Moo Ind App 346 at p. 355), "require the most conclusive evidence for its overthrow." But far from adducing any such or any evidence to that effect, the defendants, as will appear from the order of the trial Judge dated 20th Nov. 1972, did not at all oppose the prayer made by the widow Lila Maya and the present plaintiff Bishnu Maya to be substituted in this suit in place of deceased plaintiff Kaloo Darjee as his legal representatives. 31. But after Lila Maya also died and the present plaintiff, who was already on record as a co-plaintiff in her right as a daughter of Kaloo Darjee, prayed to be permitted to continue the suit alone, the defendants, as will appear from the order dated 19th August 1975, challenged that the right to issue survived in Bishnu Maya alone after death of Lila Maya and a separate issue, being No. 6, was framed by the learned Judge as under :- "Whether the right to sue the defendants survives on the plaintiff Bishnu Maya Darjeeni alone after the death of her mother Lila Maya Darjeeni ?" 32. The said issue was decided by the learned trial Judge in favour of Bishnu Maya holding that she, as the daughter of late Kaloo Darjee, was and is, the sole surviving heir and the right to sue the defendants solely survived in her after the death of her mother, late Lila Maya. The said issue was decided by the learned trial Judge in favour of Bishnu Maya holding that she, as the daughter of late Kaloo Darjee, was and is, the sole surviving heir and the right to sue the defendants solely survived in her after the death of her mother, late Lila Maya. 33. It should be noted that what was challenged by the defendants was the right of Bishnu Maya to represent her mother deceased Lila Maya; but as already noted, the right of Bishnu Maya and her mother deceased Lila Maya to represent her deceased father Kaloo Darjee, the original plaintiff, was never challenged. If the marriage between Kaloo and Lila Maya was not valid under the law of any custom having the force of law, then one could have understood the contention that the daughter Bishnu Maya and her mother Lila Maya could not represent the deceased plaintiff Kaloo Darjee. But it is difficult to understand as to how and why the plaintiff Bishnu Maya could not represent her own mother deceased Lila Maya even if the marriage between her own father and mother was in any way invalid, because there is no doubt that the children of invalid marriage can always inherit the rights of and represent the mother. 34. As will further appear from the orders dated 21st May, 1975, 25th Feb., 1975 and 1st April, 1975, long after the original plaintiff died and the daughter Bishnu Maya and the deceased widow Lila Maya were brought on record without objection, the defendants amended their written statement and also filed additional written statement raising various new pleas, but at no point of time raised the question that the marriage between Kaloo Darjee and Lila Maya was and could not be valid on account of difference of castes. As has been noticed hereinbefore, under the law no relief should be granted to a party on a case not pleaded if it would cause surprise and prejudice to the party and I can have no doubt that it would be most surprising and prejudicial to the plaintiff to compel her to face a challenge as to the validity of the marriage between her father and mother even though such a case was not pleaded and put properly at any material stage. 35. 35. I should, however, point out that such a question as this validity of marriages between Hindus belonging to different castes or sects would not detain any Court for a moment if the parties are domiciled in other States of India where the Hindu Marriages Validity Act, 1949 was or the Hindu Marriage Act, 1955 is, in force, because under S.3 of the former Act and under S.29(1) of the latter Act, which repeals and replaces the former Act, no marriage between Hindus shall be deemed to be invalid or ever to have been invalid by reasons only of the fact that the parties belonged to different castes, sub-castes or sects. The Hindu Marriage Validity Act, 1949 did not and could not extend to the then State of Sikkim; the Hindu Marriage Act, 1955, also does not extend to Sikkim. But even then the said Act would have applied to this case in Sikkim if the parties were domiciled in any place where the Act extends. There is nothing on record to show that the parties were so domiciled though there is evidence to show the Kaloo left for and resided in Kurseong and Jalpaiguri in the State of West Bengal where the Hindu Marriage Act extends. Therefore, if the parties were not so domiciled and the question was to be decided in this suit, it would have to be decided according to the Shastric Hindu Law and customs, if any, having the force of law. 36. Under the Shastric Hindu Law as interpreted by the Courts, marriages between persons of different castes were divided under two heads : (1) Anuloma and (2) Pratiloma, the former being marriage between a male of higher caste and a female of lower caste and the latter being marriage between a male of lower caste and a female of higher caste. Though it is difficult to understand the rationale, it was generally held by the Court that while Anuloma marriages were not invalid, Pratiloma marriages were. I have, however, my own doubts as to whether Manu Smriti had absolutely forbidden Pratiloma marriages and declared them to be illegal. Raghunandana in his Udvaha Tattwa, however, relying upon certain texts of the Puranas, absolutely prohibited intercaste marriage. Be that as it may, Mr. I have, however, my own doubts as to whether Manu Smriti had absolutely forbidden Pratiloma marriages and declared them to be illegal. Raghunandana in his Udvaha Tattwa, however, relying upon certain texts of the Puranas, absolutely prohibited intercaste marriage. Be that as it may, Mr. M.K. Pradhan sought to base his argument on the view that Pratiloma marriages were invalid under the Shastric Hindu Law and contended that Kaloo having belonged to the lower caste of Darjee and Lila Maya having belonged to the higher caste of Chhetri the marriage was Pratiloma and was void and as such neither the deceased Lila Maya nor the daughter Bishnu Maya could represent the original plaintiff Kaloo. If it was necessary for us to determine this question I would have remanded this case for ascertaining whether Darjee is lower and Chhetri is higher caste and whether any custom having the force of law and governing the parties allowed or did not allow such marriage. But as I have already stated, this point cannot be allowed to be raised in this case for the reasons stated hereinbefore and need not to be pursued any further. 37. There is another aspect which also makes it unnecessary to pursue this point. As already noted, the deceased Lila Maya and the daughter Bishnu Maya and after the death of Lila Maya, Bishnu Maya alone have been substituted as legal representatives of the original plaintiff to continue the suit. Legal representative for the purpose of a civil suit need not be, as will be irresistibly clear from the definition of the expression "legal representative" in S.2(11), Civil P.C., 1908, the legal heirs of the persons concerned or a person who in law represents the estate of the deceased, but may also be person intermeddling with the estate of the deceased even though such person is not the legal heir and from that point of view the question of heirship of the deceased Lila Maya and Bishnu Maya or the validity of the marriage between Kaloo and Lila Maya is not at all material. 38. 38. It was duty of the defendants to enquire and ascertain as to who were the legal representatives of the original plaintiff Kaloo and to raise objections at the earliest possible opportunity if the persons seeking to substitute the original plaintiff were not the legal representatives and if no such objection is taken and person or persons has or have been substituted as legal representative of the deceased plaintiff, it is no longer open to the defendants to contend at a later stage that true legal representative have not been brought on record and that the suit must fail. If authorities are at all necessary for this well-established proposition, one may refer to the Division Bench decisions of the Madras High Court in Meenatchi Achi v. Anantanarayan ((1903) ILR 26 Mad 224) and of the Bombay High Court in Bala Bai v. Ganesh Sankar ((1903) ILR 27 Bom 162) and also to the decision of the Lahore High Court in Tej Bhan v. Wali Dad (AIR 1921 Lah 60). 39. All the points urged in support of the appeal thus fail and the appeal must, therefore, be dismissed. But while the appeal fails, the decree under the appeal shall stand modified to this extent that instead of a preliminary decree for recovery of possession by redemption of mortgage as granted by the learned Additional District Judge, there shall be a decree for recovery of possession on declaration of title. The plaintiff-respondent will, however, get possession on payment of Rupees three thousand as decreed by the lower Court With this modification, the appeal is dismissed with costs. MAN MOHAN SINGH GUJRAL, C.J. :- I agree.