IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.1371 of 1980
Date of Decision: 18.11.2008
Gurbax Singh .... Appellant
vs.
Pat Ram and others .... Respondents
Coram: Hon'ble Mr. Justice Rajive Bhalla. Present: Mr. Arun Jain Sr. Advocate with
Mr. Chetan Slathia, Advocate for the appellant.
Mr. Gautam Hooda, Advocate for respondent No.1.
Rajive Bhalla, J, (Oral)
The appellant challenges the judgment and decree dated
29.02.1980, passed by the Additional District Judge, Sirsa partly reversing
the judgment and decree dated 25.07.1977, passed by the Sub Judge Ist
Class, Sirsa.
Narain son of Ramji, the original plaintiff, now represented by
his legal representatives, filed a suit, praying that as the mortgagor had
failed to redeem the mortgaged property within limitation, he had become
owner by efflux of time. It was also prayed that the order passed by the
Collector, dated 16.09.1975, directing redemption of the mortgaged
property be declared illegal and void. The respondents opposed the suit
and though they admitted the mortgage, they denied that the period of
limitation for redeeming the mortgage had expired and asserted that as the
appellant had purchased mortgagee rights by mutation No.338 dated
21.06.1954, he had, in essence, acknowledged the mortgage and
therefore, the application for redemption was within time.
On the basis of the pleadings the learned trial court framed the
following issues:-
RSA No.1371 of 1980 -2-
1. Whether the plaintiff has become the owner of the suit
land by lapse of time and foreclosure as alleged? OPP.
2. whether the order of collector dated 16.09.1975 is
wrong, against law as such the same is liable to be set
aside? OPP.
3. Relief.
The trial court after an appraisal of the pleadings, the evidence
adduced and the arguments addressed held that as the mortgage created
in the year 1928 was not redeemed, within thirty years, the equity of
redemption stood extinguished and as a result the Collector had no
jurisdiction to order redemption of the mortgaged property. The suit filed by
the appellant was, therefore, decreed by holding that he had become
owner in possession of the suit land.
Aggrieved by the aforementioned judgment and decree
respondent No.1, filed an appeal. The first appellate court held that though
the mortgage had come into existence on 15.06.1928 failure to redeem the
mortgaged property, would not confer the status of an owner, upon the
appellant. Despite these findings the first appellate court proceeded to
hold that the Collector had no jurisdiction to direct redemption of the
mortgaged property, as limitation for filing an application for redemption
had expired. The appeal was, therefore, partly allowed.
Counsel for the appellant submits that the findings recorded by
the first appellate court are a contradiction in terms. Once it is held that the
period of limitation for redeeming a mortgage has expired, the appellant
would as a natural consequence, become owner in possession of the suit
land. It is submitted that limitation for redemption of a usufructuary
mortgage commences from the date of mortgage. The mortgage in the
instant case came into existence on 15.06.1928, as reflected in mutation
RSA No.1371 of 1980 -3-
No.60 sanctioned on 20.01.1929. Admittedly it was not redeemed within
thirty years and therefore, the equity of redemption stood extinguished by
efflux of time. The first appellate court, therefore, had no jurisdiction to
reject the appellant’s claim that he had become owner of the mortgaged
property.
Counsel for the respondent No.1, on the other hand, submits
that where the mortgage does not prescribe a period for redemption,
limitation for redeeming a usufructuary mortgage commences from the date
the mortgagor pays or tenders to the mortgagee or deposits in court the
mortgage money or the balance thereof and not from the date of mortgage.
It is submitted that the dispute with respect to the period of limitation that
governs the filing of an application for redemption has been answered by a
Full Bench of this Court in Ram Kishan and others vs. Sheo
Ram and others, 2008(1) PLR 1 against the appellant and therefore, the
appeal be dismissed.
I have heard counsel for the parties and perused the impugned
judgments as also the judgment in Ram Kishan and others vs. Sheo
Ram and others (supra) referred to hereinabove.
As facts that have led to the filing of the present appeal have
been narrated hereinbefore, they do not merit repetition. The question of
law framed by counsel for the appellant as reflected in the grounds
accompanying the memorandum of appeal is as under:-
“Whether on the expiry of limitation for redemption of
mortgage the right of the defendant/respondent was
extinguished with the effect of making the
plaintiff/appellant owner of the land in dispute?”
Answer to this question would require consideration of the
period of limitation that governs the filing of an application for redemption of
a usufructuary mortgage. This question came up for consideration before
RSA No.1371 of 1980 -4-
a Full Bench in Ram Kishan and others vs. Sheo Ram and others
(supra) and after considering the controversy in detail it was held as
follows :-
33.The argument that after the expiry of period of
limitation to sue for foreclosure, the mortgagees have a
right to seek declaration in respect of their title over the
suit property is not correct. From the aforesaid
discussion, it is apparent that the mortgage cannot be
extinguished by any unilateral act of the mortgagee.
Since the mortgage cannot be unilaterally terminated,
therefore, the declaration claimed is nothing but a suit
from foreclosure. It equally well settled that it is not title
of the suit, which determines the nature of the suit.
The nature of the suit is required to be determined by
reading all the averments in the plaint. Such
declaration cannot be claimed by an usufructuary
mortgagee. Thus, we prefer to follow the dictum of law
laid down by the larger Bench in Seth Ganga Dhar’s
case (supra) as well as judgments of Hon’ble Supreme
Court in Jayasingh Dnyanu Mhoprekar’s case (supra),
Pomal Kanji Govindji’s case (supra), Panchanan
Sharma’s case (supra) and Harbans’s case (supra) in
preference to the judgments relied upon by the
mortgagees in Prabhakaran’s case (supra) and
Sampuran Singh’s case (supra).
34.Therefore, we answer the questions framed to hold
that in case of usufructuary mortgage, where no time
limit is fixed to seek redemption, the right to seek
redemption would not arise on the date of mortgage but
RSA No.1371 of 1980 -5-will arise on the date when the mortgagor pay or
tenders to the mortgagee or deposits in Court, the
mortgage money or the balance thereof. Thus, it is
held that once a mortgage always a mortgage and is
always redeemable.
It is, therefore, apparent that the question of law framed in the
present appeal has already been answered by holding that in case of a
usufructuary mortgage, where no time limit is fixed to seek redemption, the
right to seek redemption would arise on the date when the mortgagor pays
or tenders to the mortgagee or deposits in court the mortgage money or the
balance thereof and not from the date of mortgage and therefore as the
period for redemption has not expired the right to seek redemption has not
expired and the appellants have not become owners of the mortgaged
property.
The judgment and decree passed by the first appellate court
would, therefore, have to be modified by holding that as the mortgage
subsists, the order passed by the Collector directing the redemption of the
mortgaged property is legal and valid. With the above modification in the
judgment and decree passed by the first appellate court, the appeal is
disposed of accordingly. No orders as to costs.
18.11.2008 (Rajive Bhalla) sk Judge