Bisakha Singh And Others vs Sadhu Singh And Another on 20 November, 2008

RSA No.893 of 2006                                              1


      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH.



                                      RSA No.893 of 2006
                                      Date of Decision: 20.11.2008

Bisakha Singh and others                                 .....Appellants

                               Vs.


Sadhu Singh and another                                   ....Respondents

                               ....

CORAM :      HON'BLE MR.JUSTICE RAJIVE BHALLA

                               ****

Present : Mr.Ashok Singla, Advocate for the appellants.

None for the respondents.

….

RAJIVE BHALLA, J (Oral)

The appellants, challenge judgements and decrees dated

22.2.2003 and 3.8.2004, passed by the Civil Judge (Junior Division), Phul

and the Additional District Judge, Bathinda, dismissing the suit and the

appeal respectively.

The appellants filed a suit praying for grant of a declaration that

they are owners in joint possession of land measuring 20 kanals and 8

marlas, as the respondents have failed to redeem the usufructuary mortgage

within the prescribed period of limitation. It is alleged, in the plaint, that

one Badna Singh, morgaged the suit land with the forefathers of the

appellants, more than 100 years ago. As the respondents, who are

successors-in-interest of the mortgagor, have failed to redeem the
RSA No.893 of 2006 2

mortgaged property, within the prescribed period of limitation, the

appellants have become owners in possession.

In opposition to the averments in the plaint, the respondents

admitted the mortgage but denied that they had become owners and also

asserted that the suit was filed by concealing the fact that an application

had been filed for redemption of the mortgage.

The trial Court dismissed the suit by holding that as the

mortgage did not prescribe a period for redemption, the mortgage subsists

and as a result, the appellants had not become owners in possession, by

efflux of time. Aggrieved by the said judgement, the appellants filed an

appeal. The Additional District Judge, Bathinda, dismissed the appeal and

affirmed the findings recorded by the trial Court.

I have heard learned counsel for the appellants and perused the

impugned judgements.

The appeal was admitted on 8.8.2006 on the following question

of law :-

“Whether the right to seek redemption would arise on the date

of mortgage itself in case of usufructuary mortgage when no

time limit is fixed to seek redemption ?”

Admittedly and as accepted by counsel for the appellants, the

question of law has been answered against the appellants and in favour of

the respondents by a Full Bench of this Court in Ram Kishan and others

V. Sheo Ram and others, 2008(1) PLR 1, wherein while considering the

period of limitation prescribed for filing an application, for redemption of a

usufructuary mortgage, it was held as follows :-
RSA No.893 of 2006 3

“33. The arguments that after the expiry of period of

limitation to sue for foreclosure, the morgagees 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 for

foreclosure. It is 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

judgements 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

judgements 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 raise on the date of mortgage but
RSA No.893 of 2006 4

will arise on the date when the mortgagor pays 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 in a usufructuary mortgage, where

no time limit is fixed for redemption, the right to seek redemption accrues

on the date the mortgagor pays or tenders to the mortgagee or deposit in

Court, the mortgage money or the balance thereof and not from the date of

the mortgage. In the instant case, as the mortgage does not assign a date or

a period for redemption, the limitation for filing a suit/application for

redemption of the mortgaged property, has not expired. The Courts below,

therefore, rightly dismissed the suit and the appeal. The impugned

judgements do not call for interference and are affirmed.

In view of what has been stated herein above, the appeal is

dismissed, with no order as to costs.

20.11.2008                                         (RAJIVE BHALLA)
GS                                                      JUDGE