RSA No. 1209 of 2007 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 1209 of 2007
Date of Decision: 5.9.2009
Khemi and others ......Appellants
Versus
Bhagat Singh and others .......Respondents
CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri Adarsh Jain, Advocate, for the appellants.
Shri Pankaj Jain, Advocate, for the respondents.
HEMANT GUPTA, J. (Oral).
The plaintiffs are in second appeal aggrieved against the
judgment and decree passed by the Courts below, whereby their suit for
declaration that they have become owners of the suit property on account of
failure of the defendants i.e., the mortgagors to redeem the usufructuary
mortgage within the period of 30 years from the date of mortgage, was
dismissed in appeal, inter-alia, on the ground that such suit is hit by
resjudicata and barred by limitation from the date of decision of the
previous suit.
Learned counsel for the respondents concedes that the finding
of resjudicata as recorded by the learned first Appellate Court or the finding
that the suit is barred by limitation from the date of judgment in the previous
RSA No. 1209 of 2007 (2)
suit, is not maintainable, but it is argued that in case of usufructuary
mortgage, there is no period of limitation and thus, the plaintiffs are not
entitled to declaration that they have become owners of the suit property by
efflux of time.
After hearing learned counsel for the parties, I am of the
opinion that the findings recorded by the first Appellate Court in respect of
resjudicata and that the suit is barred by limitation from the date of
judgment in the previous suit, are not sustainable as conceded by the learned
counsel for the respondents. But keeping in view the Full Bench judgment
of this Court in Ram Kishan and others v. Sheo Ram and others, 2008(1)
PLR page 1, wherein it has been held that in case of usufructuary mortgage,
there is no period of limitation for redemption of mortgage and the principle
`once mortgage always a mortgage’ is applicable, the plaintiff-appellants are
not entitled to the declaration sought for. It was held by the Full Bench to
the following effect:-
“32. The limitation of 30 years under Article 61(a)
beings to run “when the right to redeem or the possession
accrues”. The right to redemption or recover possession
accrues to the mortgagor on payment of sum secured in
case of usufructuary mortgage, where rents and profits
are to be set off against interest on the mortgage debt, on
payment or tender to the mortgagee, the mortgage money
or balance thereof or deposit in the court. The right to
seek foreclosure is co-extensive with the right to seek
redemption. Since right to seek redemption accrues only
on payment of the mortgage money or the balance
thereof after adjustment of rents and profits from the
interest thereof, therefore, right of foreclosure will not
accrue to the mortgagee till such time the mortgagee
remains in possession of the mortgaged security and is
RSA No. 1209 of 2007 (3)appropriating usufruct of the mortgaged land towards the
interest on the mortgaged debt. Thus, the period of
redemption or possession would not start till such time
usufruct of the land and the profits are being adjusted
towards interest on the mortgage amount. In view of the
said interpretation, the principle that once a mortgage,
always a mortgage and, therefore always redeemable
would be applicable.
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 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
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
will arise on the date when the mortgagor pays or tenders
RSA No. 1209 of 2007 (4)
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.”
In view of the Full Bench Judgment in Ram Kishan’s case
(supra), the present appeal is dismissed, though on a different ground than
what weight with the learned first Appellate Court.
(HEMANT GUPTA)
JUDGE
05-09-2009
ds