IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
R.S.A. No.4370 of 2001
Date of Decision: 19.5.2009
Smt.Natho Devi and others.
....... Appellants through Shri
R.A.Yadav,Advocate.
Versus
Bhoop Singh and others.
....... Respondent nos.1, 3, 4 & 5
through Shri Rajesh Arora,
Advocate.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
1. Whether Reporters of Local Newspapers 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?
....
Mahesh Grover,J.
This Regular Second Appeal is directed against judgment and
decree dated 21.8.2001 passed by the Additional District Judge, Gurgaon
(hereinafter referred to as `First Appellate Court’) whereby the appeal of the
plaintiffs-respondent nos. 1 to 5 was accepted, the judgment & decree dated
1.3.1999 of the Civil Judge (Junior Division), Gurgaon (described
hereinafter as `the trial Court’) were set aside and their suit was decreed.
Respondent nos. 1 to 5 along with Smt.Kishan Devi (since
deceased and now represented by respondent nos. 1 to 5 being her legal
heirs) had filed a suit for declaration with consequential relief of permanent
injunction and in the alternative, for possession. It was prayed that they be
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declared owners in possession of the land in dispute as the legal heirs of
Hira Lal and Ashrafi, deceased and the defendants – appellants & proforma
respondent nos.6 to 11 be restrained from dispossessing them or interfering
in any manner by way of digging and constructing a wall over it. It was also
prayed that if the appellants & proforma respondent nos. 6 to 11 were
successful in dispossessing them from the land in dispute, then a decree for
possession be also passed in their favour.
It was pleaded that one Nanda son of Nanwa was owner in
possession of the land comprised in Khewat No.1266 measuring 16 biswas
situated in the revenue estate of village Sohna; that Nanda had mortgaged
the said land to Dhan Singh son of Ram Singh on 8.7.1914 for a
consideration of Rs.40 by means of an oral mortgage and handed over the
possession thereof to him; that mutation no.336 dated 27.11.1914 was
sanctioned to that effect; that Nanda was succeeded by his son Puran, who
has since expired and the appellants are his successors-in-interest; that
Dhan Singh was succeeded by his son, Hira Lal, who has also died and
respondent nos. 1 to 5 are his successors-in-interest; that the land
comprised in khasra no.1266 was converted into the land bearing khewat
no. 23, khata no.33, khasra no.437 (4-0) as per jamabandi for the year
1986-87.
On the basis of the above averments, it was prayed by
respondent nos.1 to 5 that since the mortgagor or his successors-in-interest
have failed to redeem the mortgage within the prescribed period of sixty
years, they be declared owner in possession of the suit land.
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Upon notice, the proforma respondents nos. 6 to 11 and Puran,
who were impleaded as defendants in the suit, appeared and filed two
separate sets of written statement. In their written statement, the proforma
respondents nos. 6 to 11 pleaded that respondent nos. 1 to 5 have got no
right, title or interest on the land bearing Rect.No.441 (3-0) situated in the
revenue estate of village Sohna because they have sold the same to some of
them; that respondent nos. 1 to 5 are not the legal heirs of Hira Lal; that
respondent nos. 1 to 5 are not owners in possession of the land in dispute
nor they were mortgagees as alleged; that the proforma respondent nos. 6 to
8 had purchased the suit land vide registered sale deeds dated 14.11.1973
and 14.9.1983 and that these respondents have become owners in
possession of 2 kanals 15 marlas land out of khasra no.441 and that
respondent nos. 1 to 5 had no cause of action to file the suit.
In his written statement, Puran pleaded that respondent no.1 to
5 had no right, title or interest in the land in dispute; that they had no locus
standi to file the suit; that the mortgage had extinguished on account of use
and occupation of the mortgaged property and income derived therefrom as
well as on account of lapse of time; that the particulars of the mortgage have
not been given and, therefore, the suit was not maintainable in the present
form; that there was no relationship of mortgagor and mortgagee between
him and respondent nos. 1 to 5 and that since these respondents were
acknowledging the mortgage, they have not become the owners in
possession of the land in dispute.
On the pleadings of the parties, the trial Court framed the
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following issues:-
1. Whether the plaintiffs are owners in possession of the land in
dispute on the ground as alleged?OPP
2. Whether the plaintiffs have no right, title or interest in the
property in dispute as alleged?OPP
3. whether the plaintiffs estopped from filing the present suit
by their own, act, conduct etc.?OPD
4. Whether the suit of the plaintiffs is not maintainable in the
present form?OPD
5. Whether the mortgage in question has extinguished on the
grounds stated in the preliminary objection No.5 of the W.S.
If so, to what effect/OPD
6. Relief.
After appraisal of the entire evidence on record, the trial Court
dismissed the suit of respondent nos. 1 to 5, whereas in appeal, its findings
were upset by the First Appellate Court.
Hence, this Regular Second Appeal.
On 2.11.2001, while admitting the appeal, this Court had
directed it to be heard along with R.S.A. No.1611 of 1999.
The Registry has put up this matter for disposal before the
Court with a report that R.S.A.No.1611 of 1999 has since been decided on
22.10.2008 by a learned Single Judge in view of the judgment of the Full
Bench in Ram Kishan and others Versus Sheo Ram and others, decided on
12.12.2007, reported as 2008(1) R.C.R. (Civil) (P&H) 334.
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At the hearing, both the learned counsel for the parties are
agreed that this appeal may be disposed of in view of the judgment of the
Full Bench in Ram Kishan’s case (supra).
I have heard the learned counsel for the parties and have gone
through the impugned judgment, as also the above judgment of the Full
Bench.
The questions of law which arise for determination in this
appeal are as under:-
1. Whether the findings recorded by the First Appellate Court
are perverse and are liable to be set aside?
2. Whether the mortgage in this case is a usufructuary
mortgage or a simple mortgage and is redeemable even today
and the rights of the mortgagor not extinguished by efflux of
time?
In Ram Kishan and others (supra), the Full Bench in
paragraphs 30,31,32 and 42 has observed as under:-
“30. Thus, the right of redemption by act of parties can be
extinguished by independent contract subsequent to the
mortgage and not by an unilateral act on the part of the
mortgagee under the mortgage.
31. In Ganga Dhar’s case (supra), Hon’ble Supreme Court was
examining a mortgage which was for a period of 85 years but
the same was sought to be redeemed before the expiry of the
said period on the ground that such long period amounts to
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clog on redemption. The Court to the following effect:-
“The right of redemption, therefore, cannot be taken
away. The Courts will ignore any contract the effect of
which is to deprive the mortgagor of his right to redeem
the mortgage. One thing, therefore, is clear, namely,
that the term in the mortgage contract, that on the failure
of the mortgagor to redeem the mortgage with the
specified period of six months the mortgagor will have
no claim over the mortgaged property, and the mortgage
deed will be deemed to be deed of sale in favour of the
mortgagee, cannot be sustained. It plainly takes away
altogether, the mortgagor’s right to redeem the mortgage
after the specified period. This is not permissible, for
“once a mortgage always a mortgage” and, therefore,
always redeemable. The same result also follow from
Section 60 of the Transfer of Property Act….”
32.The said judgment was quoted extensively by the Hon’ble
Supreme Court in Harbans’s case (supra), which arose out of a
judgment of this Court reported as Harbans v. Om Parkash,
1998(1) RCR (Civil) 678 : 1998(2) PLR 172. The order passed
by this Court is reproduced for ready reference:-
“1. This is plaintiff’s second appeal.
2. Plaintiff filed civil suit contending therein that the
land in dispute was mortgaged by the ancestors of
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One Bhira with the fore-fathers of plaintiff and
mortgage has not been got redeemed by the mortgagor
within 30 years and so, the plaintiff and defendants 2
and 3 have become owners by efflux of time. Upon
notice of suit, defendant No.1 contested the suit and
alleged that mortgage has already been redeemed. He
denied that plaintiff and defendants 2 and 3 have
become owners by efflux of time. Trial Court decreed
the suit, but on appeal by defendant No.1 judgment of
the trial Court has been modified and it has been held
that plaintiff and defendants 2 and 3 have not become
owners as there is no period of limitation to redeem
usufructuary mortgage. It has, however, been held that
defendant No.1 has failed to prove the mortgage has
been redeemed. Against the judgment and decree of
the first appellate Court, plaintiff has come in second
appeal.
3. Learned counsel appearing on behalf of plaintiff
relying upon judgment of the Apex Court in State of
Punjab and others v. Ram Rakha and others, 1998(3)
RCR (Civil) 124 : JT 1997(2) SC 577, has contended
that by not redeeming the mortgage within the
stipulated period, mortgagor has lost right to redeem
the same.
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4. After hearing the counsel and going through the
record, I am of the view that the judgment cited by the
counsel for plaintiff in Ram Rakha’s case (supra) , the
point in issue was not considered. In this case, it is the
admitted case of the parties that mortgagee is in
possession of the property in dispute and no evidence
has been brought on record by the mortgagee to show
that mortgage was for a fixed period. Since no time
was prescribed for redeeming the land, the
mortgagor has the right to get the property redeemed,
there being no limitation for redeeming the said
mortgage (emphasis supplied). In this regard,
reference be made to judgment in Panchanan Sharma
v. Basudeo Prasad Jaganani and others, 1995 HRR
575. Consequently, this appeal being without any
merit shall stand dismissed.”
42.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 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.”
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The facts of the instant case reveals that the mortgage of the
suit land by the predecessor-in-interest of the appellant in favour of the
predecessor-in-interest of respondent nos. 1 to 5 was not disputed. The
possession of the suit land was also handed over at that time and no time
limit was fixed for redemption of the mortgage. Therefore, it was a
usufructuary mortgage not a simple mortgage.
In this view of the matter, the observations of the Full Bench
reproduced above are straight-away attracted to the facts of the instant case
and the mortgage could be redeemed at any time being usufructuary
mortgage.
The questions of law, as mentioned above, are, therefore,
answered to say that the mortgage in this case was a usufructuary mortgage
and not a simple mortgage and it could be redeemed at any time and that the
findings recorded by the First Appellate Court are liable to be set aside.
Accordingly, this appeal is accepted, the judgment & decree of
the First Appellate Court are set aside and the appellants or the proforma
respondents, who are said to be bona fide purchasers of the suit land, are
held entitled to get redeemed the mortgaged suit property by paying the
mortgage money to the successors-in-interest of the original mortgagee.
May 19,2009 ( Mahesh Grover ) "SCM" Judge