Narinder Singh vs Anoop Singh and another

S.S. Dewan, J.

In order to arrive at a correct decision in this second appeal filed by the defendants, it is necessary to set out the facts not only in detail but also with precision.

Piare Lal defendant owned 16 Kanals 10 Marlas of land and he mortgaged it on 5.4.1963 to Narinder Singh and Santokh Singh defendants for Rs. 9,200/. Afterwards on 12.9.1969, through another registered mortgage deed, Piare Lal mortgaged the suit land in favour of Anup Singh plaintiff for Rs. 16,000/ for a fixed term of ten years. As per terms of the subsequent mortgage deed, a sum of Rs. 9,200/ was left with the plaintiff out of the mortgage amount of Rs. 16,000/ for payment to the previous mortgagees namely Narinder Singh and Santokh Singh. However, before the expiry of the period of mortgage in favour of the defendants, Piare Lal sold the land in question along with some other land to Narinder Singh and Santokh Singh defendants for Rs. 44,000/ vide sale deed dated 11.6.1971. In the sale deed Ex. D. 1, it has been specifically mentioned that the land shall be got redeemed by Narinder Singh and Santokh Singh, vendees, after making payment of the mortgage money to the plaintiff. The plaintiff requested the defendants to accept the mortgage amount of Rs. 9,200/ and redeem the suit land in his favour and also requested them to put him in possession. The defendants did not agree. Consequently, the plaintiff moved an application under section 4 of the Punjab Redemption of Mortgages Act before the Collector, Ajnala, seeking redemption of the suit land on payment of the mortgage amount but the same was dismissed on 17.12.1973. The plaintiff then filed a suit to get the order of the Collector set aside and also sought possession of the suit land through its redemption on payment of Rs. 9,200/ to the prior mortgagees. The defendants controverted the averments made in the plaint.

It is not necessary to advert to the several issues framed by the trial Court. The controversy in the Courts below really centered around the matter whether the plaintiff is entitled to redeem the land; if so, on what terms? The suit was dismissed by the trial Court but decreed by the lower appellate Court. The learned Additional District Judge, Amritsar, while decreeing the plaintiff''s suit directed that the plaintiff should be put in possession of the suit land as a mortgagee under the terms of mortgage deed Ex. P.1, and the defendants Narinder Singh and Santokh Singh as owners of the suit land shall be entitled to get the suit land redeemed according to law from the plaintiff on payment of the mortgage amount of Rs. 6,800/ and recover back its possession. Feeling aggrieved, the defendants have now come up in appeal.

The submission of the learned counsel for the defendantsappellants is that the lower appellate Court had failed to appreciate that after the sale of the suit land to the defendants, no mortgage in their favour subsisted, for the smaller estate merged in the ownership and there could not be redemption of a nonexisting mortgage. In support of this argument, reliance was placed on a Full Bench decision in Gokal Chand and another v. Rahman and others, 1908 P.L.R. 152. I regret my inability to accept this contention. In Gokal Chand''s case (supra), it was held ``that in the absence of a special contract to the contrary when a mortgagee fails to pay to the mortgagor or a previous encumbrancer the whole or a portion of the mortgagemoney at the time fixed for payment or within reasonable time when no time is fixed therefor, the mortgage transaction remains incomplete and the mortgagee is not entitled to any benefit under the mortgage even on payment of the unpaid mortgagemoney; it is immaterial whether the nonpayment has, or has not, caused inconvenience or loss to the mortgagor.''''

The facts of that case are clearly distinguishable and the ratio thereof is not at all applicable to the facts and circumstances of this case. There is a common ground between the parties that Anup Singh plaintiff was a mortgagee for usufructuary mortgage for a fixed term of ten years as defined in section 5(d) of the Transfer of Property Act (for short, the Act) which reads as follows :

``Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgagemoney, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgagemoney, the transaction is called and unsufructuary mortgage and the mortgagee an unsufructuary mortgagee.''''

After the land was purchased by the previous mortgagees vide sale deed Ex. D. 1, the vendees (previous mortgagees) namely Narinder Singh and Santokh Singh became the mortgagors qua Anup Singh, the subsequent mortgagee, by virtue of section 59A of the Act, which reads as under :

``Unless otherwise expressly provided, reference in this Chapter to mortgagors and mortgagees shall be deemed to include references to persons deriving title from them respectively.''''

This section was inserted in the Act by the Amending Act of 1929 to elucidate the legal position on which certain doubts had been expressed in certain judgments prior to 1929.

In the sale deed Ex. D. 1, it has been specifically mentioned that the land shall be got redeemed by Narinder Singh and Santokh Singh, vendees after making payment of the mortgagemoney to Anup Singh son of Tara Singh. This stipulation makes it clear that the mortgage was for a fixed period of ten years and the period of mortgage was to start on the expiry of the previous mortgage. However, before the expiry of the previous mortgage, Narinder Singh and Santokh Singh defendants purchased the land from Piare Lal and, thus, their title as mortgagees merged in the larger title of ownership acquired by them. However, in view of the provisions of section 59A of the Act. Narinder Singh and Santokh Singh became the mortgagors qua Anup Singh, the subsequent mortgagee and, as such, Anup Singh had a right to claim possession of the mortgaged land from Narinder Singh and Santokh Singh and to keep possession thereof for a period of ten years. The decree for possession has been rightly passed by the Additional District Judge in favour of Anup Singh and against the defendantsappellants in respect of the mortgaged land. In this view I am supported by the decisions in Hari Ram Shah v. Mahin Shah, AIR 1928 Lah. 668, and Bawa Kishen Singh v. Nathu Ram and others, AIR 1939 Lah. 235. In Hari Ram Shah''s case (supra) it was held that where a mortgagee brings a suit for possession in pursuance of a condition in the mortgage deed that if principal and interest are not paid off in a certain period, the mortgagee can take possession of the mortgaged property, the mortgagor and persons claiming through him cannot claim redemption in such suit. In Bawa Kishen Singh''s case (supra) it was held that there can be a term fixed in a usufructuary mortgage for the mortgagee''s enjoyment during which redemption cannot take place.

In view of the principle of law enshrined in the above decisions, the contention of the learned counsel for the defendants that he is now prepared to pay the mortgage money back to the plaintiff and the decree for possession passed by the learned Additional District Judge should be set aside, is not tenable. No redemption can be granted in favour of the mortgagors in a suit filed by the mortgagee for possession of the suit land which possession is wrongfully denied to the mortgagee by the mortgagors in a usufructuary mortgage.

In the result, this appeal fails and is dismissed with no order as to costs.