Ram Kanwar and Others vs Bir Singh and Others

K. Kannan, J.—There is no representation for the appellant in RSA No. 3000 of 1986. I have proceeded to examine the case with the assistant of the counsel Shri Nitin Sarin and with the records available in the Court file. Both the appeals arise out of a suit filed by the, plaintiff for a declaration that he has become the owner of the property by the defendants not having redeemed the mortgage and that the plaintiff had prescribed title to the property by lapse on the part of the defendants. The defendants contended that they had actually redeemed the mortgage and they were in possession of the property. The trial Court decreed the suit admitting the plaintiffs claim and finding that when the mortgages had not been redeemed within 30 years from the respective dates of mortgage, namely, 15.04.1909 and 02.08.1912, the defendants'' title to the property would stand extinguished by law. The defendants in appeal obtained reversal of the judgment in part to the extent of the court finding that there was no period of limitation for redemption of usufructuary mortgage and that it would commence only from the demand and refusal for redemption and that the plaintiffs cannot prescribe title to the property by the mortgage not being redeemed within 30 years. The court below, however, granted the relief of injunction, while rejecting the plea of the defendants that the mortgages had been redeemed by them. The appeals are filed both by the plaintiff and the defendants being respectively aggrieved about the judgment declining the prescriptive right as claimed by the plaintiff and the defendants aggrieved by the fact that their contention regarding redemption of mortgage was not accepted and allowing for the relief of injunction against them in favour of the plaintiff.

The issue of whether on failure of the mortgagor to redeem an usufructuary mortgage within 30 years, the mortgagor will lose right to the property and the mortgagee will become the owner was considered by this Court in Ram Kumar and others v. Mohinder and others (Reported as (2012-1)165 PLR 281) in RSA No. 2628 of 1982, dated 08.11.2011. The judgment has taken note of all the decisions of this Court and of the Supreme Court and given a judgment holding that there was no scope for a mortgagee to prescribe title to the property if there had been no alteration in the character of his possession as such mortgagee. This judgment also derives its strength from a Full Bench view of this Court in Ram Kishan and Others Vs. Sheo Ram and Others, holding that even the provision of Section 58(d) of the Transfer of Property Act, defining usufructuary mortgage is not applicable in Punjab and the issue of redemption could only operate on the principles of equity and good conscience. This Court has, however, held that it is not as if, there is no period of limitation at all for redemption, for, that would mean ignoring Section 27 read with Article 61 of the Limitation Act. The proposition laid down was that the right of redemption shall not assume at all times to fall on the date of execution of the mortgage when there is no stipulation as to time.

The mortgagee, who comes by possession, will retain such character till the property is surrendered to the mortgagor and the mortgagee re-enters possession of the property in hostile assertion of title. There exists no right of foreclosure by a mortgagee in possession unless the mortgage was a mortgage by conditional sale, in which situation alone, there could be a decree foreclosing the mortgagor from redeeming the property. The court below has held that there was no proof of redemption of mortgage and possession of the defendants. The lower appellate Court has, therefore, held that the mortgagee in possession is entitled to retain such possession till the property was redeemed and, therefore, secured the relief of injunction for the plaintiff against the defendants. The possession of a mortgagee or his successor is under lawful title and that possession will require to be protected even against the mortgagor or his successor so long as there is no redemption. The judgments of the court below was, under the circumstances, justified and answers correctly the two questions, which are raised in appeal as substantial questions of law. I find no reason to interfere with the judgment and dismiss both the appeals. The defendants will have independent remedy to work their right of redemption in accordance with law and the injunction decree shall operate till that right is exercised and possession taken in accordance with law.