Sain Pal vs Smt. Ashrafi and Others

Mahesh Grover, J.—C.M. No. 1886-C of 2009 After hearing learned Counsel for parties, prima facie this Court is of the opinion that the matter is covered by Full Bench judgment in case titled as Ram Kishan and Others Vs. Sheo Ram and Others, .

R.S.A. No. 653 of 2000

C.M. allowed and the appeal is taken up for hearing today.

This is defendant''s second appeal directed against the judgment of the learned Trial Court dated 9.11.94 and that of the First Appellate Court dated 29.11.99.

The brief facts of the case are that Bharta son of Harbaksh was owner of the agricultural land which has been described in the plaint. He mortgaged 1/3rd land with one Bohru and remaining 2/3rd land with other two persons namely Lachhman and Gokal who were arrayed as defendant No. 13 and 14 vide registered mortgage deed dated 29.4.54. Later on these two persons namely Lachhman and Gokal sold their 2/3rd share of mortgage rights to Bohru, predecessor in interest of the present plaintiff-respondent in the year 1960 and it was pleaded that in this manner Bohru had became mortgagee in possession of the entire suit land. It was further pleaded that Revenue Authorities without any notice to Bohru sanctioned mutation No. 247 dated 23.11.1968 to his detriment and in favour of Sugat and Gian sons of Todar which mutation was wrong and illegal. It was next pleaded that after the death of Bohru the present plaintiff-respondent had inherited his property being his only legal heir and she is in possession of the suit property which was never got redeemed by the mortgagor and that defendants No. 3 to 6 Budhi, Parkash and Sain Pal obtained a collusive decree vide which Smt. Budho (defendant No. 1) and Smt. Phoolu, predecessor-in-interest of Dharambir arrayed as defendant No. 2 are alleged to have transferred all their rights, title and interest in their favour and that the revenue entries in favour of other defendants N0.6 to 12 have been wrongly shown as mortgagees qua half share of the land.

Sain Pal who was arrayed as defendant No. 6 filed separate written statement in which he pleaded that Todar never had a son named Giasi and in fact he does not exist at all and he is the only legal heir of Todar. It was pleaded that the suit is barred by time and that he has become owner in possession of the suit land by holding the same for last 28 years and thus has acquired its ownership by way of adverse possession. It was denied that Bharta has executed a mortgage to the extend of 1/3rd in favour of Bohru and remaining 2/3rd in favour of Lachhman and Gokal as pleaded in the suit. It was further pleaded that the alleged mortgage mentioned in the plaint was actually redeemed long time ago and it was thereafter that he was in possession of the suit property. It was further pleaded that a family settlement has been arrived at between Phoolu; defendant No. 1 and him and suit land had come to the share of Sain Pal, the main contesting defendant.

Both the parties went to trial on the following issues:

Whether Sh. Bharta mortgaged the agricultural land comprised in Khewat No. 26 Khata No. 45, Khasra No. 423 measuring 3 bighas 2 biswas pucca situated in the revenue estate of village Bairampur Tehsil & District Gurgaon to the extent of 1/3rd share with Sh. Bohru son of Ram Singh and with defendants 13 and 14 to the extent of 2/3rd share vide regd. Mortgage deed dated 20.4.54? If so what effect? OPP

Whether the mortgage/mortgages dated 20.4.54 in dispute were redeemed long ago? If so to what effect? OPD

Whether defendant No. 6 has been in possession as owner of the suit land. If so to what effect? OPD

Whether defendants 13 and 14 sold their 2/3rd share of mortgage rights to Sh. Bohru s/o Ram Singh predecessor in interest of the plaintiff in the year 1960 qua the suit land if so Sh. Bohru became the mortgage in possession of the entire suit land. If so to what effect? OPP

Whether mutation No. 247 dated 13.11.1963 in favour of the father of the plaintiff Bohru and Sugat and Gian sons of Todar is wrong, illegal void abinitio nonest and without jurisdiction? If so to what effect? OPP

Whether land comprised in Rect. No. 12 killa No. 9/2(6-18), 8 (8-0) Khewa. No. 224 khata No. 80 was allotted in lieu of the suit land measuring 3 bighas 2 biswas detailed in para 1 of plaint? If so to what effect? OPP

Whether the plaintiff is in possession of the suit land? If so to what effect? OPP

Whether a family settlement between the Phoolu and defendant No. 1 and defendant No. 6 had taken place and in the settlement the suit land fell to defendants No. 6? If so to what effect? OPD(6)

Whether defendants 6 to 12 have been wrongly shown mortgagee of the 1/2 share in the suit land? If so to what effect?

Whether Sampat s/o Todar died about 30 years ago and if so whether the suit has been filed against dead person and is invalid? If so to what effect? OPD

Whether Todar did not have a son named Giasi (defendant No. 8) and that defendant No. 6 is only heir of Todar? If so to what effect? OPD

Whether the suit is not maintainable in the present form as alleged in para 1 of the preliminary objection? OPD

Whether the suit is within time, if so to what effect? OPD

Whether defendant No. 1 has become owner in possession by way of his adverse possession as alleged in para 1 of preliminary objection. If so to what effect? OPD

Relief.

The Trial Court on the, basis of the evidence before it partly decreed the suit of the plaintiff-respondents and held that she is the owner in possession of the suit property to the extent of 1/2 share and not in respect of the entire land.

In appeal before learned First Appellate Court preferred by the defendants, the findings were affirmed and it was held that since the property had not been redeemed within a period of 30 years i.e. prescribed period of limitation under Limitation Act, the appeal had to be dismissed.

Aggrieved by the aforesaid findings, present regular second appeal has been filed by the defendant.

It is contended by the learned Counsel for the appellant that the mortgage which existed in favour of the plaintiff-respondent can be redeemed at any time since it was usufructuary mortgage and the findings recorded by the learned First Appellate Court are erroneous wherein it was held that since the mortgage was not redeemed within the prescribed period of limitation, plaintiff-respondent had become owner of the suit property. Reliance was placed on Full Bench decision in case titled as Ram Kishan and Ors. v. Sheo Ram and Ors. (2008) 145 P.L.R. 1 wherein it was observed as under:

After considering the aforesaid judgments, we respectfully agree that the view of the Full Bench of this Court in Lachhman Singh''s case (supra) and that of Patna High Court in Jadubans Sahai''s case (supra). The provisions of Section 60, 62 and 67 of the Transfer of Property Act are not applicable within the jurisdiction of this Court. Therefore, these provisions are required to be interpreted keeping in view the principles of equity and good conscious. Since the mortgage is essentially and basically a conveyance in law or an assignment of chattels as a security for the payment of debt or for discharge of some other obligation for which it is given, the security must, therefore, be redeemable, on the payment or discharge of such debt or obligation. That is the view of the Hon''ble Supreme Court in Pomal Kanji Govindji''s case (supra) wherein it has also been held that poverty should not be unduly permitted to curtail one''s right to borrow money. Since at one point of time the mortgagor for one or the other reason mortgaged his property to avail financial assistance on account of necessities of life, the mortgagor''s right cannot be permitted to be defeated only on account of passage of time. The interpretation sought to be raised by the mortgagees is to defeat the right of mortgagor and is wholly inequitable and unjust. The mortgagee remains in possession of the mortgaged property; enjoys the usufruct thereof and, therefore, not to lose anything by returning the security on receipt of mortgage debt.

Section 60 of the Act is general in nature applicable to all kinds of mortgagees including usufructuary mortgage which is evident from Clause (b) of Section 60 of the Act, where the mortgagee in possession of the mortgaged property is required to deliver possession to the mortgagor. But Section 62 of the Act is a special provision dealing only with the rights of usufructuary mortgagor. In terms of Clause (a) of Section 62 of the Act. the suit is for possession after the mortgage comes to an end by self redeeming process as the mortgagee is authorised to pay himself the mortgage money from the rents and profits of the property. The mortgagee has to look to the rents and profits only to repay himself and when his entire charge is so liquidated he must re-deliver possession of the mortgaged property to the mortgagor. However, in terms of Clause (b) of Section 62 of the Act, the right of the mortgagor will arise only after rents and profits derived by the mortgagee out of the usufruct of the mortgaged property are adjusted towards the interest or the principal and on mortgagor paying the balance in the manner prescribed. In such mortgages, rents and profits are to be set off against interest and the mortgagee is entitled to retain possession until such time as the mortgagor chooses to redeem on payment of the principal sum secured. Such right for possession will accrue after the mortgage money is paid off.

The limitation of 30 years under Article 61(a) begins 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 coextensive with the right to seek redemption. Since right to seek redemption accrue 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 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.

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 Vs. Shankar Lal and Others, as well as judgments of Hon''ble Supreme Court in Jayasingh Dnyanu Mhoprekar and Another Vs. Krishna Babaji Patil and Another, , Pomal Kanji Govindji''s case AIR 1989 S.C. 346 (supra), Panchanan Sharma Vs. Basudeo Prasad Jaganani and others, and Ram Saran and Another Vs. State of Punjab and Others, , in preference to the judgments relied upon by the mortgagees in Prabhakaran and Others Vs. M. Azhagiri Pillai (Dead) by LRs. and Others, and Sampuran Singh and Others Vs. Smt. Niranjan Kaur and Others, .

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.

Learned Counsel for the respondent on the other hand could not controvert the fact that the matter has now been conclusively answered by the Full Bench judgment of this Court in Ram Kishan ''s case (supra).

No other point was urged.

After hearing learned Counsel for the parties, I am of the considered opinion that the matter is squarely covered by the Judgment of this Court in Ram Kishan''s case (supra). There is no time lime prescribed for redemption of the usufructuary mortgage. The respondent cannot be declared to be owner of the suit land.

The question of law that arises for the consideration of this Court is "whether there is any time limit prescribed for redeeming the land under usufructuary mortgage".

In view of the findings recorded by the Full Bench in Ram Kishan''s case (supra), the question of law has already been answered to mean that there is no time limit prescribed for redeeming the land under usufructuary mortgage.

Appeal stands disposed of.