Kanta Devi And Ors vs Om Parkash And Ors

Punjab-Haryana High Court

Kanta Devi And Ors vs Om Parkash And Ors on 2 May, 2024

Author: Anil Kshetarpal

Bench: Anil Kshetarpal

                                Neutral Citation No:=2024:PHHC:061301




RSA-1546-1994 (O&M)                     1     2024:PHHC:061301

IN THE HIGH COURT OF PUNJAB AND HARYANA
                 AT CHANDIGARH

                                        RSA-1546-1994 (O&M)
                                        Reserved on: 22.03.2024
                                        Date of decision: 02.05.2024

Kanta Devi and others
                                               ....Appellants

            Versus

Om Parkash and others
                                              ..Respondents

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL Present:- Mr. Manuj Chadha, Advocate for the appellants ANIL KSHETARPAL, J

1. In this case, respondent no.1 is the contesting respondent, however, despite receipt of notice, he has not entered appearance.

2. After having heard, the learned counsel representing the appellants, the following questions require adjudication by this Court:-

i) Whether redeeming co-mortgagor of usufuctuary mortgage become mortgagee in view of subrogation in an area where Section 92 of the Transfer of Property Act, 1882 (hereinafter referred to as '1882 Act') is not applicable?

ii) Whether non-redeeming mortgagor of usufuctuary mortgage is required to file a suit for possession on payment of his share of 1 of 5 ::: Downloaded on - 07-05-2024 00:00:35 ::: Neutral Citation No:=2024:PHHC:061301 RSA-1546-1994 (O&M) 2 2024:PHHC:061301 mortgage amount within 12 years of redemption by co-mortgagor?

3. With respect to first issue, both the courts below have relied upon the judgment in Jamiat Singh vs. State of Punjab and others AIR 1984 P&H 351. However, in view of the judgment of the Hon'ble Supreme Court in Variavan Saraswathi and Anr vs Eachampi Thevi and others 1993 (Suppl II) SCC 201 the redeeming co-mortgagor would not become step into the shoes of mortgagee. The Supreme Court held that co-mortgagee by redeeming the property does not step into the shoes of the mortgagee. He hold the property in surety or he may bring the claim for contribution while interpretation Section 92 of the 1887 Act. The relevant discussion of the Hon'ble Supreme Court in para 7 and 8, which are extracted as under:-

"7.But these rights in equity, either in favour of the person who discharges the debt or the person whose debt has been discharged, do not result in resumption of relationship of mortgagor and mortgagee. Even under subrogation, a legal concept, meaning substitution, applied, on English Law principle, even earlier, inserted now as Section 92 in Transfer of Property Act since 1929, the rights that are created in favour of a co- mortgagor as a result of discharge of debt are 'so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems'. What is the meaning of expression 'right as mortgagee'? Does a person who, in equity, gets subrogated becomes mortgagee? Or his rights are confined to foreclosure or sale? A plain reading of the section does not warrant a construction that the substitutee becomes a mortgagee. The expression is, 'right as the mortgagee' and not right of mortgagee. The legislative purpose was statutory recognition of 2 of 5 ::: Downloaded on - 07-05-2024 00:00:36 ::: Neutral Citation No:=2024:PHHC:061301 RSA-1546-1994 (O&M) 3 2024:PHHC:061301 the equitable right to hold the property till the co-mortgagor was reimbursed. And not to create relationship of mortgagor and mortgagee. The section confers certain rights on co- mortgagor and provides for the manner of its exercise as well. The rights are of redemption, foreclosure and sale. And the manner of exercise is as mortgagee. The word, 'as' according to Black's Legal Dictionary means, 'in the manner prescribed'. Thus a co- mortgagor in possession, of excess share redeemed by him, can enforce his claim against non- redeeming mortgagor by exercising rights of foreclosure or sale as is exercised by mortgagee under section 67 of the Transfer of Property Act. But that does not make him mortgagee. Therefore, a co-mortgagor or a Junior member of the Tarwad who continued in possession over the excess share, got redeemed by him, could not be deemed to be mortgagee so as to acquire right under Section 4A(1)(a) of the Kerala Land Reforms Act.

8.Legal position explained above does not alter either because during partition equity of redemption in respect of property redeemed by junior members was transferred or because in the plaint it was claimed that mortgage subsisted. None of these actions could effect the operation of law."

4. Keeping in view the aforesaid discussion, the question no.1 is answered in favour of the appellant.

5. Although, the question no.(ii) does not arise in view of the answer to the first question, however, it is important to note that for redemption of usufuctuary mortgage, the period of limitation does not begin to run from the date of the mortgage as laid down in Singh Ram vs. Sheo Ram AIR 2014 SC 3447. It was held that Section 61 of the Schedule appended to the Limitation Act, 1963 (hereinafter referred to as '1963 Act') is not applicable to the redemption of usufuctuary mortgage until the mortgaged money is paid partly out of rents and 3 of 5 ::: Downloaded on - 07-05-2024 00:00:36 ::: Neutral Citation No:=2024:PHHC:061301 RSA-1546-1994 (O&M) 4 2024:PHHC:061301 profits and partly by payment or deposit by the mortgagor. In the absence thereof, the limitation does not start for the purposes of Article 61 to the Schedule appended to the 1963 Act.

6. Keeping in view the aforesaid facts, even if the redeeming co- mortgagor steps into the shoes of the mortgagee, still the period of redemption would not stand curtailed in view of Article 61 (b) of the Schedule attached to the 1963 Act. In para 15, the Hon'ble Supreme Court in Singh Ram's case held as under:-

"We, thus, hold that special right of usufructuary mortgagor under Section 62 of the T.P. Act to recover possession commences in the manner specified therein, i.e., when mortgage money is paid out of rents and profits or partly out of rents and profits and partly by payment or deposit by mortgagor. Until then, limitation does not start for purposes of Article 61 of the Schedule to the Limitation Act. A usufructuary mortgagee is not entitled to file a suit for declaration that he had become an owner merely on the expiry of 30 years from the date of the mortgage. We answer the question accordingly.

7. Even if it is assumed that a redeeming co-mortgagee steps into the shoes of the mortgagee, still his rights cannot be superior to that of the original mortgagee.

8. This is what was held by learned Additional District Judge, Rohtak, in an appeal, which was filed by the plaintiffs against the defendants while challenging the preliminary decree for partition in 4 of 5 ::: Downloaded on - 07-05-2024 00:00:36 ::: Neutral Citation No:=2024:PHHC:061301 RSA-1546-1994 (O&M) 5 2024:PHHC:061301 judgment dated 18.05.1984. Both the courts below have held that the defendants have lost their right in the property as they failed to get it redeemed within the statutory period of 30 years or 12 years from the date the redeeming co-mortgagor paid the amount. Moreover, the plaintiffs filed a suit for declaration on 11.03.1986 whereas as per Article 61(b) of the Schedule appended to the 1963 Act, a mortgagor can file a suit for recovery of possession of immovable property which had been mortgaged and afterwards transferred by mortgagee for valuable consideration is 12 years when the transfer becomes known to the mortgagor. From 07.11.1974, the period of 12 years has not elapsed when the plaintiffs filed the suit. Moreover, there is no evidence that as to when the aforesaid transfer became known to non-redeeming co- mortgagor from 1974.

9. Keeping in view the aforesaid facts and discussion, the judgments passed by the courts below are not sustainable. Hence, the same are set aside. The plaintiff's suit for declaration that he has become owner in possession of the plot shall stand dismissed.

10. The appeal stands allowed.

11. All the pending miscellaneous applications, if any, are also disposed of.

02.05.2024                                      (ANIL KSHETARPAL)
rekha                                                 JUDGE
Whether speaking/reasoned :         Yes/No
Whether reportable :                Yes/No




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