Punjab-Haryana High Court
Pritpal Singh vs Sukhdev Kaur on 9 May, 2024
Author: Alka Sarin
Bench: Alka Sarin
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
226 RSA-431-1999 (O&M)
Date of Decision : 09.05.2024
PRITPAL SINGH (SINCE DECEASED) THR LR & ORS ...Appellants
VERSUS
SUKHDEV KAUR & ORS ...Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Aakash Singla, Advocate and
Ms. Vaishali Singla, Advocate for the appellants.
Mr. Sukant Gupta, Advocate for respondent No.1.
ALKA SARIN, J. (ORAL)
1. The present appeal has been preferred by the plaintiff-
appellants challenging the judgment and decree dated 04.08.1998 passed by
the First Appellate Court whereby the appeal filed by defendant-respondent
No.1 was allowed and the judgment and decree dated 26.05.1994 passed by
the Trial Court has been reversed.
2. The brief facts relevant to the present case are that on
08.04.1990 the plaintiff-appellants filed a suit seeking declaration to the
effect that they were owners in possession of the suit land measuring 21
Kanals and 10 Marlas in the khasra numbers as fully detailed in the plaint as
per the Jamabandi for the year 1985-86 on the ground that the suit land was
mortgaged with possession with the ancestors of the plaintiff-appellants for
more than 50 years and since then the plaintiff-appellants are in possession
as mortgagees and since the defendant-respondents herein had not redeemed
integrity of this judgment/order.
226 RSA-431-1999 (O&M) -2-
the land, therefore, they had perfected the title by efflux of time. It was
further averred in the plaint that the plaintiff-appellants were in possession
of the suit land for more than 50 years as mortgagees of the suit land and
were in adverse possession which was continuous and hostile and to the
knowledge of the defendant-respondents.
3. On notice, defendant-respondents No.2 to 4 and 6 did not
appear in the Court and were proceeded against ex-parte. Defendant No.7
admitted the claim of the plaintiff-appellants. Defendant No.5 did not file a
written statement. Defendants No.1, 8 and 9 filed their written statement on
20.01.1992 raising the legal objection of locus standi and the suit not being
maintainable as well as for non-joinder of necessary parties. A replication
was filed reiterating the contents of the plaint and denying those of the
written statement.
4. On the basis of the pleadings of the parties, the following issues
were framed :-
1) Whether the plaintiffs are mortgagees of the suit
land more than 50 year's and have owners by
efflux of time ? OPP
2) Whether the plaintiff has no locus standi to file this
suit ? OPD
3) Whether the suit is not maintainable in the present
form ? OPD
integrity of this judgment/order.
226 RSA-431-1999 (O&M) -3-
4) Whether the plaintiffs have wrongly described
defendant No.2 and 7 and the suit is bad for mis-
joinder of the parties ? OPD
5. Relief.
5. The Trial Court decreed the suit of the plaintiff-appellants vide
judgment and decree dated 26.05.1994. It is apt to notice at this stage that on
06.04.1993 another suit was preferred by the plaintiff-appellants for
possession on the ground that they were owners in possession of 40 Kanals
of land, which included the suit land in the present suit, having become
owners by way of adverse possession. The appeal preferred by the
defendant-respondent No.1 challenging the judgment and decree dated
26.05.1994 was allowed by the First Appellate Court vide judgment and
decree dated 04.08.1998. Aggrieved by the same the present regular second
appeal has been preferred by the plaintiff-appellants.
6. Learned counsel for the plaintiff-appellants would contend that
since the mortgage deed was not on the record, the period of mortgage could
not be determined and hence the law laid down by the Full Bench of this
Court in Ram Kishan & Ors. Vs. Sheo Ram & Ors. [2008 (1) RCR
(Civil) 334] which has been affirmed by the Supreme Court in the case of
Singh Ram (D) through LRs Vs. Sheo Ram & Ors [AIR 2014 SC 3447]
would not be applicable. It is further the contention that an application was
integrity of this judgment/order.
226 RSA-431-1999 (O&M) -4-
filed by the plaintiff-appellants before the Trial Court under Order 41 Rule
27 CPC which remains pending.
7. Per contra, learned counsel for defendant-respondent No.1
would contend that the plaintiff-appellants never placed on record the
mortgage deed to state that that there was any time period for redemption of
the suit property. In the absence of any time period for redemption of the suit
property there would be no period for redemption as per the law laid down
by the Full Bench of this Court in the case of Ram Kishan & Ors. (supra),
affirmed by the Supreme Court in the case of Singh Ram (D) through LR
(supra). Learned counsel for the defendant-respondent No.1 has further
contended that after having filed the present suit for declaration for having
become owners by efflux of time since the property was not redeemed, a
second suit was filed by the plaintiff-appellants herein for possession of land
measuring 40 Kanals on the basis of having become owners by way of
adverse possession. The 40 Kanals of land included the suit land in the
present case. It is further the contention of the learned counsel that the matter
came upto this Court in proceedings arising out of the suit for possession by
way of adverse possession in RSA-1035-1999 which was dismissed by this
Court vide judgment and decree dated 07.02.2001. The said judgment and
decree dated 07.02.2001 passed in RSA-1035-1999 was not challenged and
hence it has attained finality.
integrity of this judgment/order.
226 RSA-431-1999 (O&M) -5-
8. Heard.
9. In the present case the plaintiff-appellants have come to the
Court claiming to have become owners of the suit property which was
alleged to have been mortgaged with their forefathers 50 years ago and since
the same was not redeemed they claimed to have become owners by efflux
of time. The argument of the learned counsel for the plaintiff-appellants that
since there was no period of redemption which was coming forth, therefore,
the judgment of the Full Bench of this Court in the case of Ram Kishan &
Ors. (supra), affirmed by the Supreme Court in the case of Singh Ram (D)
through LR (supra) would not be applicable deserves to be rejected. The
plaintiff-appellants had approached the Civil Court on the plea that there was
a mortgage, however, neither the date of the mortgage was given nor any
detail of the mortgage is forthcoming. The only stand taken by the plaintiff-
appellants herein was that they were in possession for the last 50 years. In
the absence of any mortgage deed having been brought on the record by the
plaintiff-appellants, it does not lie in the mouth of the plaintiff-appellants to
now say that since there was no time period fixed for the mortgage, hence,
the judgment of Full Bench of this Court in the case of Ram Kishan & Ors.
(supra), affirmed by the Supreme Court in the case of Singh Ram (D)
through LR (supra) would not apply. Infact it applies on all fours.
10. The Full Bench of this Court in the case of Ram Kishan
(supra) has held as under :
integrity of this judgment/order.
226 RSA-431-1999 (O&M) -6-
"40. 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 co-extensive with the right to seek
redemption. Since right to seek redemption accrues 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,
integrity of this judgment/order.
226 RSA-431-1999 (O&M) -7-
always a mortgage and therefore always redeemable
would be applicable.
41. 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's case (supra) as well as
judgments of Hon'ble Supreme Court in Jayasingh
Dnyanu Mhoprekar's case (supra), Pomal Kanji
Govindji's case (supra), Panchanan Sharma's case
(supra) and Harbans's case (supra) in preference to the
judgments relied upon by the mortgagees in
integrity of this judgment/order.
226 RSA-431-1999 (O&M) -8-
Prabhakaran's case (supra) and Sampuran Singh's case
(supra).
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.
43. Having answered the questions of law framed, we do
not find any merit in the present appeal filed by the
mortgagees to seek declaration in respect of their title.
The appeal is dismissed."
11. The Hon'ble Supreme Court in the case of Singh Ram (D)
through LR (supra) has held as under:-
"12. It will be appropriate to refer to the statutory
provisions of the Transfer of Property Act and the
Limitation Act :
"T.P. Act
58. 'Mortgage', 'mortgagor', 'mortgagee', 'mortgage-
integrity of this judgment/order.
226 RSA-431-1999 (O&M) -9-
money' and 'mortgaged' defined.
(a) A mortgage is the transfer of an interest in specific
immoveable property for the purpose of securing the
payment of money advanced or to be advanced by way
of loan, an existing or future debt, or the performance of
an engagement which may give rise to a pecuniary
liability.
The transferor is called a mortgagor, the transferee a
mortgagee; the principal money and interest of which
payment is secured for the time being are called the
mortgage-money, and the instrument (if any) by which
the transfer is effected is called a mortgage-deed.
(b) Simple mortgage - Where, without delivering
possession of the mortgaged property, the mortgagor
binds himself personally to pay the mortgage-money,
and agrees, expressly or impliedly, that, in the event of
his failing to pay according to his contract, the
mortgagee shall have a right to cause the mortgaged
property to be sold and the proceeds of sale to be
applied, so far as may be necessary, in payment of the
mortgage-money, the transaction is called a simple
mortgage and the mortgagee a simple mortgagee.
integrity of this judgment/order.
226 RSA-431-1999 (O&M) -10-
(c) Mortgage by conditional sale - Where, the
mortgagor ostensibly sells the mortgaged property -
on condition that on default of payment of the mortgage-
money on a certain date the sale shall become absolute,
or
on condition that on such payment being made the sale
shall become void, or
on condition that on such payment being made the buyer
shall transfer the property to the seller, the transaction
is called a mortgage by conditional sale and the
mortgagee a mortgagee by conditional sale:
PROVIDED that no such transaction shall be deemed to
be a mortgage, unless the condition is embodied in the
document which effects or purports to effect the sale.
(d) Usufructuary mortgage - Where the mortgagor
delivers possession or expressly or by implication binds
himself to deliver possession of the mortgaged property
to the mortgagee, and authorizes him to retain such
possession until payment of the mortgage-money, 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
integrity of this judgment/order.
226 RSA-431-1999 (O&M) -11-
mortgage-money, or partly in lieu of interest or partly in
payment of the mortgage-money, the transaction is
called a usufructuary mortgage and the mortgagee a
usufructuary mortgagee.
(e) English mortgage - Where the mortgagor binds
himself to repay the mortgage-money on a certain date,
and transfers the mortgaged property absolutely to the
mortgagee, but subject to a proviso that he will re-
transfer it to the mortgagor upon payment of the
mortgage-money as agreed, the transaction is called an
English mortgage.
(f) Mortgage by deposit of title-deeds - Where a
person in any of the following towns, namely, the towns
of Calcutta, Madras, and Bombay, and in any other
town which the State Government concerned may, by
notification in the Official Gazette, specify in this behalf,
delivers to a creditor or his agent documents of title to
immovable property, with intent to create a security
thereon, the transaction is called a mortgage by deposit
of title-deeds.
(g) Anomalous mortgage - A mortgage which is not a
simple mortgage, a mortgage by conditional sale, a
integrity of this judgment/order.
226 RSA-431-1999 (O&M) -12-
usufructuary mortgage, an English mortgage or a
mortgage by deposit of title-deeds within the meaning of
this section is called an anomalous mortgage.
60. Right of mortgagor to redeem
At any time after the principal money has become due,
the mortgagor has a right, on payment or tender, at a
proper time and place, of the mortgage-money, to
require the mortgagee (a) to deliver to the mortgagor
the mortgage-deed and all documents relating to the
mortgaged property which are in the possession or
power of the mortgagee, (b) where the mortgagee is in
possession of the mortgaged property, to deliver
possession thereof to the mortgagor, and (c) at the cost
of the mortgagor either to re-transfer the mortgaged
property to him or to such third person as he may direct,
or to execute and (where the mortgage has been effected
by a registered instrument) to have registered an
acknowledgment in writing that any right in derogation
of his interest transferred to the mortgagee has been
extinguished:
Provided that the right conferred by this section has not
been extinguished by the act of the parties or by decree
integrity of this judgment/order.
226 RSA-431-1999 (O&M) -13-
of a court.
xxx
62. Right of usufructuary mortgagor to recover
possession
In the case of a usufructuary mortgage, the mortgagor
has a right to recover possession of the property
together with the mortgage-deed and all documents
relating to the mortgaged property which are in the
possession or power of the mortgagee, -
(a) where the mortgagee is authorised to pay himself
the mortgage-money from the rents and profits of the
property, - when such money is paid;
(b) where the mortgagee is authorised to pay himself
from such rents and profits or any part thereof a part
only of the mortgage-money, when the term (if any)
prescribed for the payment of the mortgage-money has
expired and the mortgagor pays or tenders to the
mortgagee the mortgage money or the balance thereof
or deposits it in court hereinafter provided.
xxx
Limitation Act :
Article 61 By a mortgagor
integrity of this judgment/order.
226 RSA-431-1999 (O&M) -14-
a) To redeem or Thirty years When the right to
recover redeem or to
possession of recover
immovable possession
property accrues
mortgaged
b) xxx xxx xxx
(emphasis supplied)
A perusal of above provisions shows that Article 61
refers to right to redeem or recover possession. While
right of mortgagor to redeem is dealt with under section
60 of the Transfer of Property Act, the right of
usufructuary mortgagor to recover possession is
specially dealt with under Section 62. Section 62 is
applicable only to usufructuary mortgages and not to
any other mortgage. The said right of usufructuary
mortgagor though styled as right to recover possession'
is for all purposes, right to redeem and to recover
possession. Thus, while in case of any other mortgage,
right to redeem is covered under Section 60, in case of
usufructuary mortgage, right to recover possession is
dealt with under Section 62 and commences on payment
of mortgage money out of the usufructs or partly out of
the usufructs and partly on payment or deposit by the
integrity of this judgment/order.
226 RSA-431-1999 (O&M) -15-
mortgagor. This distinction in a usufructuary mortgage
and any other mortgage is clearly borne out from
provisions of sections 58, 60 and 62 of the Transfer of
Property Act read with Article 61 of the Schedule to the
Limitation Act. Usufructuary mortgage cannot be
treated at par with any other mortgage, as doing so will
defeat the scheme of section 62 of the Transfer of
Property Act and the equity. This right of the
usufructuary mortgagor is not only an equitable right, it
has statutory recognition under section 62 of the
Transfer of Property Act. There is no principle of law on
which this right can be defeated. Any contrary view,
which does not take into account the special right of
usufructuary mortgagor under section 62 of the Transfer
of Property Act, has to be held to be erroneous on this
ground or has to be limited to a mortgage other than a
usufructuary mortgage. Accordingly, we uphold the view
taken by the Full Bench that in case of usufructuary
mortgage, mere expiry of a period of 30 years from the
date of creation of the mortgage does not extinguish the
right of the mortgagor under section 62 of the Transfer
of Property Act.
integrity of this judgment/order.
226 RSA-431-1999 (O&M) -16-
xxx
15. We, thus, hold that special right of usufructuary
mortgagor under section 62 of the Transfer of Property
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."
12. The argument of the learned counsel for the plaintiff-appellants
that the application under Order 41 Rule 27 CPC remains pending and hence
the matter may be remanded back also deserves to be rejected. The civil suit
was filed in the year 1990. The matter has been pending before this Court
since 1999. On a query by this Court as to the nature of the additional
evidence which was sought to be lead, learned counsel for the plaintiff-
appellants has candidly admitted that the said evidence has nothing to do
with the date of the mortgage deed. In the considered view of this Court,
since the application itself does not further the case of the plaintiff-
integrity of this judgment/order.
226 RSA-431-1999 (O&M) -17-
appellants, there would be no requirement to remand the matter back. In the
absence of the mortgage deed the judgment of the Full Bench of this Court
in the case of Ram Kishan & Ors. (supra), affirmed by the Supreme Court
in the case of Singh Ram (supra), would apply on all fours in the present
case. It is also to be noticed that on the one hand a stand has been taken by
the plaintiff-appellants that they had become owners by efflux of time and
on the other hand during the pendency of the first suit a second suit was filed
for possession of land measuring 40 Kanals, including the Khasra number
mentioned in the present suit, on the ground that they had become owners by
way of adverse possession. The two pleas are absolutely contradictory in
nature. It is trite that once a suit was filed for adverse possession impliedly
the ownership of the defendant-respondents was admitted.
13. In view of the above, no question of law, much less any
substantial question of law, arises in the present case. The present appeal is
devoid of any merit and is dismissed. Pending applications, if any, also stand
disposed off.
09.05.2024 (ALKA SARIN)
Aman Jain JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: Yes/No
integrity of this judgment/order.
