Punjab-Haryana High Court

Nagina Singh vs Dharambir Singh on 13 May, 2024

Author: Alka Sarin

Bench: Alka Sarin

                        RSA No.1321 of 1995                  -1-

                         IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                        211                                     RSA No.1321 of 1995 (O&M)
                                                                Reserved on : 06.05.2024
                                                                Date of Decision : 13.05.2024

                        Nagina Singh (deceased) through LRs                             ....Appellants

                                                         VERSUS

                        Dr. Dharam Bir Singh                                           ....Respondent

                        CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                        Present :   Mr. Babar Bhan, Advocate and
                                    Mr. Jagdeep Singh Rana, Advocate for the appellants.

                                    Mr. Bhag Singh, Advocate for the respondent.

                        ALKA SARIN, J. (Oral)

1. The present appeal has been preferred by the defendant-

appellants aggrieved by the judgment and decree dated 27.01.1995 passed

by the First Appellate Court reversing the judgment and decree dated

24.01.1994 passed by the Trial Court.

2. The brief facts relevant to the present lis are that the plaintiff-

respondent herein filed a suit for declaration that he had become owner of

the suit land by efflux of time. The case set up was that defendant - Nagina

Singh - was owner of the land measuring 02 kanals 19 marlas being 1/5th

share of the land measuring 14 kanals 10 marlas and the land was mortgaged

with possession in favour of the plaintiff-appellant vide mortgage deed dated

23.12.1959 for a consideration of Rs.500/- and the mutation being mutation

No.239 was also sanctioned in favour of the plaintiff-respondent and since

the land has not been redeemed, hence, the plaintiff-respondent had become

owner of the suit land by efflux of time. Written statement was filed by the

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defendant-appellant who stated that the mortgage money amounting to

Rs.2,000/- stood paid on 13.06.1989 through Court of the Collector,

Thanesar and the property stood redeemed and that inadvertently in the order

passed by the Collector the Khasra Nos.13 and 14 were not mentioned. On

the basis of pleadings of the parties the following issues were framed :

1. Whether the plaintiff has become owner of the suit

land as mentioned in para No.1 of the plaint by lapse of

time of mortgage ? OPP

2. Whether the plaintiff has got no locus-standi to file

the present suit ? OPD

3. Whether the plaintiff cannot take any benefit of

technical flaw of procedure, if so to what effect ? OPD

4. Whether the whole of the mortgage money stood

paid to the plaintiff within limitation and if so to what

effect ? OPD

5. Relief.

3. The Trial Court dismissed the suit vide judgment and decree

dated 24.01.1994. Aggrieved by the same an appeal was preferred by the

plaintiff-respondent which appeal was allowed vide judgment and decree

dated 27.01.1995. Hence, the present regular second appeal by the

defendant-appellant.

4. Learned counsel for the defendant-appellant would contend that

the suit itself would not be maintainable in view of the law laid down in the

case of Ram Kishan & Ors. Vs. Sheo Ram & Ors. [2008 (1) RCR (Civil)

334] which has been affirmed by the Hon'ble Supreme Court in the case of

Singh Ram (D) through LRs Vs. Sheo Ram & Ors [AIR 2014 SC 3447].

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5. Heard.

6. As per the law laid down by a Constitution Bench of the

Hon'ble Supreme Court in the case of Pankajakshi (dead) through LR's

& Ors. vs. Chandrika & Ors. [2016 (6) SCC 157] there is no requirement

for framing of substantial questions of law.

7. In the present case the suit filed by the plaintiff-respondent was

for declaration that he had become owner of the suit land by efflux of time.

The Full Bench of this Court in the case of Ram Kishan (supra) has held as

under :

"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

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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.

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

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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."

8. The said judgment of the Full Bench of this Court was affirmed

by the Hon'ble Supreme Court in the case of Singh Ram (D) through LRs

(supra) wherein it has been 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-

money' and 'mortgaged' defined.

(a) A mortgage is the transfer of an interest in specific

immoveable property for the purpose of securing the

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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.

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,

on condition that on such payment being made the sale

shall become void, or

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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

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.

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(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

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,

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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

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.

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xxx

Limitation Act :

Article 61. By a mortgagor

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

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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.