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
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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
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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
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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
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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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