Karnataka High Court
N Narasimhaswamy vs S Narasimhaiah on 26 September, 2025
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RSA No.287 of 2018
C/W RSA Nos. 2173 of 2017
2482 of 2017 &1884/2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 287 OF 2018 (DEC/INJ)
C/W
REGULAR SECOND APPEAL NOS.2173 OF 2017
2482 OF 2017 & 1884 OF 2023
IN RSA No. 287/2018
BETWEEN:
H.N. RAMANNA
S/O LATE NARASIMHAIAH
AGED ABOUT 55 YEARS
R/O HALAGURU VILLAGE
MALAVALLI TALUK
MANDYA DISTRICT - 571 401.
....APPELLANT
Digitally signed by
SHARMA ANAND (BY SRI. RAJA L., ADVOCATE)
CHAYA
Location: HIGH
COURT OF AND:
KARNATAKA
H.K. NARASIMHASWAMY
SINCE DECEASED REP. BY LRS.
1. SMT. H.N. LAXMI
W/O HARISH
D/O LATE H.K. NARASIMHASWAMY
AGED ABOUT 41 YEARS
ALSO CALLED AS
PREETHAMMA @ LAKSHMI
R/O 11/2 CROSS
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THUNGA ICECREAM
LINGAIAHNAPALYA, ALSOOR
BENGALURU -560008.
KEREGODU HOBLI
MANDYA TALUK - 571401.
2. H.K. RAMACHANDRA
S/O LATE KUNNEGOWDA
AGED ABOUT 58 YEARS
3. N. NARASIMHASWAMY
@ H. PRAVEEN
S/O LATE H.K. NARASIMHASWAMY
AGED ABOUT 41 YEARS
RESPONDENTS NO. 2 & 3
ARE R/AT D.NO.104
GANESHA RESIDENCE
NO.1192, BALAKRISHNA RAO ROAD
CHAMARAJAPURAM
MYSURU - 570001.
4. SMT. V. SHANTHA
W/O V. SWAMY
AGED ABOUT 45 YEARS
R/O JPM EXTENSION
HALGURU, MALAVALLI TALUK
MANDYA DISTRICT - 571401.
5. A.S. DEVARAJU
S/O A.G. SHIVALINGEGOWDA
AGED ABOUT 59 YEARS
R/O JPM EXTENSION
HALGURU, MALAVALLI TALUK
MANDYA DISTRICT - 571401.
6. SMT. RADHAMMA
W/O N.U. NARASARAJU
AGED ABOUT 53 YEARS
R/O HALGURU, MALAVALLI TALUK
MANDYA DISTRICT - 571401.
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7. ARAVINDA
S/O LATE H.M. MAHADEVAPPA
AGED ABOUT 40 YEARS
R/O HALGURU, MALAVALLI TALUK
MANDYA DISTRICT - 571401.
8. SMT. PREMA
W/O KRISHNAPPAGOWDA
AGED ABOUT 56 YEARS
R/O HALGURU, MALAVALLI TALUK
MANDYA DISTRICT - 571401.
9. A. KRISHNEGOWDA
S/O LATE KULLASIDDEGOWDA
AGED ABOUT 41 YEARS
R/O HALGURU, MALAVALLI TALUK
MANDYA DISTRICT - 571401.
10. H.S. KRISHNA
S/O SHIVALINGEGOWDA
AGED ABOUT 41 YEARS
R/O JPM EXTENSION
HALGURU, MALAVALLI TALUK
MANDYA DISTRICT - 571401.
11. B.M. PUTTARAJU
S/O LATE B.P. MARIGOWDA
SINCE DECEASED REP. BY LRS.
11(a). YASHODAMMA
W/O LATE B.M. PUTTARAJU
AGED ABOUT 72 YEARS.
11(b). KEMPAMMA
D/O LATE B.M. PUTTARAJU
AGED ABOUT 58 YEARS.
11(c). GEETA B.P.
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D/O LATE B.M. PUTTARAJU
AGED ABOUT 57 YEARS.
11(d). B.P. KESHAVAMURTHY
S/O LATE B.M. PUTTARAJU
AGED ABOUT 56 YEARS.
11(e). B.P. GIREEJA
D/O LATE B.M. PUTTARAJU
AGED ABOUT 54 YEARS.
11(f). CHANDU B.P.
S/O LATE B.M. PUTTARAJU
AGED ABOUT 53 YEARS.
RESPONDENTS NO.11(a) TO 11(f)
ARE R/AT LINGAPATANNA VILLAGE
MALAVALLI TALUK
MANDYA DISTRICT - 571401.
12. B.M. PRAKASH
S/O DODDAMARIGOWDA
AGED ABOUT 45 YEARS
R/O BENAMANAHALLI VILLAGE
HALGURU HOBLI
MALAVALLI TALUK
MANDYA DISTRICT - 571401.
13. RAMAIAH
S/O KRISHNEGOWDA
SINCE DECEASED REP. BY LRS.
13(a). KEMPAMMA
W/O LATE RAMAIAH
AGED ABOUT 73 YEARS
13(b). NAGEGOWDA
S/O LATE RAMAIAH
AGED ABOUT 61 YEARS
13(c). KRISHNE GOWDA
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S/O LATE RAMAIAH
AGED ABOUT 59 YEARS
13(d). LAKSHMAMMA
D/O LATE RAMAIAH
AGED ABOUT 57 YEARS
13(e). VENKATESH K.R.
D/O LATE RAMAIAH
AGED ABOUT 53 YEARS.
RESPONDNETS NO.13(a) TO
13(e) ARE R/AT KONNAPURA VILLAGE
HALAGURU HOBLI
MALAVALLI TALUK
MANDYA DISTRICT - 571 401.
14. K.C. CHOWDEGOWDA
S/O LATE CHOWDEGOWDA
AGED ABOUT 55 YEARS
R/O AALADAHALLI VILLAGE
KASABA HOBLI
MALAVALLI TALUK
MANDYA DISTRICT - 571401.
... RESPONDENTS
(BY SRI. G. PAPI REDDY, SENIOR COUNSEL FOR
SRI. MAHESH B.J., ADVOCATE FOR R1 & R3;
SRI. M.S. ASHWATA REDDY, ADVOCATE FOR R2;
SRI. NITIN RAMESH, ADVOCATE FOR R4 AND R5;
SRI. C. ANANDA, ADVOCATE FOR R6 TO R14)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST
THE JUDGMENT AND DECREE DATED 24TH OCTOBER, 2017
PASSED IN REGULAR APPEAL NO.34 OF 2016 ON THE FILE OF
THE SENIOR CIVIL JUDGE, MALAVALLI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 29TH FEBRUARY, 2016 PASSED IN ORIGINAL SUIT
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NO.19 OF 2007 ON THE FILE OF THE I ADDITIONAL CIVIL
JUDGE & JMFC, MALAVALLI.
IN R.S.A. NO.2173/2017
BETWEEN
S. NARASIMHAIAH
SINCE DECEASED REP. BY LRS.
1. H.N. SUNDAR RAJ
S/O LATE NARASHIMAIAH
SINCE DECEASED REP. BY LRS.
1(a). S. SUJAYA
D/O H.N. SUNDAR RAJ
AGED ABOUT 68 YEARS
1(b). SRI. S. HARSHA
S/O H.N. SUNDAR RAJ
AGED ABOUT 32 YEARS
BOTH ARE R/AT RING ROAD
VALMIKI CIRCLE
MYSURU - 570001.
1(c). SMT. S. LATHA
W/O DUSHAYANTH KUMAR
AGED ABOUT 38 YEARS
R/O SIDDARTHA LAYOUT
SHEELA MARG
MYSURU - 570001.
1(d). SMT. S. SHYLAJA GOVINDA RAJ
W/O GOVIND RAJ
AGED ABOUT 40 YEARS
R/O RAMA MANDIR ROAD
HALAGURU, MALAVALLI TALUK
MANDYA DISTRICT - 571401.
1(e). SMT. REKHA
W/O VENKATARAMANAPPA
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AGED ABOUT 47 YEARS
R/O KUMARASWAMY LAYOUT
NEAR PARK
BENGALURU - 560001.
2. SRI. H.N. PURUSHOTHAMA
S/O LATE NARASHIMAIAH
AGED ABOUT 68 YEARS
R/O C/O SIDDAPPA
(RETIRED EXCISE GUARD)
5TH CROSS, OPP:JAYALAKSHMI THEATRE
MANDYA - 571401.
3. SRI. H.N. RAMANNA
S/O LATE NARASHIMAIAH
AGED ABOUT 54 YEARS
R/O HALGURU VILLAGE
MALAVALLI TALUK - 571430.
4. SRI. H.N. LAXMANA
S/O LATE NARASHIMAIAH
AGED ABOUT 54 YEARS
R/O C/O LATHA
DOOR NO.3739, 12TH CROSS
NEELAKANTANAGAR
NANJANGUDU
MYSURU DISTRICT - 570001.
5. SMT. GOWRAMMA
SINCE DECEASED REP. BY LRS.
APPELLANT NO.1 TO 4.
...APPELLANTS
(BY SRI. RAJA, ADVOCATE FOR A2 TO A4;
SRI. M.B. CHANDRA CHOODA, ADVOCATE FOR A1(a to e);
V/O DATED 27.06.2025 A1 TO A4 ARE LRS OF
DECEASED A5)
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AND
H.K. NARASIMHASWAMY
SINCE DECEASED, REP. BY LRS.
1. NARASHIMASWAMY
S/O LATE H.K. NARASHIMASWAMY
AGED ABOUT 44 YEARS
2. H.N. LAKSHMI
D/O LATE H.K. NARASHIMASWAMY
AGED ABOUT 40 YEARS
BOTH ARE R/AT NO.328, I FLOOR
18TH 'G' MAIN, 6TH BLOCK
KORAMANGALA
BENGALURU.
3. H.K. RAMACHANDRA
S/O LATE KUNNEGOWDA @
KUNNAIAH
AGED ABOUT 57 YEARS
R/AT NO.18/2, EDIGARA BEEDHI
HALAGURU
MALAVALLI TALUK - 571430.
4. SMT. H.N. PREMA
W/O VIDYA SAGAR LANDAMBA
AGED ABOUT 62 YEARS
R/AT H.NO.79, 4TH CROSS
EAST OF VENIGAN BUNGLA
VISHWAKARMA COLONY
GAYATHRIPURAM
MYSURU-570001.
5. H.N. SUMITHRA
D/O H.K. NARASIMAIAH
AGED ABOUT 52 YEARS
R/O SRI. KUDDULUR GOPALA
BEHIND MIDDLE SCHOOL
HALAGURU
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MALAVALLI TALUK - 571 430.
....RESPONDENTS
(BY SRI. G. PAPI REDDY, SENIOR COUNSEL FOR
SRI B.J. MAHESH, ADVOCATE FOR R1;
SRI. M.S. ASWATHA REDDY, ADVOCATE FOR R2 & R3;
R4 AND R5 ARE SERVED AND UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST
THE JUDGMENT AND DECREE DATED 09TH AUGUST, 2017
PASSED IN REGULAR APPEAL NO.36 OF 2012 ON THE FILE OF
THE SENIOR CIVIL JUDGE & JMFC, MALAVALLI, ALLOWING THE
APPEAL AND SETASIDE THE JUDGMENT AND DECREE DATED
01ST AUGUST, 2012 PASSED IN ORIGINAL SUIT NO.59 OF
2007 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE,
MALAVALLI.
IN R.S.A. NO.2482/2017
BETWEEN
N. NARASIMHASWAMY
S/O LATE H.K. NARASIMHASWAMY
AGED ABOUT 40 YEARS
R/AT NO.1529, 1ST FLOOR 'E' BLOCK
6TH MAIN, AECS LAYOUT
KUNDANAHALLI
BENGALURU - 560037.
...APPELLANT
(BY SRI. G. PAPI REDDY, SENIOR COUNSEL FOR
SRI. B.J. MAHESH, ADVOCATE)
AND
S. NARASIMHAIAH
SINCE DECEASED, REP. BY LRS.
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1. H.N. SUNDAR RAJ
S/O LATE S. NARASIMHAIAH
SINCE DECEASED REP. BY LRS.
1(a). SMT. SUJATHA
W/ O LATE H.N. SUNDAR RAJ
AGED ABOUT 68 YEARS
R/AT C/O LATHA S.
NO.325, SHEELAMARGA
SIDDARTHANAGAR
MYSURU - 570011.
1(b). SMT. REKHA S.
D/O LATE H.N. SUNDAR RAJ
AGED ABOUT 47 YEARS
R/AT RASTE JAKKASANDRA
MARALAVADI HOBLI
HAROHALLI TALUK
RAMANAGARA DISTRICT - 562 112.
1(c). SMT. SHYLAJA
D/O LATE H.N. SUNDAR RAJ
AGED ABOUT 40 YEARS
R/O BEHIND RAMA MANDIR STREET
HALAGURU, MALAVALLI TALUK
MANDYA DISTRICT - 571421.
1(d). SMT. LATHA S.
D/O LATE H.N. SUNDAR RAJ
AGED ABOUT 38 YEARS
NO.325, SHEELAMARGA
SIDDARTHANAGAR
MYSURU - 570001.
1(e). SRI. HARSHA N.
S/O LATE H.N. SUNDAR RAJ
AGED ABOUT 32 YEARS
NO.325, SHEELAMARGA
SIDDARTHANAGAR
MYSURU - 570011.
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2. SRI. H.N. PURUSHOTHAM
S/O LATE S. NARASHIMAIAH
AGED ABOUT 55 YEARS
C/O SIDDAPPA
(RETD EXCISE GUARD)
5TH CROSS, OPP. JAYALAKSHMI THEATRE
MANDYA CITY
MANDYA DISTRICT - 571421.
3. H.N. RAMANNA
S/O LATE S. NARASIMHAIAH
AGED ABOUT 40 YEARS
HALAGUR VILLAGE & HOBLI
MALAVALLI TALUK
MANDYA DISTRICT - 571421.
4. SRI. H.N. LAKSHMANA
S/O LATE S. NARASIMHAIAH
AGED ABOUT 40 YEARS
R/AT C/O LATHA,
DOOR NO.3739
12TH CROSS, NEELAKANTA NAGAR
NANJANGUDU TOWN & TALUK
MYSURU DISTRICT -571301.
5. GOWRAMMA
SINCE DECEASED REP. BY LRS.
RESPONDENTS NO.2, 3, 4, 6 & 7
6. SMT. H.N. PREMA
D/O LATE S. NARASIMHAIAH
W/O VIDYA SAGAR BUNGIA
AGED ABOUT 43 YEARS
R/AT H.NO.79, 4TH CROSS
EAST OF VENIGAN, VISHWAKARMA COLONY
GAYATHRIPURAM
MYSURU-570019.
7. H.N. SUMITHRA
D/O S. NARASIMHAIAH
AGED ABOUT 47 YEARS
R/O SRI. KUDDULUR GOPALA
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BEHIND MIDDLE SCHOOL
HALAGURU
MALAVALLI TALUK - 571 421.
8. H.N. LAKSHMI
D/O LATE H.K. NARASHIMASWAMY
AGED ABOUT 34 YEARS
NO.220, 1ST FLOOR
18TH G MAIN, 6TH BLOCK
KORAMANGALA
BENGALURU -560008.
9. H.K. RAMACHANDRA
S/O LATE KUNNEGOWDA @
KUNNAIAH
AGED ABOUT 60 YEARS
R/AT NO.18/2, EDIGARA BEEDHI
HALAGURU
MALAVALLI TALUK - 571421.
....RESPONDENTS
(BY SRI. M.B. CHANDRACHOODA, ADVOCATE FOR R1(a) TO
(e);
SRI. L. RAJA, ADVOCATE FOR R2 TO R4, 6 AND 7;
SRI. ASHWATH REDDY, ADVOCATE FOR R8 AND R9;
V/O DATED 16.04.2025 R2, R3, R4, R6 AND R7 ARE TREATED
AS LRS. OF DECEASED R5)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST
THE JUDGMENT AND DECREE DATED 09TH AUGUST, 2017
PASSED IN REGULAR APPEAL NO.36 OF 2012 ON THE FILE OF
THE SENIOR CIVIL JUDGE, MALAVALLI, PARTLY ALLOWING THE
APPEAL AND SETASIDE THE JUDGMENT AND DECREE DATED
01ST AUGUST, 2012 PASSED IN ORIGINAL SUIT NO.59 OF
2007 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE,
MALAVALLI.
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IN RSA NO.1884/2023
BETWEEN:
H.K. NARASIMHASWAMY
SINCE DECEASED REP. BY LRS
1(a). N. NARASIMHASWAMY
S/O LATE H.K. NARASIMHASWAMY
AGED ABOUT 47 YEARS
FG-06, DSR GREEN VISTA
APARTMENTS ECC ROAD
BENGALURU - 560066.
1(b). SMT. H.N. LAKSHMI
D/O LATE H.K NARASIMHASWAMY
AGED ABOUT 39 YEARS
CAMBRIDGE LAYOUT
BENGALURU - 560008.
...APPELLANTS
(BY SRI. G. PAPI REDDY, SENIOR COUNSEL FOR
SRI. B.J. MAHESH, ADVOCATE)
AND:
S. NARASIMHAIAH
SINCE DECEASED REP. BY LRS.
1(a). H.N. SUNDAR RAJ
S/O LATE NARASIMHAIAH
SINCE DECEASED REPRESENTED BY LRS.
1(a)1. SMT. SUJATHA
W/ O LATE H.N. SUNDAR RAJ
AGED ABOUT 68 YEARS
R/AT C/O LATHA S.
NO.325, SHEELAMARGA
SIDDARTHANAGAR
MYSURU - 570011.
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1(a)2. SMT. REKHA S.
D/O LATE H.N. SUNDAR RAJ
AGED ABOUT 47 YEARS
R/AT RASTE JAKKASANDRA
MARALAVADI HOBLI
HAROHALLI TALUK
RAMANAGARA DISTRICT - 562 112.
1(a)3. SMT. SHYLAJA
D/O LATE H.N. SUNDAR RAJ
AGED ABOUT 40 YEARS
R/O BEHIND RAMA MANDIR STREET
HALAGURU, MALAVALLI TALUK
MANDYA DISTRICT - 571421.
1(a)4. SMT. LATHA S.
D/O LATE H.N. SUNDAR RAJ
AGED ABOUT 38 YEARS
NO.325, SHEELAMARGA
SIDDARTHANAGAR
MYSURU - 570001.
1(a)5. SRI. HARSHA N.
S/O LATE H.N. SUNDAR RAJ
AGED ABOUT 32 YEARS
NO.325, SHEELAMARGA
SIDDARTHANAGAR
MYSURU - 570011.
1(b). SRI. H.N. PURUSHOTHAM
S/O LATE S. NARASIMHAIAH
AGED ABOUT 72 YEARS
C/O SIDDAPPA
(RED EXCISE GUARD)
5TH CROSS, OPP. JAYALAKSHMI THEATRE
MANDYA CITY
MANDYA DISTRICT - 571421.
1(c). SRI H.N. RAMANNA
S/O LATE S. NARASIMHAIAH
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AGED ABOUT 59 YEARS
HALAGUR VILLAGE & HOBLI
MALAVALLI TALUK
MANDYA DISTRICT - 571421.
1(d). SRI. H.N. LAKSHMANA
S/O LATE S. NARASIMHAIAH
AGED ABOUT 59 YEARS
R/AT C/O LATHA,
DOOR NO.3739
12TH CROSS, NEELAKANTA NAGAR
NANJANGUDU TOWN & TALUK
MYSURU DISTRICT -571301.
1(f). SMT. H.N. PREMA
D/O LATE S. NARASIMHAIAH
W/O VIDYA SAGAR BUNGIA
AGED ABOUT 73 YEARS
R/AT H.NO.79, 4TH CROSS
EAST OF VENIGAN,
VISHWAKARMA COLONY
GAYATHRIPURAM
MYSURU-570019.
1(g). H.N. SUMITHRA
D/O S. NARASIMHAIAH
AGED ABOUT 64 YEARS
NEAR JPM COLLEGE
JPM LAYOUT
HALAGURU
MALAVALLI TALUK - 571 421.
2. GOWRAMMA
SINCE DECEASED REP. BY LRS.
RESPONDENTS NO.1(a) TO 1(d), 1(f), 1(g)
3. SRI. T. NARAYANASWAMY
S/O SRI. NARASHIMEGOWDA @
THAMMANA GOWDA
AGED ABOUT 85 YEARS
MALAVALLI TALUK
MANDYA DISTRICT - 571421.
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4. SRI. S. RAMAKRISHNAPPA
S/O SRI. MARTHNDEGOWDA
AGED : MAJOR
R/AT BOODHITHITTUAPTUR DAKALE
PIRIYA PATNA TALUK
MYSURU DISTRICT - 571107.
5. SRI. K. PREMANNA
S/O ANKEGOWDA
AGED ABOUT 62 YEARS
KENCHANADODDI VILLAGE
KASABA HOBLI
KANAKAPURA TALUK
BENGALURU RURAL DISTRICT -571421.
6. SMT. INDIRAMMA
W/O NANJUNDEGOWDA
AGED ABOUT 58 YEARS
HALAGUR VILLAGE
MALAVALLI TALUK
MANDYA DISTRICT - 571421.
7. SRI. H.K. RAMACHANDRA
S/O LATE KUNNAIAH @ KUNNEGOWDA
AGED ABOUT 75 YEARS
HALAGUR VILLAGE
MALAVALLI TALUK
MANDYA DISTRICT -571421.
... RESPONDENTS
(BY SRI. M.B CHANDRACHOODA, ADVOCATE FOR LRS OF
R1(a);
V/O DATED 27.06.2025 NOTICE TO R3 TO R6 ARE DISPENSED
WITH;
SRI. M.S. ASHWATHA REDDY, ADVOCATE FOR R7;
V/O DATED 27.06.2025 R1(a) TO (d) AND R1(f & (g) ARE
TREATED AS LRS. OF DECEASED R2)
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THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST
THE JUDGMENT AND DECREE DATED 27TH JULY, 2023 PASSED
IN REGULAR APPEAL NO.5 OF 2020 ON THE FILE OF THE
SENIOR CIVIL JUDGE & JMFC, MALAVALLI, ALLOWING THE
APPEAL AND SETASIDE THE JUDGMENT AND DECREE DATED
21ST DECEMBER, 2019 PASSED IN ORIGINAL SUIT NO.271 OF
2019 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE & JMFC,
MALAVALLI.
THESE REGULAR SECOND APPEALS HAVING BEEN
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT,
THIS DAY, E.S. INDIRESH J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
CAV JUDGMENT
In RSA No.287 of 2018, the plaintiff has challenged the judgment and decree dated 24.10.2017 in R.A.No.34 of 2016 on the file of the Senior Civil Judge, Malavalli, dismissing the appeal and confirming the judgment and decree dated 29.02.2016 in O.S.No.19 of 2007 on the file of the I Additional Civil Judge and JMFC, Malavalli, dismissing the suit of the plaintiff.
2. In RSA No.2173 of 2017, the legal representatives of defendant No.1 have challenged the
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR judgment and decree dated 09.08.2017 in RA No.36 of 2012 on the file of the Senior Civil Judge, Malavalli, partly allowing the appeal and setting aside the judgment and decree dated 01.08.2012 in O.S.No.59 of 2007 on the file of the I Additional Civil Judge, Malavalli, dismissing the suit of the plaintiffs.
3. In RSA No.2482 of 2017, the legal representative of the plaintiff No.1 has challenged the judgment and decree dated 09.08.2017 in R.A.No.36 of 2012 on the file of the Senior Civil Judge, Malavalli, partly allowing the appeal and setting aside the judgment and decree dated 01.08.2012 in O.S.No.59 of 2007 on the file of the I Additional Civil Judge, Malavalli, dismissing the suit of the plaintiffs.
4. In RSA No.1884 of 2023, the legal representatives of the plaintiff has challenged the judgment and decree dated 27.07.2023 in R.A.No.5 of 2020 on the file of Senior Civil Judge & JMFC, Malavalli,
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR allowing the appeal and setting aside the judgment and decree dated 21.12.2019 in O.S.No.271 of 1991 on the file of the Principal Civil Judge and JMFC, Malavalli, decreeing the suit of the plaintiffs.
5. For the sake of convenience, parties are referred to as per their ranking in OS No.271 of 1991 before the Trial Court (RSA No.1884 of 2023).
FACTS OF THE CASE :
6. Facts in nutshell in respect of RSA No.287 of 2018 are that, the plaintiff has filed suit seeking relief of declaration with consequential relief of permanent injunction. It is the case of the plaintiff that, the plaintiff is son of S. Narasimhaiah. It is stated in the plaint that the brothers of S. Narasimhaiah - H.N.Sundar Raj is the resident of Mysore and another brother of S. Narasimhaiah
- H.N.Purushotham is having an independent business at Mandya. It is stated that the father of the plaintiff - S. Narasimhaiah and his brothers got divided the properties
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR in partition and the suit schedule property has fallen to the share of the father of the plaintiff and thereafter, to the plaintiff. It is also stated in the plaint that, the grand father of the plaintiff - Marthandegowda @ Sirigowda had three children namely, Kunnegowda, S. Narasimhaiah (father of the plaintiff) and S. Ramakrishnappa.
7. It is also stated in the plaint that the first son of grand father of the plaintiff- Kunnegowda has executed mortgage for a period of 3 years in favour of the father of the plaintiff and possession has been handed over to the father of the plaintiff. It is further stated in the plaint that, the said Kunnegowda - Mortgagor has not discharged the mortgage by making payment and not taken possession of the suit schedule property from the father of the plaintiff and as the time stipulated for invoking redemption of the mortgage has expired and therefore, the father of the plaintiff has perfected his title over the suit schedule property as a mortgagee and is in possession of the suit
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR schedule property and therefore, the plaintiff is claiming right over the property in question.
8. It is also stated in the plaint that, the defendant No.1-H.K.Narasimhaswamy, had filed OS No.271 of 1991 seeking declaration in respect of the land to an extend of 2 acres 33 guntas in suit schedule property which came to be decreed in favour of defendant No.1 subject to the right of redemption in mortgage in favour of defendant No.1 and therefore, it is contended by the plaintiff that, the plaintiff has to be declared as owner of the suit schedule property on account of the fact that, the grand father of the defendants-Kunnegowda has not redeemed the mortgage of the suit schedule property.
9. After service of summons, the defendants entered appearance and filed the written statement. It is the case of defendant Nos.1 to 3 that, the total extent of suit property is measuring 05 acres 25 guntas, wherein, Kunnegowda got 02 acres 33 guntas and S.Narasimhaiah
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR and Ramakrishnaiah got 01 acre 16 guntas each. It is also stated that, the suit filed by defendant No.1- H.K.Narasimhaswamy in O.S.No.271 of 1991 decreed on 21.12.2019 and therefore, it is contended that the suit filed by the plaintiff requires to be dismissed.
10. Defendant Nos.4, 5, 7, 9, 10 and 13 have filed detailed written statement contending that defendant No.4 being a bonafide purchaser of the land to an extent of 02.02 guntas in Sy.No. 64/C as per registered Sale Deed dated 10.11.1999 and these defendants are in possession of the suit schedule property. Similarly, defendant Nos.5, 7, 9, 10 and 13 claim to be the purchasers of the bits of the land in Sy.No.64/C and as such these defendants sought for dismissal of the suit.
11. Based on pleadings on record, the Trial Court has framed the issues for its consideration.
12. In order to establish their case, the plaintiff examined himself as PW1 and marked 17 documents as
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR Exhibits P1 to P17. Defendants have examined 10 witnesses as DW1 to DW10 and marked 52 documents as Exhibits D1 to D52.
13. The Trial Court based on record, by its judgment and decree dated 29.02.2016, dismissed the suit and feeling aggrieved by the same, plaintiff has filed R.A.No.34 of 2016 before the First Appellate Court. The appeal was resisted by the defendants. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 24.10.2017 dismissed the appeal, consequently, confirmed the judgment and decree in O.S.No.19 of 2007. Feeling aggrieved by the same, the plaintiff has preferred RSA No.287 of 2018.
14. RSA No.2173 of 2017 and RSA No.2482 of 2017 are arising out of common judgment and decree passed by the First Appellate Court in R.A.No.36 of 2012.
15. Facts in nutshell in RSA No.2173 of 2017 and RSA No.2482 of 2017 are that, the legal representatives of
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR Kunnegowda filed O.S.No.59 of 2007. It is the case of the plaintiffs that, the suit schedule property bearing Sy.No.64 of Halaguru village consisting of 05 acres 25 guntas is the ancestral property of the plaintiffs. The plaintiffs' grand father-Kunnegowda got 02 acres 33 guntas in the partition. It is further stated in the plaint that original propositus-Marthandegowda @ Sirigowda had 3 sons namely, Kunnegowda (father of original plaintiff-
H.K.Narasimhaswamy), the original defendant -
S.Narasimhaiah and S.Ramakrishnappa. The plaintiffs are not disputing the share of the parties. It is the case of the plaintiffs that, the father of original plaintiff- Kunnegowda had mortgaged the suit property in favour of the defendant-S.Narasimhaiah as per the registered Mortgage Deed dated 07.06.1952, registered on 12.06.1952 to an extent of 01 acre 33 guntas out of total extent of 02 acres 33 guntas. It is also stated that the remaining 01 acre of the suit property was mortgaged in favour of one Madegowda by the father of original plaintiff-Kunnegowda
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR as per the Mortgage Deed dated 24.09.1951 and same was registered on 27.09.1951. It is also stated that, during 1973, the legal representatives of Kunnegowda had paid the entire mortgage amount to the defendants and accordingly, the suit property was redeemed in favour of the said Kunnegowda. It is also stated that possession is also with the father of original plaintiff - Kunnegowda. It is the case of the plaintiffs that, the defendants are interfering with the peaceful possession and enjoyment of the suit schedule property and as such, plaintiffs have filed a suit, seeking redemption of mortgage in OS No. 59 of 2007.
16. After service of notice, the defendants entered appearance and filed detailed written statement. It is the specific case of the defendants that, the suit is barred by time and there is no redemption of mortgage as contended by the plaintiffs and accordingly, sought for dismissal of the suit.
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR
17. The Trial Court based on pleadings on record has formulated the issues for its consideration.
18. In order to establish their case, plaintiffs have examined 03 witnesses as PW1 to PW3 and got marked 15 documents as Exhibits P1 to P15. The defendants have examined one witness as DW1 and got marked 23 documents as Exhibits D1 to D23.
19. The Trial Court after considering the material on record, by its judgment and decree dated 01.08.2012 dismissed the suit and feeling aggrieved by the same, the legal representatives of the plaintiffs have filed R.A.No.36 of 2012 before the First Appellate Court. The said appeal was contested by the defendants. The First Appellate Court vide judgment and decree dated 09.08.2017 partly allowed the appeal and as such set aside the judgment and decree in O.S.No.59 of 2007. Feeling aggrieved by the same, legal representatives of the plaintiff No.1(a) has preferred RSA No.2482 of 2017 and the legal
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR representatives of defendant No.1(a) have preferred RSA No.2173 of 2017.
20. RSA No.1884 of 2023, is filed by the legal representatives of the plaintiffs, challenging the judgment and decree in R.A.No.5 of 2020 arising out of the judgment and decree in O.S.No. 271 of 1991.
21. The facts in nutshell in O.S.No.271 of 1991 are that, the father of the original plaintiff-Kunnegowda, defendant No.1 and defendant No.4 are the children of Marthandegowda @ Sirigowda. It is further stated in the plaint that, the family of the deceased Marthandegowda @ Sirigowda had two properties, namely, land bearing Sy.No.63, measuring 03 acres 34 guntas and land bearing Sy.No.64, measuring 07 acres 9 guntas of Halaguru village, Malavalli Taluk. It is stated that, the suit schedule property was allotted to Kunnegowda (father of original plaintiff) as per the partition effected amongst the father of original plaintiff- Kunnegowda, defendant Nos.1 and 4.
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR It is stated that no property in land bearing Sy.No.63 was allotted to the said Kunnegowda (father of original plaintiff) and as such more extent of land was allotted in Sy.No.64, during the time of partition and the plaintiffs were in possession of the suit schedule property. Hence, the plaintiffs have filed suit in O.S.No.271 of 1991 seeking relief of declaration of title with consequential relief of permanent injunction in respect of the suit property as the defendants are interfering with the suit schedule property.
22. After service of notice, defendant Nos.1 to 4 entered appearance and filed detailed written statement denying the averments made in the plaint. Defendant No.4 has filed separate written statement and stated that, defendant No.4, has no right in respect of the suit schedule property.
23. Based on pleadings on record, the Trial Court has formulated the issues for its consideration.
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR
24. In order to establish their case, plaintiffs have examined 4 witnesses as PW1 to PW4 and got marked 29 documents as Exhibits P1 to P29. The defendants have examined 01 witness as DW1 and got marked 44 documents as Exhibits D1 to D44.
25. The Trial Court, after considering the material on record, by its judgment and decree dated 21.12.2019, decreed the suit of the plaintiffs and being aggrieved by the same, the legal representatives of defendant No.1 have preferred R.A.No.5 of 2020 before the First Appellate Court. The said appeal was resisted by the respondents therein. The First Appellate Court after re-appreciating the material on record by its judgment and decree dated 27.07.2023, allowed the appeal, consequently, set aside the judgment and decree in O.S.No.271 of 1991. Feeling aggrieved by the same, the legal representatives of the plaintiffs have preferred RSA No.1884 of 2023.
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR
26. This court vide order dated 10.07.2024 and 02.09.2025 has formulated the following substantial question of law.
In RSA No.287 of 20181) Whether both the Courts committed an error in dismissing the suit for the relief of permanent injunction though not entitled for the relief of declaration ?IN R.S.A. No.2173/2017
AND IN R.S.A No.2482/2017
1) Whether the finding recorded by the First Appellate Court with regard to issue Nos.1 and 3 in Original Suit No.59 of 2007 requires interference in these appeals?
2) Whether the finding recorded by the First Appellate Court directing the legal representatives of the defendant No.1 to execute the redemption of mortgage in respect of the property as per the Exhibit-P7 requires interference in the absence of the finding with regard to limitation in seeking relief of redemption of mortgage?
3) Whether the finding recorded by the First Appellate Court requires re-consideration as the contesting defendants have not questioned the finding recorded by the Trial Court on issue No.2 ?
In RSA No. 1884 of 2023- 31 -
NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR
1) Whether the finding recorded by the First Appellate Court on the additional issue in Original Suit No.271 of 1991 requires reconsideration in the present appeal?
2) Whether the First Appellate Court is justified in ignoring the endorsement made on the Mortgage Deed (Exhibit P15), which requires compulsory registration?
27. I have heard Sri. G. Papi Reddy, learned Senior Counsel appearing on behalf of Sri. B.J. Mahesh, for the appellants in RSA No.2482 of 2017 and RSA No. 1884 of 2023 and respondents 1 and 3 respectively in RSA No.287 of 2018 and RSA No.2173 of 2017. Sri. Raja L., and Sri. M.B. Chandrachuda, learned counsel for the appellants in RSA No.287 of 2018 and RSA No.2173 of 2017 and for respondents in RSA No.2482 of 2017 and RSA No.1884 of 2023. Sri. Nitin Ramesh, learned counsel appearing for respondent No.4 and 5 in RSA No.287 of 2018.
ARGUMENTS OF THE APPELLANTS- MORTGAGOR
28. Sri. G. Papi Reddy learned Senior Counsel appearing for the appellants, in RSA No.1884 of 2023 and
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR RSA No. 2482 of 2017 argued by referring to the genealogy of the parties, that, the original propostius Marthandegowda @ Sirigowda, had three children Kunnegowda, (father of the original plaintiff in OS No.271 of 1991), S. Narasimhaiah-defendant No.1 and defendant No.4-S. Ramakrishnappa. It is further argued that, the said Kunnegowda, being eldest son in the family, was cultivating the entire land since, his younger brother-S. Narasimhaiah, was employed in Southern Railways as Station Master and another brother- defendant No.4 (S. Ramakrishnappa), was doing Arrack business at Mandya.
He argued that, both the defendant No.1 and defendant No.4, were not interested in agriculture and as such, the father of the original plaintiff-Kunnegowda was cultivating the suit schedule property. It is further argued that, partition had taken place, in the Joint family of Marthandegowda @ Sirigowda, and little more share was allotted in favour of Kunnegowda, than defendant No.1 and defendant No.4. He further argued that the joint
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR family had two items of the suit schedule property namely, land bearing Sy No.63 measuring 03 acres, 34 guntas and land bearing Sy No.64 consisting of 07 acres, 9 guntas of Halaguru village. In the partition, held between the Kunnegowda and his brothers, the said Kunnegowda got, 02 acres, 33 guntas in land bearing Sy No.64. The said additional share of 02 acres, 33 guntas, in land bearing Sy No.64 was in addition to the land divided between the said Kunnegowda and his brothers in Sy No.63. In land bearing Sy No.63, the said Kunnegowda got 96 gutnas, and therefore, it is contended by the learned Senior Counsel that the said Kunnegowda got larger portion of the suit schedule property than his brothers S. Narasimhaiah (defendant No.1) and S. Ramakrishnappa (defendant No.4). It is also argued by the learned Senior Counsel for the appellants by referring to the Mortgage Deed dated 24.09.1951 and another Mortgage Deed dated 07.06.1952 that, as per the Mortgage Deed dated 24.09.1951, an extent of 01 acre, was mortgaged in favour of one
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR Madegowda. Thereafter, as per Mortgage Deed dated 07.06.1952, land to an extent of 01 acre 33 guntas, was mortgaged in favour of his brother-defendant No.1 (S.Narasimhaiah). It is also contended by learned Senior Counsel appearing for the appellants by referring to the shara mentioned in the unregistered document dated 21.04.1958 and 30.12.1973 that, the said land mortgaged under the aforementioned Mortgage Deeds dated 24.09.1951 and 07.06.1952 was redeemed and the said Kunnegowda was in cultivation of the suit schedule property and therefore, the children of S.Narasimhaiah and S.Ramarkishappa have no right, title or interest in respect of the suit schedule property and accordingly, sought for interference of this court.
29. Nextly, it is argued by the learned Senior Counsel by referring to the written statement filed by the defendants in OS No.271 of 1991 that, there is no specific denial of the redemption of mortgage by the defendants as required under Order VIII Rule 3 and 5 of Code of Civil
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR Procedure, and further as there is no specific denial in the written statement and as such, the claim made by the plaintiffs with regard to possession of the suit schedule property by the legal representatives of Kunnegowda, is to be confirmed. Emphasising on the evidence of the PW2 and PW3, neighbour land owners of the suit schedule property, it is argued by the learned Senior Counsel that, the neighbors of the suit schedule property have deposed about the possession of the suit schedule property by Kunnegowda, based on the redemption of mortgage by Kunnegowda and accordingly, sought for interference in these appeals filed by the legal representatives of Kunnegowda.
30. Further, it is contended by learned Senior Counsel by referring to paragraphs 30 and 32 of the judgment of the Trial Court that in a usufructuary mortgage wherein, the mortgagor is in possession of the suit schedule property, in view of redemption of mortgage, the legal representatives of Kunnegowda held to be
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR absolute owners of the suit schedule property. It is also argued by the learned Senior Counsel by referring to boundary mentioned in the plaint schedule in respect of the Sy No.64/C of Halaguru village, as well as the measurement of the suit schedule property in Exhibits P13 and P14 (Village map and Rough Sketch), it is argued by the learned Senior Counsel that, the redemption of the mortgage was admitted by the parties and the said aspect of the matter was considered by the Trial Court, however, First Appellate Court has committed an error in erroneously re-appreciating the material on record and accordingly, sought for interference of this court.
31. It is the categorical submission of the learned Senior Counsel that, there is no limitation for redemption of mortgage in a usufructuary of mortgage, and therefore, sought for interference of this court. It argued by the learned Senior Counsel that the issue Nos.1 to 3 in O.S.No.59 of 2007 was held against the defendants in O.S.No. 59 of 2007 and same has reached finality and
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR same has been unchallenged by the respondents herein and therefore, sought for setting aside the judgment in R.A.No.05 of 2020. Emphasising on these aspects, it is argued that mere receipt of money by the Mortgagee from the Mortgagor is sufficient and same does not require the registration of redemption of mortgage. In addition to this, the learned Senior Counsel appearing for the appellants argued that, the Mortgagee-S.Narasimhaiah, himself has handed over the original Mortgage Deeds in favour of Kunnegowda, that itself would establish, the fact of redemption of mortgage has been made by Kunnegowda, in favour of the his brother-S.Narasimhaiah and therefore, sough for allowing RSA No.2482 of 2017 and RAS No. 1884 of 2023.
32. In order to buttress his arguments, learned Senior Counsel appellants has places reliance on the order of the Hon'ble Supreme Court in the case of Harminder Singh (D) Thr. LRs. vs. Surjit Kaur (D) Thr. LRs. and others in Civil Appeal No.89 of 2012 dated 27.04.2022
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR and in the case of Major Singh and Others vs. Jaswinder Singh and Others in Civil Appeal No.7844- 7845 of 2012 dated 17.11.2021 and argued that, in respect of the proposition with regard to the admission made by the defendants in respect of the possession of the suit schedule property by father of original plaintiff-
Kunnegowda, which has been proved in the earlier proceedings and in this regard, learned Senior Counsel places reliance on the judgment of the Hon'ble Supreme Court in the case Barkat Ali and Another vs. Badrinarain (D) by Lrs., reported in (2008) 4 SCC 615 and argued that the principles of res-judicata is not only applicable in respect of different proceedings but also applied at the subsequent stage of the same proceedings and accordingly, sought for interference of this Court.
33. Nextly, it is contended by the learned Senior Counsel appearing for the appellants that, the period of limitation is not applicable for redemption of mortgage and in this regard, learned Senior Counsel places reliance on
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR the judgment of the Hon'ble Supreme Court in the case of Harminder Singh (supra) and argued that, the finding recorded by the First Appellate Court by allowing the appeal in RA No. 5 of 2020 requires re-consideration in these appeals. On the similar proposition of law, learned Senior Counsel places the reliance on the judgment of the Hon'ble Supreme Court in the case of Prabhakaran and Others vs. M.Azhagiri Pillai (D) by LRs and Others reported in AIR 2006 SC 1567 and in the case of Mohan Lal vs. Mohan Lal reported in AIR Online 2016 SC 206 and accordingly, sought for interference of this Court.
ARGUMETNS OF THE RESPONDENT- MORTGAGEE:
34. Per Contra, Sri. Raja. L., appearing for the respondents argued that, as per the Mortgage Deed (Exhibit P9), a period of three years was stipulated for the redemption of the mortgage and after the completion of three years, the cause of action arises for seeking redemption of mortgage, by the Mortgagor is for a period of 30 years and therefore, as the suit is filed after 33
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR years of the execution of the Mortgage Deed at Ex.P9, i.e. after the lapse of 30 years as per Article 61 of the Limitation Act, 1908 and therefore, the suit filed by the legal representatives of the Mortgagor, is not maintainable and accordingly, sought for dismissal of the appeals. It is also argued by the learned counsel appearing for the respondents that, insofar period for redemption of mortgage is not mentioned in the document, then the limitation period would be 30 years from the date of execution of the Mortgage Deed. In this regard, supporting the judgment of the First Appellate Court, in R.A.No. 5 of 2020, learned counsel appearing for the respondents places reliance on the judgment of the Hon'ble Supreme Court in the case of Singh Ram (D) thru LRs vs. Sheo Ram and Others reported in AIR 2014 SC 3447 referring to paragraph 5, 14 and 15 it is argued that, right to redeem has been held to accrue on the date of mortgage and the said right will be exhaust after 30 years, and therefore, sought for dismissal of the appeals filed by
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR the legal representatives of the Mortgagor. It is also argued by the learned counsel appearing for the respondents by placing on the judgment of Hon'ble Supreme Court in the case of Prabhakaran (supra) and argued that, the period of limitation is applicable to the usufructuary mortgage also if the period is fixed in the Deed of Mortgage as there is transfer of interest in an immovable property for securing the amount advanced therein and therefore, sought for interference of this Court.
35. In respect of the contention raised by the learned Senior Counsel appearing for the appellants that, the legal representatives of the original mortgagee-S. Narasimhaiah have not questioned the judgment and decree passed by the Trial Court despite being aggrieved by the finding recorded on Issue Nos.1 to 3, Sri. M. B. Chandrachooda, learned counsel appearing for the respondents argued that, since the suit filed by the legal representatives of the Mortgagor was dismissed and
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR therefore, there was no occasion for the defendants to challenge the judgment of the trial court and decree passed by the Trial Court and in this regard, Sri. M. B. Chandrachooda, learned counsel for the respondents refers to the judgment of the Hon'ble Supreme Court in the case of Banarasi and others vs. Ram Phal reported in (2003) 9 SCC 606 and in the case of Hardevinder Singh vs. Paramjit Singh and Others reported in (2013) 9 SCC 261 and argued that, the defendants in the said suit were not the aggrieved parties, and accordingly, sought for dismissal of the appeals preferred by the legal representatives of the original Mortgagor.
ANALYSIS OF THE CONTENTIONS :
36. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below and perused the original records.
37. RSA No.287 of 2018 is arising out of dismissal of the R.A.No.34 of 2016 by confirming the judgment and
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR decree in O.S.No.19 of 2007. O.S.No.19 of 2007 is filed by H.N. Ramanna, S/o late S. Narasimhaiah (Mortgagee), seeking relief of declaration in respect of the suit schedule property which came to be dismissed and same was confirmed by the First Appellate Court in R.A.No.34 of 2016.
38. RSA No.2173 of 2017 is filed by the legal representatives of S. Narasimaiah (Mortgagee) and RSA No.2482 of 2017 is filed by the legal representatives of Kunnegowda (Mortgagor) in O.S.No.59 of 2007. These two appeals are arising out of the judgment and decree in O.S.No.59 of 2007 filed by legal representatives of Kunnegowda (Mortgagor), which came to be dismissed by the Trial Court and partly allowed by the First Appellate Court in R.A.No.36 of 2012.
39. RSA No.1884 of 2023 is filed by legal representatives of Kunnegowda (Mortgagor), challenging the judgment and decree passed in R.A.No.5 of 2020,
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR whereby, the First Appellate Court allowed the appeal preferred by the legal representatives of S. Narasimaiah (Mortgagee) by setting aside the judgment and decree passed in O.S.No.271 of 1991. O.S.No.271 of 1991 was filed by legal representatives of Kunnegowda (Mortgagor), seeking declaration of title with consequential relief of permanent injunction.
40. The undisputed facts of the case are that the original propositus-Marthandegowda @ Sirigowda had three children namely, Kunnegowda (Mortgagor), S. Narasimhaiah (Mortgagee) and S. Ramakrishnappa. The parties in these appeals are descendants of Kunnegowda and S. Narasimhaiah. Kunnegowda, being eldest son in the family was managing the family affairs as his younger brother- S. Narasimhaiah was working in Southern Railways as Station Master. It is also not disputed that, another brother of Kunnegowda viz. S. Ramakrishnappa had business at Mandya. Kunnegowda was looking after the agricultural operations.
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR
41. It is the contention of the Kunnegowda (Mortgagor) that, as per the partition in their family, 02 acre 33 guntas in Sy No.64 of Halaguru Village was allotted in favour of Kunnegowda. Kunnagowda had mortgaged 01 acre of land in Sy. No.64 in favour of Madegowda as per Mortgage Deed dated 24.09.1951 (Exhibit P10) for sum of Rs.200/-. It is also to be noted that as per the Mortgage Deed dated 07.06.1952 (Exhibit P9). Kunnegowda had mortgaged the land covered under the Mortgage Deed dated 24.09.1951 in favour of his brother S. Narasimhaiah for Rs.400/-. In terms of the said Mortgage Deed dated 07.06.1952, S. Narasimhaiah (Mortgagee) had to discharge the mortgage amount of Rs.200/- due under the earlier mortgage made in favour of Madegowda for sum of Rs.200/-. It is also forthcoming from the finding of the Courts below that, a shara has been made on the original Mortgage Deed reflecting the date as 30.12.1973 (Exhibit P15), wherein, the Mortgagor-
Kunnegowda had repaid the entire mortgage amount to
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR the Mortgagee - S. Narasimhaiah redeeming the two original mortgage deeds referred to above. It is not in dispute that the original Mortgage Deeds were in the custody of the legal representatives of Kunnegowda.
Kunnegowda died during the year 1981 and his legal representatives succeed to the estate. In view of the interference made by the legal representatives of S. Narasimhaiah (Mortgagee), the plaintiffs (legal representatives of Kunnegowda) in O.S.No.271 of 1991 sought for relief of declaration with consequential relief of permanent injunction against the defendants. O.S.No.59 of 2007 was filed seeking redemption of mortgage by the legal representatives of Kunnegowda (Mortgagor).
O.S.No.19 of 2007 is filed by the son of S. Narasimhaiah (Mortgagee), seeking relief of declaration in respect of the suit schedule property. In the backdrop of the arguments advanced by the learned counsel appearing for the parties, the question to be answered in these appeals as to whether the relief of redemption of mortgage and
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR declaration sought for by the legal representatives of Kunnegowda (Mortgagor) is barred by limitation or not. In this regard, arguments were heard at length.
42. The Senior Counsel representing the legal representatives of Kunnegowda (Mortgagor) made a principal submission that the limitation is not applicable in respect of usufructuary mortgage and it is for the Mortgagor to redeem the suit schedule property only after repayment of the amount received from the original Mortgagor. On the other hand, learned counsel appearing for the legal representatives of S. Narasimhaiah (Mortgagee) contended that the time fixed in the Mortgage Deed as three years for redemption of mortgage and as the Mortgagor has not resorted for redemption of mortgage and therefore, the period of limitation as per Section 62 of Transfer of Property Act, 1882 i.e., the Mortgagor or his legal representatives have to redeem the mortgage within thirty years from the time specified in the Mortgage Deed. It is further case of the legal
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR representatives of S. Narasimhaiah that, since the period is lapsed, the suit filed by the legal representatives of Kunnegowda, itself is not maintainable.
43. It is also forthcoming from the records that the judgment and decree in O.S.No.271 of 1991 confirmed in R.A.No.69 of 2006 was challenged before this Court in RSA No.1063 of 2010 filed by legal representatives of S. Narasimhaiah and this Court, by judgment and decree dated 12.11.2014, remitted the matter to the First Appellate Court to re-consider the issue afresh.
44. In order to answer the aforementioned legal question pertaining to the applicability of limitation to the suit filed by the Mortgagor, it is relevant to follow the dictum of Hon'ble Supreme Court as under:
44.1. In the case of Singh Ram (supra) at paragraph 15 reads as under:
"15. We, thus, hold that special right of usufructuary mortgagor under Section 62 of the TP Act to recover
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR 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 the mortgagor. Until then, limitation does not start for the 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."
44.2. In the case of Shakeena and Another vs. Bank of India and Others reported in (2021) 12 SCC 761, paragraph 16.4 reads as under:
"16.4. While considering the second point, after noticing Section 37 of the 2002 Act and Section 60 of the Transfer of Property Act, the Court rejected the argument of the appellants for the following reasons : (K. Chidambara Manickam case [K. Chidambara Manickam v. Shakeena, 2007 SCC OnLine Mad 675 : (2008) 1 CTC 660] , SCC OnLine Mad para 11) "11.4. We have more than one reasons to reject the said contention of the learned counsel for the borrowers.
*** 11.5.1. Firstly, as held by us, while answering Point (i) the sale in this case has become absolute and complete on the date when the sale was confirmed on the appellant/auction-
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR purchaser and he is vested with all the rights in relation to the property purchased by him in the public auction on issuance of sale certificate on 6-1-2006 i.e. prior to the date on which the borrowers have approached the second respondent for repayment, contrary to the provisions of Section 13(8) of the SARFAESI Act.
11.5.2. Secondly, the sale certificate issued in this case does not require any registration as per Section 17(2)(xii) of the Registration Act, 1908 and our said view is fortified with the decisions of the Division Bench of this Court in S. Arumugham v. C.K. Venugopal Chettiar [S. Arumugham v. C.K. Venugopal Chettiar, 1986 SCC OnLine Mad 189 :
(1994) 1 LW 491] and the Supreme Court in B. Arvind Kumar v. Union of India [B. Arvind Kumar v. Union of India, (2007) 5 SCC 745] , referred supra.
*** 11.5.3.1. Thirdly, it is true that the borrowers have the right of redemption as provided under Section 60 of the Transfer of Property Act, 1882, in view of Section 37 of the SARFAESI Act and to substantiate the said stand, the learned counsel for the borrowers relies on the decision of the Supreme Court in Narandas Karsondas v. S.A. Kamtam [Narandas Karsondas v. S.A. Kamtam, (1977) 3 SCC 247] , wherein it is held that the mortgagor has a right to redemption unless the sale of the property was complete by registration in accordance with the provisions of the Registration Act.
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR 11.5.3.2. With great respect, we are of the view that the decision of the Supreme Court in Narandas Karsondas v. S.A. Kamtam [Narandas Karsondas v. S.A. Kamtam, (1977) 3 SCC 247] , referred supra, is not applicable to the facts of this case. Even, as held by the Supreme Court in Narandas Karsondas v. S.A. Kamtam [Narandas Karsondas v. S.A. Kamtam, (1977) 3 SCC 247] , referred supra, the right of the mortgagor to redemption continues only till such time the sale of the property was complete by registration. In this case, our finding, following the decision of the Division Bench of this Court in S. Arumugham v. C.K. Venugopal Chettiar [S. Arumugham v. C.K. Venugopal Chettiar, 1986 SCC OnLine Mad 189 : (1994) 1 LW 491] and the Supreme Court in B. Arvind Kumar v. Union of India [B. Arvind Kumar v. Union of India, (2007) 5 SCC 745] , referred supra, is that the sale in this case has become absolute and complete by the issuance of sale certificate on 6-1-2006. Further, Section 17(2)(xii) of the Registration Act, 1908 does not require registration of a sale certificate granted to any purchaser of any property sold in public auction by a Civil or Revenue Officer and it is the finding of the Supreme Court in B. Arvind Kumar v. Union of India [B. Arvind Kumar v. Union of India, (2007) 5 SCC 745] , referred supra, that the sale certificate issued by a Civil or Revenue Officer in respect of a property sold in public auction does not fall under the category of non-testamentary documents which require registration under sub-sections (b) and (c) of Section 17(1) of the Registration Act, 1908.
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR 11.5.4. Fourthly, the right to redeem the mortgage, as provided in Section 60 of the Transfer of Property Act, is, of course, a very valuable right possessed by the mortgagor. At the same time, such a right to redeem the mortgage can be exercised before it is foreclosed, or the estate is sold. It has been held that the mortgagor can adopt the course provided under Section 60 of the Transfer of Property Act only before the mortgagee has filed a suit for enforcement of the mortgage and not thereafter, vide Poulose v. State Bank of Travancore [Poulose v. State Bank of Travancore, 1987 SCC OnLine Ker 48 : AIR 1989 Ker 79] . In this case, as discussed earlier, the borrowers approached the second respondent Bank only after initiation of the proceedings under Section 13(4) of the SARFAESI Act, and that too after the property was sold in public auction and the sale was confirmed in favour of the appellant."
44.3. In the case of L. K. Trust vs. EDC Limited and Others reported in (2011) 6 SCC 780, paragraph 53, 61 and 62 reads as under:
"53. On analysis of arguments advanced at the Bar, this Court finds that the proposition that in India it is only on execution of conveyance and the registration of transfer of the mortgagor's interest by registered instrument that the mortgagor's right of redemption stands extinguished is well settled. Further, it is not the case of the appellant that a registered sale deed had been executed between the appellant Trust and Respondent 1 pursuant to the resolution passed by
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR Respondent 1 and, therefore, in terms of Section 54 of the Transfer of Property Act, 1882 no title relating to the disputed property had passed to the appellant at all.
***
61. The mortgagor under Indian law is the owner who had parted with some rights of ownership and the right of redemption is the right which he exercises by virtue of his residuary ownership to resume what he has parted with. In India this right of redemption, however, is a statutory one. A right of redemption is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists. The judicial trend indicates that dismissal of an earlier suit for redemption whether as abated or as withdrawn or in default would not debar the mortgagor from filing a second suit for redemption so long as the mortgage subsists. This right cannot be extinguished except by the act of parties or by the decree of a court. As explained by this Court in Jayasingh Dnyanu Mhoprekar v. Krishna Babaji Patil [(1985) 4 SCC 162] : (SCC p. 167, para 6) "6. ... the right of redemption under a mortgage deed can come to an end only in a manner known to law. Such extinguishment of the right can take place by contract between the parties, by a merger or by a statutory provision which debars the mortgagor from redeeming the mortgage."
62. The mortgagor's right of redemption is exercised by the payment or tender to the mortgagee at the proper time and at
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR the proper place of the mortgage money. When it is extinguished by the act of parties, the act must take the shape and observe the formalities which the law prescribes. A mortgage being a security for the debt, the right of redemption continues although the mortgagor fails to pay the debt at the due date. Any provision inserted to prevent, evade or hamper the redemption is void."
44.4. In the case of Jayasingh Dnyanu Mhoprekar and Another vs. Krishna Babaji Patil and Another reported in (1985) 4 SCC 162, paragraph 6 reads as under:
"6. The only question which arises for decision in this case is whether by reason of the grant made in favour of the defendants the right to redeem the mortgage can be treated as having become extinguished. It is well settled that the right of redemption under a mortgage deed can come to an end only in a manner known to law. Such extinguishment of right can take place by a contract between the parties, by a merger or by a statutory provision which debars the mortgagor from redeeming the mortgage. A mortgagee who has entered into possession of the mortgaged property under a mortgage will have to give up possession of the property when the suit for redemption is filed unless he is able to show that the right of redemption has come to an end or that the suit is liable to be dismissed on some other valid ground. This flows from the legal principle which is applicable to all mortgages, namely
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR "Once a mortgage, always a mortgage". It is no doubt true that the father of the first defendant and the second defendant have been granted occupancy right by the Prant Officer by his order dated February 5, 1964 along with Pandu, the uncle of Defendant 1. But it is not disputed that the defendants would not have been able to secure the said grant in their favour but for the fact that they were in actual possession of the lands. They were able to be in possession of the one-half share of the plaintiffs in the lands in question only by reason of the mortgage deed. If the mortgagors had been in possession of the lands on the relevant date, the lands would have automatically been granted in their favour, since the rights of the tenants in the watan lands were allowed to subsist even after the coming into force of the Act and the consequent abolition of the watans by virtue of Section 8 of the Act. The question is whether the position would be different because they had mortgaged land with possession on the relevant date."
44.5. In the case of Achaldas Durgaji Oswal (D) through LRs vs. Ramvilas Gagngabisan Heda (D) through LRs reported in (2003) 3 SCC 614, paragraphs 8 to 23, 26 to 40 reads as under:
"Findings
8. Usufructuary mortgage is defined in Section 58(d) of the Transfer of Property Act in the following terms:
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR "58. (d) Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises 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 an usufructuary mortgage and the mortgagee an usufructuary mortgagee."
9. Mortgagor, despite having mortgaged the property might still deal with it in any way consistent with the rights of the mortgagee. He has an equitable right to redeem the property after the day fixed for payment has gone by but his right or equity of redemption is no longer strictly an equitable estate or interest although it is still in the nature of an equitable interest. (See Halsbury's Laws of England, 4th Edn., Vol. 32, p. 264.)
10. The right of the mortgagor, it is now well settled, to deal with the mortgaged property as well as the limitation to which it is subject depends upon the nature of this ownership which is not absolute, but qualified by reason of the right of the mortgagee to recover his money out of the proceedings. The right to redeem the mortgage is a very valuable right possessed by the mortgagor. Such a right to redeem the mortgage can be exercised before it is foreclosed or the estate is sold. The equitable right of redemption is dependent on the mortgagor giving the mortgagee reasonable notice of his
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR intention to redeem and on his fully performing his obligations under the mortgage.
11. The doctrine of redemption of mortgaged property was not recognised by the Indian courts as the essence of the doctrine of equity of redemption was unknown to the ancient law of India. The Privy Council in Thumbasawmy Mudelly v. Mohd. Hossain Rowthen [(1874-75) 2 IA 241 : ILR (1875) 1 Mad 1] called upon the legislature to make a suitable amendment which was given a statutory recognition by reason of Section 60 of the Transfer of Property Act which reads thus:
"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 retransfer 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 acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR Provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a court.
The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption.
Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money."
12. A right of redemption, thus, was statutorily recognized as a right of a mortgagor as an incident of mortgage which subsists so long as the mortgage itself subsists. The proviso appended to Section 60, as noticed hereinbefore, however, confines the said right so long as the same is not extinguished by an act of the parties or by a decree of court.
13. In the law of Mortgage by Dr Rashbehary Ghose at pp. 231-32 under the heading "Once a mortgage, always a mortgage", it is noticed:
"In 1681 Lord Nottingham in the leading case of Howard v. Harris [(1681) 1 Vern 33 : 23 ER 288] firmly laid down the principle: 'Once a mortgage, always a mortgage'. This is a doctrine to protect the mortgagor's right of redemption: it renders all agreements in a mortgage for forfeiture of the right to redeem and also encumbrances of or dealings with
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR the property by the mortgagee as against a mortgagor coming to redeem. In 1902 the well-known maxim, 'once a mortgage, always a mortgage', was supplemented by the words 'and nothing but a mortgage' added by Lord Davey in the leading case of Noakes v. Rice [1902 AC 24 : 71 LJ Ch 139 : 86 LT 62 : (1900-03) All ER Rep 34 (HL)] in which the maxim was explained to mean 'that a mortgage cannot be made irredeemable and a provision to that effect is void'. The maxim has been supplemented in the Indian context by the words 'and therefore always redeemable', added by Justice Sarkar of the Supreme Court in the case of Seth Ganga Dhar v. Shankar Lal [AIR 1958 SC 770 :
1959 SCR 509] .
It is thus evident that the very conception of mortgage involves three principles. First, there is the maxim: 'once a mortgage, always a mortgage'. That is to say, a mortgage is always redeemable and if a contrary provision is made, it is invalid. And this is an exception to the aphorism, modus et conventio vincunt legem (custom and agreement overrule law). Secondly, the mortgagee cannot reserve to himself any collateral advantage outside the mortgage agreement. Thirdly, as a corollary from the first another principle may be deduced, namely, 'once a mortgage, always a mortgage, and nothing but a mortgage'. In other words, any stipulation which prevents a mortgagor from getting back the property mortgaged is void. That is, a mortgage is always redeemable.
The maxim 'once a mortgage always a mortgage' may be said to be a logical corollary from the doctrine, which is the
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR very foundation of the law of mortgages, that time is not of the essence of the contract in such transactions; for the protection which the law throws around the mortgagor might be rendered wholly illusory, if the right to redeem could be limited by contract between the parties. Right to redeem is an incident of a subsisting mortgage and is inseparable from it so that the right is coextensive with the mortgage itself. The right subsists until it is appropriately and effectively extinguished either by the acts of the parties concerned or by a proper decree of the competent court."
14. In The Law of Mortgages by Edward F. Cousins at p. 294, in relation to protection of the right to redeem, it is stated:
"But the protection of embarrassed mortgagors could not be achieved by the mere creation of the equitable right of redemption. As soon as the practice in equity to allow redemption after the contract date became known, mortgagees sought to defeat the intervention of equity by special provisions in the mortgage-deed. These provisions were designed either to render the legal right to redeem illusory, and thus prevent the equity of redemption from arising at all, or to defeat or clog the equity of redemption after it had arisen. For example, the mortgage contract might provide for an option for the mortgagee to purchase the mortgaged property, thus defeating both the legal and equitable right to redeem, or might allow redemption after the contract date only upon payment of an additional sum or upon performance of some additional obligation. Consequently, the Chancellor began to relieve mortgagors against such restrictions and fetters on the legal and
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR equitable rights to redeem imposed by special covenants in the mortgage.
The protection of a mortgagor against all attempts to defeat or clog his right of redemption involved the creation of subsidiary rules of equity, invalidating the various contrivances which ingenious conveyancers devised. These rules are sometimes summed up in a maxim of equity 'once a mortgage always a mortgage'. This means that once a contract is seen to be a mortgage no provision in the contract will be valid if it is inconsistent with the right of the mortgagor to recover his security on discharging his obligations. Provisions offending against the maxim may either touch the contractual terms of redemption, rendering the right to redeem illusory, or they may touch only the equitable right to redeem after the passing of the contract date, hampering the exercise of the right. Provisions of the latter kind are termed 'clogs' on the equity of redemption. Greene, M.R. in Knightsbridge Estates v. Byrne [(1938) 4 All ER 618 (CA)] emphasized that provisions touching the contractual right to redeem are not properly to be classed as clogs on the equity of redemption. But it is evident that such provisions are in substance clogs on the equity of redemption, since they tend to defeat it altogether."
15. In Fisher and Lightwood's Law of Mortgage, the nature of the right of redemption is stated thus:
"The rights of redemption.-- The right to redeem a mortgage was formerly conferred on the mortgagor by a proviso or condition in the mortgage to the effect that, if
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR the mortgagor or his representative should pay to the mortgagee the principal sum, with interest at the rate fixed, on a certain day, the mortgagee, or the person in whom the estate was vested, would, at the cost of the person redeeming, reconvey to him or as he should direct (a). This is still the practice in the case of a mortgage effected by an assignment of the mortgagor's interest (b). A proviso for reconveyance was no longer appropriate after 1925 for a legal mortgage of land [which has to be made by demise
(c)], and it is not necessary to have a proviso for surrender of the term in such a mortgage, since the term ceases on repayment (d). Nevertheless, in order to define the rights of the mortgagor and the mortgagee, a proviso is inserted expressly stating that the term will cease at the date fixed
(e).
It has been seen (f) that, at law, whatever form the mortgage took, upon non-payment by the appointed time, the estate of the mortgagee became absolute and irredeemable, but that equity intervened to enable the mortgagor to redeem after the date of repayment.
There are, therefore, two distinct rights of redemption -- the legal or contractual right to redeem on the appointed day and the equitable right to redeem thereafter (g). The equitable right to redeem, which only arises after the contractual date of redemption has passed, must be distinguished from the equity of redemption, which arises when the mortgage is made (g)."
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR
16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided.
17. Order 34 CPC deals with suits relating to mortgages of immovable property. Rule 7 thereof deals with preliminary decree in redemption suit. Sub-clause (i) of clause (c) of Rule 7(1) of Order 34 empowers the court to direct as under:
"7. (1)(c)(i) that, if the plaintiff pays into court the amount so found or declared due on or before such date as the court may fix within six months from the date on which the court confirms and countersigns the account taken under clause (a), or from the date on which such amount is declared in court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in Rule 10, together with subsequent interest on such sums respectively as provided in Rule 11, the defendant shall deliver up to the plaintiff, or to such person as the plaintiff appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, retransfer the property to the plaintiff at his cost free from the mortgage and from all incumbrances created
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR by the defendant or any person claiming under him, or, where the defendant claims by derived title, by those under whom he claims, and shall also, if necessary, put the plaintiff in possession of the property; and"
18. The consequence for non-payment has been contained in sub-clause (ii) of clause (c) which is in the following terms:
"7. (1)(c)(ii) that, if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the plaintiff fails to pay, within such time as the court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interests, the defendant shall be entitled to apply for a final decree--
(a) in the case of a mortgage other than a usufructuary mortgage, a mortgage by conditional sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, that the mortgaged property be sold, or
(b) in the case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid, that the plaintiff be debarred from all right to redeem the property."
19. A bare perusal of the aforementioned provisions would clearly show that sub-clause (ii) has no application in relation to usufructuary mortgage. Sub-rule (2) of Rule 7 of Order 34 empowers the court to extend the time fixed for payment. Rule 8 of Order 34 provides for final decree in redemption suit. The right of the mortgagor to file an application for passing a
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR final decree has been provided in the manner laid down therein.
20. The statutory provisions, as noticed hereinbefore, are required to be construed having regard to the redeeming features of usufructuary mortgage, namely, (a) there is a delivery of possession to the mortgagee, (b) he is to retain possession until repayment of money and to receive rents and profits or part thereof in lieu of interest, or in payment of mortgage-money, or partly in lieu of interest and partly in payment of mortgage-money, (c) there is redemption when the amount due is personally paid or is discharged by rents or profits received, and (d) there is no remedy by sale or foreclosure.
21. Order 34 Rules 7 and 8 do not confer any right upon the usufructuary mortgagee to apply for final decree which is conferred on the mortgagee on other types of mortgages. By reason of sub-rule (1) of Rule 8 of Order 34, a mortgagor is entitled to make an application for final decree at any time before a final decree debarring the plaintiff from all rights to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under sub-rule (3) of this Rule. No such application is again contemplated at the instance of the usufructuary mortgagee. By reason of sub-rule (1) of Rule 8 of Order 34, a right of redemption is conferred upon the mortgagor of a usufructuary mortgage. Such a provision has been made evidently having regard to the right of redemption of a mortgagor in terms of Section 60 of the Transfer of Property Act and further, having regard to the fact that a usufructuary
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR mortgagee would be entitled to possess the property in question till a final decree of redemption is passed.
22. The right of redemption of a mortgagor being a statutory right, the same can be taken away only in terms of the proviso appended to Section 60 of the Act which is extinguished either by a decree or by act of parties. Admittedly, in the instant case, no decree has been passed extinguishing the right of the mortgagor nor has such right come to an end by act of the parties.
23. A right for obtaining a final decree for sale or foreclosure can be exercised only on payment of such money. Such a right can be exercised at any time even before the sale is confirmed although the final decree might have been passed in the meanwhile. The mortgagee is also not entitled to receive any payment under the preliminary decree nor is the mortgagor required to make an application to recover before paying the same.
***
26. As regards application of Article 137 of the Limitation Act, the different High Courts have laid down different laws. The Oudh High Court in Banke Behari Lal v. Ghani Ahmad [AIR 1922 Oudh 33 : 9 OLJ 14] held that Article 181 of the old Limitation Act will have no application. Similar view has been taken in Ramaiah v. Veeraiah [ILR (1983) 1 Kar 114] . However, some High Courts have taken a view that the period of limitation provided for under Article 137 starts from the date of deposit. (See Subramaniam Chettiar v. Muthiah Pillai
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR [AIR 1957 Mad 189 : (1957) 1 MLJ 147] , Bhagabat Sit v. Balaram Sit [AIR 1963 Ori 61 : 28 Cut LT 635] , Krishnaji Moreshwar Joshi v. Bhakatram Sadashiv Patil [(1998) 2 Kar LJ 290] , K. Kunjamma v. Bhageerathy Amma Gomathy Amma [AIR 1991 Ker 111] , Angammal v. V.K.M. Muhammad Sulaiman Lebbai [AIR 1946 Mad 38 : (1945) 2 MLJ 239] , Loknath Misir v. Daulta Kuer [AIR 1953 All 503 : 1953 All LJ 258] , Rudrappa v. Puttalakshamma [AIR 1954 Mys 118 : ILR 1953 Mys 652] and Mohd. Azim v. Mohd. Sultan [AIR 1946 Pat 99 : ILR 24 Pat 575] .)
27. A learned Single Judge of the Allahabad High Court in Yashpal Singh v. Ved Prakash [(1988) 2 Civil LJ 356 : 1988 All LJ 594] held (wrongly recorded by the High Court as a judgment of this Court): (All LJ pp. 596-97, para 13) "13. Similar observations have been made in Mohd. Azim v. Mohd. Sultan [AIR 1946 Pat 99 : ILR 24 Pat 575] and in Rudrappa v. Puttalakshamma [AIR 1954 Mys 118 : ILR 1953 Mys 652] , these two cases have also indicated that a preliminary decree in a suit for redemption of a usufructuary mortgage may under clause (c)(i) of Rule 7(1) of Order 34 of the Civil Procedure Code fix a time for payment of the amount declared due under the decree. But default in making the payment of the amount declared under the decree within the time fixed does not operate to debar the plaintiff mortgagor from all right to redeem the mortgaged property."
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28. In Mancheri Puthusseri Ahmed v. Kuthiravattam Estate Receiver [(1996) 6 SCC 185] it was observed: (SCC pp. 192- 93, para 5) "It is now well settled that despite the decree for redemption which might have been passed by a competent court and which might have become final till the mortgage amount is deposited by the mortgagor the relationship of mortgagor and mortgagee does not come to an end. Conversely once the amount is deposited by the mortgagor decree-holder even during the execution proceedings the relationship between the parties as mortgagor and mortgagee ceases and thereafter till actual delivery of possession the erstwhile mortgagee-in-possession remains merely as judgment-debtor in illegal possession."
29. In Mhadagonda Ramgonda Patil v. Shripal Balwant Rainade [(1988) 3 SCC 298 : (1988) 3 SCR 689 : AIR 1988 SC 1200] this Court negatived the plea raised therein that as a final decree was passed in the earlier redemption suit, there was a merger of the mortgage debt in the decretal debt and the second suit for redemption was barred would not be sustainable, in the following terms: (SCC pp. 303-04, para 13) "13. In the instant case, the earlier suit was not a suit for foreclosure nor was either of the mortgages, a mortgage by conditional sale or an anomalous mortgage and, accordingly, there was no declaration in the final decree passed in the earlier suit for redemption that the respondents would be debarred from all right to redeem the mortgaged property. Rule 5(1) of Order 34 expressly
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR recognized the right of the mortgagor to redeem the mortgage at any time before the confirmation of a sale made in pursuance of a final decree passed in a suit for sale. Similarly, Rule 8(1) of Order 34 permits the mortgagor to redeem the mortgaged property before the confirmation of the sale held in pursuance of a final decree in a redemption suit, unless such final decree debars the mortgagor from all right to redeem the mortgaged property which, as noticed earlier, is provided for in sub-rule (3)(a) of Rule 8 of Order 34 relating to a mortgage by conditional sale or an anomalous mortgage. Thus, the provisions of Order 34 have laid down in clear terms the circumstances when the right of redemption of the mortgagor would stand extinguished. It is also clear that in a suit for redemption, a mortgage other than a mortgage by conditional sale or an anomalous mortgage, the mortgagor has right of redemption even after the sale has taken place pursuant to the final decree, but before the confirmation of such sale. In view of these provisions, the question of merger of mortgage debt in the decretal debt does not at all arise. We are, therefore, of the view that the decision in Sheo Narain case [Sheo Narain Sah v. Deolochan Kuer, AIR 1948 Pat 208 : ILR 26 Pat 97] , insofar as it lays down the merger of the mortgage debt in the decretal debt and the consequent extinguishment of the right of redemption of the mortgagor after the passing of the final decree in a suit for redemption, is erroneous."
30. This Court in Mhadagonda Ramgonda Patil [(1988) 3 SCC 298 : (1988) 3 SCR 689 : AIR 1988 SC 1200] cited with
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR approval the decisions of the Privy Council in Raghunath Singh v. Hansraj Kunwar [AIR 1934 PC 205 : 61 IA 362] as well as that of the Federal Court in Thota China Subba Rao v. Mattapalli Raju [AIR 1950 FC 1 : (1950) 1 MLJ 752 : 1949 FCR 484] .
31. In Maganlal v. Jaiswal Industries [(1989) 4 SCC 344 :
(1989) 3 SCR 696 : AIR 1989 SC 2113] this Court following the dicta in Mhadagonda Ramgonda Patil [(1988) 3 SCC 298 :
(1988) 3 SCR 689 : AIR 1988 SC 1200] stated thus: (SCC p.
360, para 30) "It cannot be disputed that the provisions contained in Order 34 Rule 5 of the Code are attracted as is apparent from the plain language thereof during the proceedings in execution of a final decree for sale and are thus provisions contained in the Code with regard to and having a material bearing on the execution of a decree as aforesaid. As seen above, the provisions contained in Order 34 Rule 5 of the Code in substance permit the judgment-debtor to redeem the mortgage even at the stage contemplated by Order 34 Rule 5 unless the equity of redemption has got extinguished. Since the contingency whereunder an equity of redemption gets extinguished is contained in the proviso to Section 60 of the Transfer of Property Act and since as indicated above, in the instant case the equity of redemption has not extinguished we find no good ground to take the view that even though all the remaining provisions with regard to execution of a decree for sale of mortgaged property will apply to execution of an order under Section 32 of the Act, the provision contained in Order 34 Rule 5 of
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR the Code shall not apply. Nothing has been brought to our notice as to how and why it is not practicable to apply the said provision."
32. In Pomal Kanji Govindji v. Vrajlal Karsandas Purohit [(1989) 1 SCC 458 : 1988 Supp (3) SCR 826 : AIR 1989 SC 436] it is stated as under: (SCC p. 477, para 27) "27. It is a right of the mortgagor on redemption, by reason of the very nature of the mortgage, to get back the subject of the mortgage and to hold and enjoy as he was entitled to hold and enjoy it before the mortgage. If he is prevented from doing so or is prevented from redeeming the mortgage, such prevention is bad in law. If he is so prevented, the equity of redemption is affected by that whether aptly or not, and it has always been termed as a clog. Such a clog is inequitable. The law does not countenance it."
33. In Haquik Mian v. Rajendra Prasad [AIR 1997 Pat 59 :
(1996) 1 Pat LJR 132] it is stated thus: (AIR pp. 66-67, para
27) "In other words mortgage is essentially a conveyance of an interest in a property as a security for payment of debt. The security must be redeemable on payment of debt or mortgage-money; Section 60 of the TP Act confers a statutory right of redemption. It is an inviolable right of mortgagor, on redemption to get back the subject of mortgage. Any clog on the equity of redemption was inequitable, bad in law and void. The courts must ignore
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR any transaction or proceeding, as the proceeding for recovery of rent from mortgagor when it was the obligation of mortgagee to pay rent and order or decree obtained ex parte without any notice and consequential auction-sale etc."
34. In Vora Aminbai Ibrahim v. Vora Taherali Mohmedali [AIR 1998 Guj 31 : (1998) 1 Guj LR 760] it is stated thus: (AIR pp. 35-36, para 11) "11. So far as the second substantial question of law is concerned it would be useful to consider what is redemption and what is scope of a suit for that purpose. 'Redemption' presupposes existence of a 'mortgage'. 'Mortgage' as defined in the Transfer of Property Act, is the transfer of an interest in immovable property for the purpose of securing the payment of a loan. A mortgage is created by act of parties. In usufructuary mortgage, the transfer is made of the right of the possession and enjoyment of the usufruct. The rights of a usufructuary mortgagee form part of the bundle of rights which constitute ownership the remainder still remains with the mortgagor and can be transferred by him. On the execution of a mortgage two distinct rights are carved out, namely, (i) the mortgagee's right; and (ii) the mortgagor's right. The mortgagee's right is the right of security for the respondent of his loan. The mortgagor's right is as indicated in Section 60 of the Transfer of Property Act i.e. after the principal money has become due, the mortgagor has a right to pay the mortgage-money and on such payment he has a right to require the mortgagee, among others, to deliver possession. This right cannot be
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR extinguished except by the act of parties or by a decree of a court. This right is called the right to redeem and a suit to enforce it is called a suit for redemption. Thus, the scope of a suit for redemption is primarily to enforce the right to make payment of the mortgage-money. A claim to redeem a mortgage actually does not attach to the land, although the decree passed in that suit may ultimately affect possession which is also an interest in land. An owner has a bundle of interests in property. By executing a mortgage he transfers only some interest to the mortgagee and that also by way of security. That interest is confined to realisation of mortgage debt, which, in the event of non-payment, may be realized out of the said security. What remains with the mortgagor after execution of the mortgage, is the ownership of the property, minus the interest transferred, and the right to repay the mortgage-money and to get the burden of security discharged. That right has been created in the mortgagor and not in the property. Thus, when a mortgagor enforces his right to redeem, he does not enforce a right in land."
It was further observed: (AIR p. 36, para 11) "However, there is no manner of doubt that successive suits for redemption of mortgage can be filed till right of redemption is not extinguished. Having regard to provisions of Section 60 of the Transfer of Property Act and Order 23 Rules 1 and 2 of the Code of Civil Procedure, it will have to be held that dismissal of earlier suit for redemption whether as abated or as withdrawn or in default would not debar the mortgagor from filing a suit for redemption and that such
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR second suit for redemption to redeem the same mortgage can be brought so long as the mortgage subsists and the right of redemption is not extinguished by afflux of time or by a decree of court passed in the prescribed form. This is because the right of redemption is an incident of a subsisting mortgage and is inseparable from it so that the right is coextensive with the mortgage itself. It subsists so long as mortgage itself subsists until it is appropriately and effectively extinguished and the extinguishment of the right of redemption can only happen either by the act of the parties concerned, or by a proper decree of the competent court. The right of redemption can be extinguished as provided in Section 60 of the Transfer of Property Act and when it is alleged to have been extinguished by a decree the decree should run strictly in accordance with the form prescribed for the purpose."
35. In Pranil Kumar Sett v. Kishorilal Bysack [AIR 2003 Cal 1] (AIR at p. 4, para 14) it has been stated:
"Moreover the right of redemption of the mortgagor in a suit for foreclosure subsists till final decree debarring the defendant (mortgagor) from all rights to redeem the mortgage property has been passed...."
36. We are therefore, of the opinion that although by reason of preliminary decree in the suit for redemption of usufructuary mortgage, the court may fix the time for payment of the amount declared due but default in depositing such payment would not debar him from a right to redeem the mortgaged property.
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR
37. In the aforementioned backdrop the decisions of this Court relied upon by Mr Bobde are required to be considered.
38. In K. Parameswaran Pillai case [(1993) 4 SCC 431] whereupon Mr Bobde has placed strong reliance, a suit was filed by the successors-in-interest of the mortgagee of the usufructuary mortgage. Consequent to subrogation, the appellant became a mere puisne mortgagee and the respondent therein after the preliminary decree transposed herself to be a mortgagor. The direction of the Court in the preliminary decree was, inter alia, as under: (SCC p. 438, para 5) "5. (3) And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendants may apply to the court for a final decree for the sale of the mortgaged property: and on such application being made, the mortgaged property or a sufficient part thereof shall be directed to be sold; and for the purpose of such sale the defendant shall produce before the court or such officer as it appoints all documents in his possession if power relating to the mortgaged property."
(emphasis supplied)
39. In the aforementioned situation, a two-Judge Bench of this Court observed as under: (SCC p. 439, para 6) "6. In the case of usufructuary mortgage clause (a) of sub- rule (3) of Rule 8 expressly excludes the right to the mortgagee to apply for foreclosure or sale or redemption. Necessary consequence is that so long as the right subsists,
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR though there is delay in compliance of the condition imposed in the preliminary decree, the right of redemption to the mortgagor is not lost. It will be barred only on expiry of the period of limitation prescribed under the Limitation Act. The reasons are obvious. Order 34 Rule 8(3) does not give any right to the mortgagee but the right is given only to the mortgagor, to seek redemption of the usufructuary mortgage in a decree under Rule 8(3) of Order 34. The mortgagee, having been in possession and enjoyment of the hypotheca is not disabled by the preliminary decree. On the other hand the liability continues to subsist against the mortgagor. Therefore, it is up to the mortgagor to redeem the mortgage. Till then his liability under the mortgage continues to run on the estate. It is, therefore, clear that the limitation to file an application under Order 34 Rule 8(1) to pass a final decree for redemption, other than the preliminary decree for redemption of usufructuary mortgage, starts running and continues to run its course from the date of expiry of the period fixed in the preliminary decree, unless it is stayed or suspended or the time prescribed in the preliminary decree is extended by an order of the court. In its absence on expiry of the limitation of three years from the date fixed in the preliminary decree expired under Article 137 of the Schedule to Limitation Act, 1963 (Article 181 of Schedule I of old Act), the plaintiff is debarred to enforce the right to pass the final decree. But in the case of preliminary decree for redemption of usufructuary mortgage no limitation begins to run until deposit is made though there is a conditional preliminary
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR decree and default was committed by the mortgagor for compliance thereof."
(emphasis supplied)
40. This Court, thus, made a distinction on the applicability of limitation as regards initiation of a proceeding for passing a final decree between other types of mortgages and usufructuary mortgage. This Court in no uncertain terms held:
(SCC p. 440, para 9) "9. The proceeding in the preliminary decree does not get terminated by dismissal of IA No. 58 of 1972, on 26-6-1975 or for non-prosecution. Till date of passing the final decree and its execution or till the remedy is barred by limitation under Article 137 of the Schedule to the Limitation Act, 1963 the court has power and jurisdiction to entertain the application to pass the final decree. At any time before the remedy is barred, it is open to the plaintiff to deposit the redemption money under the preliminary decree. The dismissal of the earlier application or non-prosecution, therefore, does not per se bar the right of the plaintiff. But if remedy to enforce preliminary decree for the redemption is barred by the limitation, thereafter the right remains unenforceable. The deposit, therefore, is non est and the court cannot proceed to pass final decree as the remedy is lost. Therefore, the mere dismissal of the first application for non-prosecution and withdrawal of the redemption money deposited thereunder per se creates no bar to entertain second application. Equally instead of availing the remedy of depositing the redemption amount in the
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR pending proceedings under Rule 8(1) of Order 34, the respondent instituted an independent suit for redemption. Per force, though it does not operate as bar to maintain the application to pass final decree, court cannot proceed further with the application. Otherwise conflicting decisions would arise giving rise to multiplicity of proceedings. The court would stop to proceed further in the matter. In view of the finding that the application to pass final decree is barred by limitation, the trial court has no jurisdiction to proceed with the application under Rule 8(3) of Order 34 and to pass final decree. Accordingly, though for different reasons, the decree of the High Court, in the second appeal, is legal and does not warrant interference. The appeal is dismissed but without costs."
44.6. In the case of Narayan Deorao Javle (D) through LRs vs. Krishna and Others reported in (2021) 17 SCC 626 , paragraph 14 to 19 and 27 reads as under:
"14. In Allokam Peddabbayya [Allokam Peddabbayya v. Allahabad Bank, (2017) 8 SCC 272 : (2017) 4 SCC (Civ) 62] , the purchaser filed a suit for injunction. The suit was dismissed. The appeal against the judgment and decree of the trial court was also dismissed. It is thereafter, a suit for redemption of mortgage was filed impleading the bank as the defendant. The sale certificate was issued to the purchaser on 2-7-1997 after filing of the suit for injunction and after the
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR objections of the plaintiff in execution were dismissed, so is the appeal against an order of dismissal of objections was dismissed. It was in these circumstances, this Court held as under : (SCC p. 279, paras 12 & 14) "12. The sale certificate was issued to Defendant 2 on 2-7- 1997 followed by delivery of possession in Execution Petition No. 203 of 1997. The objection of the plaintiffs in Execution Appeal No. 996 of 1997 was also rejected. Only thereafter the plaintiffs instituted OS No. 96 of 1999 for redemption of the mortgage under Order 34 Rule 1CPC contending that they were willing to deposit the mortgage dues and that the decree in OS No. 68 of 1987 was not binding on them because they had not been impleaded as party in the same. In cross-examination, the plaintiffs acknowledged having been informed by their lawyer at the time of purchase, of the mortgage created by deposit of title deeds, by Defendants 3 and 4.
***
14. No challenge was laid out in OS No. 96 of 1999, either to the auction-sale or to set aside the sale certificate issued to Defendant 2. The reliance upon Order 34 Rule 1CPC is completely misconceived as under Rule 8 the right to redemption survived only till confirmation of the sale and not thereafter. The suit was instituted only after issuance of the sale certificate and the question for redemption had become irrelevant."
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR In view of the said fact, the judgment referred to by the learned counsel for the respondent is not applicable to the facts of the present case.
15. Still further, in terms of Section 91 of the Act, the plaintiff having stepped into the shoes of the mortgagor in respect of land purchased by him has a right to redeem the land mortgaged. In addition, Order 34 Rule 1 of the Code provides that all persons having an interest either in the mortgage- security or in the right of redemption shall be joined as parties to any suit relating to the mortgage including suit for foreclosure. The original mortgagors i.e. Defendants 1 and 2 denied the plaintiff's right to redeem the property though admitting they have borrowed Rs 1000 from the plaintiff. It was pleaded that the plaintiff was put in possession of the suit property for ten years and, therefore, the plaintiff was required to resell the property to Defendants 1 and 2. But the said defendant has not supported such plea in evidence. Defendants 1 and 2 entered into compromise with the mortgagee to pay the mortgage amount. The said mortgage amount was not paid which led to passing of the final decree. Thus, it is a case of collusion between the original mortgagors and the mortgagee so as to defeat the right of the plaintiff.
16. The equity of redemption means a right to redeem the property based upon equitable principles. This Court in a judgment reported as Shivdev Singh v. Sucha Singh [Shivdev Singh v. Sucha Singh, (2000) 4 SCC 326] , held that the right of redemption recognised under the Act is a statutory and legal right which cannot be extinguished. This Court held as under : (SCC p. 330, para 8)
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR "8. ... The right of redemption recognised under the Transfer of Property Act is thus a statutory and legal right which cannot be extinguished by any agreement made at the time of mortgage as part of the mortgage transaction."
17. In Achaldas Durgaji Oswal v. Ramvilas Gangabisan Heda [Achaldas Durgaji Oswal v. Ramvilas Gangabisan Heda, (2003) 3 SCC 614] , this Court held that the right of redemption is a statutorily recognised right provided under Section 60 of the Act and after the judgment of the Privy Council in Thumbasawmy Mudelly v. Mahomed Hossain Rowthen [Thumbasawmy Mudelly v. Mahomed Hossain Rowthen, 1875 SCC OnLine PC 14 : (1874-75) 2 IA 241 : ILR (1876-1878) 1 Mad 1] , called upon the legislature to make suitable amendments, this Court held as under : (Achaldas Durgaji Oswal case [Achaldas Durgaji Oswal v. Ramvilas Gangabisan Heda, (2003) 3 SCC 614] , SCC p. 621, para 11) "11. The doctrine of redemption of mortgaged property was not recognised by the Indian courts as the essence of the doctrine of equity of redemption was unknown to the ancient law of India. The Privy Council in Thumbasawmy Mudelly v. Mahomed Hossain Rowthen [Thumbasawmy Mudelly v. Mahomed Hossain Rowthen, 1875 SCC OnLine PC 14 : (1874-75) 2 IA 241 : ILR (1876-1878) 1 Mad 1] called upon the legislature to make a suitable amendment which was given a statutory recognition by reason of Section 60 of the Transfer of Property Act...."
18. In a recent judgment of this Court reported as Jamila Begum v. Shami Mohd. [Jamila Begum v. Shami Mohd.,
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR (2019) 2 SCC 727 : (2019) 2 SCC (Civ) 63] , it was held that by virtue of purchase of the property, the purchaser has purchased the entire equity of redemption. This Court held as under : (SCC p. 740, para 32) "Whether decree for redemption of mortgage is correct?
32. Section 60 of the Transfer of Property Act, 1882 provides that at any time after the money becomes due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money to require the mortgagee to deliver the mortgage deed and all documents relating to the mortgaged property, and where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor. In Shivdev Singh v. Sucha Singh [Shivdev Singh v. Sucha Singh, (2000) 4 SCC 326] , it was held as under : (SCC p. 330, para 8) '8. ... The right of redemption recognised under the Transfer of Property Act is thus a statutory and legal right which cannot be extinguished by any agreement made at the time of mortgage as part of the mortgage transaction.' "
19. The equity of redemption is a right which is subsidiary to the right of ownership. Such right is not over and above the right of ownership purchased by the plaintiff. The expression "equity of redemption" is a convenient maxim but an owner, who has stepped into the shoes of the mortgagor, after the purchase from the mortgagor but before filing a suit for
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR foreclosure is entitled to redeem the property in terms of Section 60 of the Act.
***
27. Another judgment referred to by the High Court is Mrutunjay Pani v. Narmada Bala Sasmal [Mrutunjay Pani v. Narmada Bala Sasmal, 1961 SCC OnLine SC 41 : AIR 1961 SC 1353] . It was an appeal filed by the mortgagee who claimed to have purchased the equity of redemption. The argument of the appellant was that the mortgagee has failed to pay rent which was the responsibility of the mortgagor in terms of the mortgage deed. For the default of payment of arrears of rent, the property was put to sale and was purchased by the mortgagee. Therefore, the remedy of the mortgagor is to seek setting aside of sale. It was held as under : (AIR pp. 1355-56, para 7) "7. The legal position may be stated thus : (1) The governing principle is "once a mortgage always a mortgage" till the mortgage is terminated by the act of the parties themselves, by merger or by order of the court. (2) Where a mortgagee purchases the equity of redemption in execution of his mortgage decree with the leave of court or in execution of a mortgage or money decree obtained by a third party, the equity of redemption may be extinguished; and, in that event, the mortgagor cannot sue for redemption without getting the sale set aside. (3) Where a mortgagor purchases the mortgaged property by reason of a default committed by him the mortgage is not extinguished and the relationship of mortgagor and
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR mortgagee continues to subsist even thereafter, for his purchase of the equity of redemption is only in trust for the mortgagor."
The said judgment does not advance the case of the mortgagee."
44.7. In the case of Harminder Singh (supra) the relevant paragraph reads as under:
"Since the mortgage was not redeemed by the mortgagor within a period of 30 years, the plaintiff filed a suit for declaration that she had become the owner after the extinguishment of the mortgage rights and for permanent injunction.
The suit was decreed by the trial Court. Such decree was affirmed by the First Appellate Court as well but in Second Appeal, the suit was dismissed relying upon the judgment of this Court in 'Sampuran Singh Vs. Niranjan Kaur', reported in (1999) 2 SCC 679.
After the judgment was rendered by the Single Judge Bench, the Full Bench of the Punjab and Haryana High Court in 'Ram Kishan & Ors. Vs. Sheo Ram & Ors.' reported in AIR 2008 P&H 77 held that once a usufructuary mortgage is created, the mortgagor has a right to redeem the mortgage at any point of time on the principle that once a mortgage always a mortgage. Such judgment was affirmed by this Court in 'Singh Ram (Dead) Through Legal
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR Representatives Vs. Sheo Ram & Ors.' reported in (2014) 9 SCC 185."
44.8. In the case of N. Nanjappa and Another vs. Siddiah and Others reported in (1972) SCC Online KAR 130, paragraph 8 reads as under:
"8. The usufructuary mortgagee in this case, as already found, was able to maintain possession of the suit properties on the basis of the title derived by him under the mortgage deeds, and therefore he is liable in law to hold the mortgaged property for the benefit of the mortgagor. He cannot be permitted to make use of his position as a mortgagee for depriving the mortgagor of the equity of redemption. The same is the principle underlying in the legal maxim "once a mortgage, always a mortgage". It is the right of a mortgagor on redemption to get back the subject of the mortgage and to hold and enjoy the same as he was entitled to hold and enjoy before the mortgage. Unless the right conferred on the mortgagor under Section 60 of the Transfer of Property Act has been extinguished by the act of parties or by a decree of a court, the mortgagee cannot prevent the mortgagor from securing a decree for redemption. I am of the opinion that in the instant case, defendants 1 and 2 have not been able to establish any tenable ground to deprive the mortgagor or his successors in interest of their right to redeem the mortgages. The courts below were wrong in coming to the conclusion that the plaintiffs had lost their right to redeem the properties by
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR virtue of the proceedings in O.S. No. 134 of 1918-1919 and Ex. Case No. 395 of 1928-1929."
44.9. In the case of Ishwar Dass Jain (D) through LRs vs. Sohan Lal (D) through LRs reported in (2000) 1 SCC 434, paragraph 32 reads as under:
"32. The appellate court, in our view, went wrong in thinking that the plaintiff had only a half share in the property. The defendant's title was a derivative title as mortgagee. Having come into possession of the whole property as a mortgagee from the plaintiff, treating the plaintiff as full owner it was not open to the defendant to question the title of the plaintiff. In Tasker v. Small [(1837) 3 My & Cr 63 : 5 LJ Ch 321] Lord Cottenham said:
"To him (mortgagee) it is immaterial, upon repayment of the money, whether the mortgagor's title was good or bad. He is not at liberty to dispute it any more than a tenant is at liberty to dispute his landlord's title."
A usufructuary mortgagee cannot deny the title of his mortgagor. Nor can he set up adverse possession unless he actually leaves the holding and re-enters under a different status (Jai Nandan Tewari v. Umrao Koeri [AIR 1929 All 305 : 119 IC 568] and Shri Ram v. Thakur Dhan Bahadur Singh [AIR 1965 All 223] )."
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR 44.10. In the case of Ram Rattan (Dead) by LRs vs. Devi Ram and Others in Civil Appeal No. 1541 of 2011 dated 07.10.2021, relevant portion reads as under:
"The plaintiff is in appeal before this Court. The plaintiff is the Mortgagee under Ram Law, Mortgagor. The grievance of the appellants is that the mortgage was 45 years before filing the suit, therefore, they have become owners of the suit property. The Full Bench of Punjab and Haryana High Court, in "Ram Kishan & Ors. vs. Sheo Ram & Ors.", has held that there is no limitation period in case of usufructuary mortgage. "Once a mortgagee always a mortgage" was the principle applied. The said judgment has been upheld by this Court in "Singh Ram (D) Through LRs Vs. Sheo Ram & Ors." reported in (2014) 9 SCC 185.
In fact, there is a reference to the Special Leave Petition filed against the decision of Full Bench. It is the same Special Leave Petition which has been decided in Singh Ram (D) (Supra)."
44.11. In the case of Celir LLP vs. Bafna Motors (Mumbai) P. Ltd and Others reported in (2024) 242 Comp. Cas 45 (SC), paragraph 42 to 44 reads as under:
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR "42. Section 60 of the 1882 Act provides the general statutory right of the mortgagor to redeem the mortgage and reads as below:
"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 mortgage 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 mortgage has been extinguished:
Provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a court.
The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption.
Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.
Redemption of portion of mortgaged property.--Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor."
43. This Court in Narandas Karsondas [Narandas Karsondas v. S.A. Kamtam, (1977) 3 SCC 247] , upon examination of Section 60 of the 1882 Act, held that the mortgagor's right to redeem will be extinguished only after completion of sale by a registered deed, and made the following relevant observations reproduced below : (SCC pp. 253-55, paras 28, 33-35 & 37) "28. The rights and liabilities of mortgagor are dealt with in Section 60 of the Transfer of Property Act. It is that 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,
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR 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 to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished. There is a proviso that the right conferred by this section has not been extinguished by the act of the parties or by decree of a court. The right conferred by Section 60 of the Transfer of Property Act is called a right to redeem. Therefore, the said Section 60 provides for a right of redemption provided that the right has not been extinguished by the act of parties.
***
33. In India, the word "transfer" is defined with reference to the word "convey". The word "transfer" in English law in its narrower and more usual sense refers to the transfer of an estate in land. Section 205 of the Law of Property Act in England defines:"Conveyance" includes a mortgage, charge, lease, assent, vesting declaration, vesting instrument. The word "conveys" in Section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership.
34. The Transfer of Property Act is available to the mortgagor unless it has been extinguished by the act of parties. The combined effect of Section 54 of the Transfer of Property Act and Section 17 of the Registration Act is that a contract for sale in respect of immovable property of the value of more than one hundred rupees without
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR registration cannot extinguish the equity of redemption. In India it is only on execution of the conveyance and registration of transfer of the mortgagor's interest by registered instrument that the mortgagor's right of redemption will be extinguished. The conferment of power to sell without intervention of the Court in a mortgage deed by itself will not deprive the mortgagor of his right to redemption. The extinction of the right of redemption has to be subsequent to the deed conferring such power. The right of redemption is not extinguished at the expiry of the period. The equity of redemption is not extinguished by mere contract for sale.
35. The mortgagor's right to redeem will survive until there has been completion of sale by the mortgagee by a registered deed. In England a sale of property takes place by agreement but it is not so in our country. The power to sell shall not be exercised unless and until notice in writing requiring payment of the principal money has been served on the mortgagor. Further Section 69(3) of the Transfer of Property Act shows that when a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale. Therefore, until the sale is complete by registration the mortgagor does not lose right of redemption.
***
37. In view of the fact that only on execution of conveyance, ownership passes from one party to another it
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR cannot be held that the mortgagor lost the right of redemption just because the property was put to auction. The mortgagor has a right to redeem unless the sale of the property was complete by registration in accordance with the provisions of the Registration Act."
(emphasis supplied)
44. A similar view was taken by this Court in L.K. Trust v. EDC Ltd. [L.K. Trust v. EDC Ltd., (2011) 6 SCC 780 : (2011) 3 SCC (Civ) 475] wherein it was observed as follows : (SCC p. 798, paras 53-55) "53. On analysis of arguments advanced at the Bar, this Court finds that the proposition that in India it is only on execution of conveyance and the registration of transfer of the mortgagor's interest by registered instrument that the mortgagor's right of redemption stands extinguished is well settled. Further it is not the case of the appellant that a registered sale deed had been executed between the appellant Trust and Respondent 1 pursuant to the Resolution passed by Respondent 1 and, therefore, in terms of Section 54 of the Transfer of Property Act, 1882 no title relating to the disputed property had passed to the appellant at all.
54. What is ruled inNarandas Karsondas [Narandas Karsondas v. S.A. Kamtam, (1977) 3 SCC 247] is that in India, there is no equity or right in property created in favour of the purchaser by the contract between the mortgagee and the proposed purchaser and in view of the
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR fact that only on execution of conveyance, ownership passes from one party to another, it cannot be held that the mortgagor lost the right of redemption just because the property was put to auction. In that case, the respondent housing society, the mortgagor, had taken loan from the co-respondent finance society and mortgaged the property to it under an English mortgage. On default, the mortgagee exercised its right under the mortgage to sell the property without intervention of the court and after notice, put the property to sale by public auction. The appellant auction- purchaser paid the sums due. Before the sale was completed by registration, etc. the mortgagor sought to exercise his right of redemption by tendering the amount due. The appellant had based his case on the plea that in such a situation the mortgagee acts as agent of the mortgagor and hence binds him.
55. Rejecting the appeal, this Court inNarandas Karsondas case [Narandas Karsondas v. S.A. Kamtam, (1977) 3 SCC 247] has held that the right of redemption which is embodied in Section 60 of the Transfer of Property Act is available to the mortgagor unless it has been extinguished by the act of parties or by decree of a court. What is held by this Court is that, in India it is only on execution of the conveyance and registration of transfer of the mortgagor's interest by registered instrument that the mortgagor's right of redemption will be extinguished but the conferment of power to sell the mortgaged property without intervention of the court, in a mortgage deed, in itself, will not deprive the mortgagor of his right of redemption. This Court in the
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR said case further explained that the extinction of the right of redemption has to be subsequent to the deed conferring such power and the right to redemption is not extinguished at the expiry of the period. This Court emphasised in the said decision that the equity of redemption is not extinguished by mere contract for sale."
(emphasis supplied)
45. Following the judgments of Hon'ble Supreme Court in the aforementioned cases, in the present case, the mortgage is of usufructuary mortgage, the right to seek redemption arises on the date when a Mortgagor pay or tender the amount to the Mortgagee or deposit the same in the Court as mortgaged money. It is well settled principle in law in the aforementioned cases that "once a mortgage, always a mortgage unless redeemed". The Mortgagee cannot claim right over the mortgaged property just because long period of time has been lapsed since in the case of usufructuary mortgage, unlike other types of mortgages, the Mortgagee cannot claim ownership over the suit property even after the expiry of thirty years from the date of mortgage. In this regard, I find force in the
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR submission made by learned Senior Counsel appearing for the appellants (mortgagor) to emphasising on the judgment of Hon'ble Supreme Court particularly paragraphs 14 and 15 in the case of Singh Ram (supra).
It is also to be noted from the judgment of the Hon'ble Supreme Court in the case of Ram Rattan (supra), wherein it is held that, in a suit for usufructuary mortgage, where the right to recover the possession by the Mortgagor as per Section 62 of the Transfer of Property Act, 1882 commences on payment of mortgaged money.
It is pertinent to mention herein that the right of usufructuary mortgage is not only an equitable right but it has a statutory recognition under Section 62 of Transfer of Property Act. Applying the aforementioned principles to the present case, wherein the claim made by the legal representatives of Kunnegowda (Mortgagor) seeking redemption of mortgage, despite the unregistered shara at Exhibit P15, the Mortgagor-Kunnegowda and his legal representatives have right to claim redemption of
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR mortgage as long as the Mortgagee- S. Narasimhaiah or his legal representatives, have not filed suit for foreclosure nor made any claim for return of the amount due to them.
46. In view of the legal position enunciated by the Hon'ble Supreme Court in the case of Jayasingh Dnyanu Mhoprekar (supra) and in the case of Achaldas Durgaji Oswal (supra), wherein a period of five years was contractually stipulated in the Mortgage Deed by mutual consent of the parties, it has been held by the Hon'ble Supreme Court that such stipulation is intended to operate for the benefit of the Mortgagee. Any restriction imposed upon the mortgagor from exercising the right of redemption during the said interregnum emanates from the terms of the Mortgage Deed between the parties.
However, the fixation of such a period cannot, in law, be construed as prescribing a limitation period under Section 62 of the Transfer of Property Act, 1882. The said stipulation is merely a contractual term in the Mortgage Deed to protect the interest of the Mortgagee and does not
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR curtail or extinguish the statutory right of redemption vested in the Mortgagor.
47. In that view of the matter, I am of the view that the appellants in RSA No.1884 of 2023 and RSA No.2483 of 2017 have made out case for interference in the impugned judgment and decree passed by the Courts below. Hence, the substantial question of law and the questions arises for consideration as stated above favours the legal representatives of Kunnegowda (Mortgagor) -
appellants in RSA No.1884 of 2023 and RSA No.2482 of 2017. Hence, I pass the following:
ORDER
1) RSA No.287 of 2018 is dismissed, confirming the judgment and decree dated 24.10.2017 passed in R.A.No.34 of 2016 on the file of the Senior Civil Judge, Malavalli and judgment and decree dated 29.02.2016 passed in O.S.No.19 of 2007 on the
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR file of the I Additional Civil Judge and JMFC at Malavalli, dismissing the suit of the plaintiffs.
2) RSA No.1884 of 2023 is allowed, setting aside the judgment and decree dated 27.07.2023 passed in R.A.No.05 of 2020 on the file of the Senior Civil Judge and JMFC at Malavalli, confirming the judgment and decree dated 21.12.2019 passed in O.S.No.271 of 1991 on the file of the Principal Civil Judge and JMFC at Malavalli, decreeing the suit of the plaintiffs.
3) RSA No.2173 of 2017 is dismissed and RSA No.2482 of 2017 is allowed. The judgment and decree dated 09.08.2017 passed in R.A.No.36 of 2012 on the file of the Senior Civil Judge, Malavalli, and judgment and decree dated 01.08.2012 passed in O.S.No.59 of 2007 on the file of the I Additional Civil Judge, at Malavalli are
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NC: 2025:KHC:40259 RSA No.287 of 2018 C/W RSA Nos. 2173 of 2017 2482 of 2017 &1884/2023 HC-KAR hereby set-aside. The suit in O.S.No.59 of 2007 is hereby decreed.
Sd/-
(E.S.INDIRESH) JUDGE SB List No.: 1 Sl No.: 2