Punjab-Haryana High Court
Banarsi Dass vs Jiwan Ram (Deceased) Son Of Dewan Chand ... on 5 April, 1990
Equivalent citations: AIR1991P&H85, AIR 1991 PUNJAB AND HARYANA 85, (1990) 2 PUN LR 204, (1990) 2 CURLJ(CCR) 346, 1990 REVLR 2 61, (1990) 2 LJR 249, (1990) 2 RRR 101, 1990 HRR 373, 1990 PUNJ LJ 414
JUDGMENT
1. Vide this judgment, the present regular second appeal and also regular second appeals Nos. 3071 and 3072 of 1987 arising between the same parties and relating to the same land are being diposed of: Pleadings in the three suits are common. Thus undisputed facts are taken from the file of regular second appeal No. 2481 of 1987.
2. On June 5, 1951,the land was mortgag-ed with possession for Rs. 1,200/-. After expiry of the period of limitation prescribed for redemption of the mortgage, a sum of Rs. 1,200/- was paid on September 29, 1981, to one of the mortgagees and the mortgage deed was taken. Civil Suit No. 16 of 1984 was filed by Banarsi Das and another for declaration that the land measuring 16 kanals stood redeemed and the plaintiffs were in possession thereof free from all encumbrances. The plea taken by the defendants, Jiwan Ram and others was that at the time of creation of the mortgage which was with possession, the mortgagor was allowed to remain as a tenant. The mortgage was not redeemed within the period of thirty years. A sum of Rs. 1,200/-was paid on September 29, 1981, to one of the mortgagees towards rent and the mortgage deed was taken away by Banarsi Dass and others for getting a mutation of inheritance recorded in their favour. This suit was dismissed by the trial Court on September 10, 1985, and appeal filed by Banarsi Dass and others failed in the lower appellate Court. Hence this regular second appeal.
3. Two other suits were filed by the mortgagees. Civil suit No. 19 was filed by Mukesh Gupta for declaration that he had become owner of the land and the mortgage was not redeemed within thirty years. Since the defendants were threatening to get a mutation sanctioned for redemption of land, the suit was filed. Suit No. 20 was filed by Jiwan Ram also claiming similar declaration as claimed in the suit of Mukesh Gupta. In these two suits, the plaintiffs claimed declaration with respect to their shares in the land. Both these suits were contested by Banarsi Dass and others alleging that on payment of Rs. 1,200/- the mortgage stood redeemed. Both these suits were decreed by the trial Court and appeals failed in the lower appellate Court. Hence regular second appeals Nos. 3071 and 3072 of 1987 by Banarsi Dass and others,
4. It has been argued on behalf of the appellants that the Limitation Act merely bars the remedy and not the right. Reliance has been placed on Section 27 of the Limitation in support of this contention, which reads as under:
"27. Extinguishment of right to property.-- At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."
A bare perusal of Section 27 would show that after expiry of the period of limitation prescribed for filing suits for possession under the Limitation Act, even the right to sue for possession is extinguished. The matter was under consideration of this Court in Bedi alias Bhedi v. Girdhari (since deceased), 1986 Pun LJ 622, wherein it was held that under Section 27 of the Limitation Act not only the remedy was barred but it also extinguished the title. The right of redemption having extinguished by lapse of time could not be revived even by consent of the parties.
5. It has been argued on behalf of the appellants that Section 27 of the Limitation Act only applies to suits for possession and the present suit filed by Banarsi Dass and others is not a suit for possession but is a suit for declaration. This contention again cannot be accepted. Section 27 of the Limitation Act as has been reproduced when talks of period of limitation mentions that such period would be for the suits for possession. In the suits for possession by redemption of the mortgaged property, the period of limitation is 30 years as provided under Article 61 of the Limitation Act. After the expiry of the said period, not only the remedy to file a suit for redemption of the mortgage is barred but the right in the property in dispute is also extinguished.
6. On behalf of the appellants it has been argued that the provisions of Sections 60 and 67 of the Transfer of Property Act are not applicable to Punjab and only the general principles incorporated in the provisions of the Transfer of Property Act are applicable and not the strict and technical provisions. So far as proposition of law is concerned, there is no dispute. In Amar Singh v. Sarna (died) represented by his L.Rs., 1982 Pun LJ 19, it was held that only principles of Transfer of Property Act are applicable in the State of Punjab and not the technical provisions. A Division Bench of this Court in Sardara Singh v. Harbhajan Singh, 1974 Pun LJ 341, had also held that technical rules embodied in the remaining provisions of the Act were not applicable. Reference was made to notification applying the provisions of Sections 54, 107 and 123 of the Transfer of Property Act to Punjab. Section 60 of the Transfer of Property Act reads as under:
"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 acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:
Provided that the right conferred by this section has not been extinguished by 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.
Redemption of portion of mortgaged pro-perty. 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."
The general principle contained in Section 60 of the Transfer of Property Act is that the mortgagor retains his right on payment of the amount due at the proper time and to get the mortgaged property redeemed calling upon the mortgagee to deliver its possession or to reconvey the mortgaged property. A person having a share in the property mortgaged can only get his share redeemed if mortgagee/ mortgagees consent to the same. This question has been subject-matter of decision of this Court. In Narain Singh v. Teja Singh, AIR 1955 Punjab 96, it was held that under Section 60 of the Transfer of Property Act, the integrity of the mortgage is not broken except where the mortgagee had purchased or otherwise acquired as proprietor a certain portion of the property mortgaged. It was further observed that the fact that the mortgagees themselves allowed a portion of the property with them to be redeemed do not entitle the mortgagor to redeem their portion only of the property. In Mawasi Raje Ram v. Mst. Manbhari, AIR 1964 Punjab 226, the Division Bench while referring to the provisions of Section 19 of the Limitation Act relating to acknowledgment of right of redemption by only one of the mortgagees held that the same did not amount to acknowledgment as contemplated by the section as to save the bar of limitation for suit for redemption. It was held that an acknowledgment of the right of redemption in order to save limitation should be made by all the mortgagees where there was one single mortgage in favour of several mortgagees. In such a contingency an acknowledgment signed by one only of them, even though the several mortgagees were recorded to have a definite share each would not hold good even with regard to the share of him who had signed it as the mortgage was indivisible and would not save the bar of limitation for suit for re-demption.
7. The matter was also considered by the Himachal Pradesh High Court in Ambe Lal v. Phina, AIR 1974 HP 11. Therein, some of the co-mortgagees induced the co-mortgagors to make payment to them without obtaining consent of the other co-mortgagees. It was held that they were not estopped from pleading that redemption was invalid. Narain Singh's case (supra) was relied upon.
8. As back as in 1922, a Division Bench of Lahore High Court comprising Shadi Lal and Harrison, JJ. in Mussammat Malan v. Tara Singh, AIR 1922 Lahore 64, held that payment of mortgage money to one of the several co-mortgagees without the consent of the other co-mortgagees was not a complete discharge of the mortgage debt binding on all the mortgagees. No case to the contrary has been cited by counsel for the appellants except a decision of C. S. Tiwana, J. in Sardara v. Karam Singh, 1982 Pun LJ 30. However, the said decision is not at" all applicable to the case in hand. An order of redemption was passed before the expiry of the period of limitation and it was held that after the expiry of the period of limitation, redemption could not be challenged on the ground that the share of mortgaged money had not been paid. This decision is not applicable to the case in hand as the amount of Rs. 1200/- was not paid within the period of thirty years. As already stated above, the mortgage was crealed on June 5, 1951, and this amount was paid on September 29, 1981, i.e. after the expiry of period of thirty years. The mortgage was created by Banarsi Dass, Dhani Ram and Siri Krishan Sons of Marnan in favour of Jiwan Ram and Puran Chand. Mukesh Gupta is the grandson of aforesaid Puran Chand. Amount of Rs. 1200/- was alleged to have been paid to Jiwan Ram only.
9. It has been argued that the provisions of Section 60 of the Transfer of Property Act are based on equity and not the provisions of Section 67 of the Transfer of Property Act. I do not find any merit in this contention. If the right to sue for redemption is extinguished by lapse of time and the mortgagee was with possession, obviously the mortgagors cannot sue for possession. That being the position, the mortgagees can bring a suit that mortgage having extinguished by lapse of time having not been redeemed, they had become full owners. When the right is extinguished in view of Section 27 of the Limitation Act, no question of equity remains to be decided.
10. Puran Chand died on June 18, 1978, leaving behind a Will in favour of Mukesh Gupta who on the basis of the said Will inherited the mortgagee rights of Puran Chand.
11. During the pendency of the appeals, Jiwan Ram is also stated to have died. The appeals could be proceeded even in the absence of legal heirs of Jiwan Ram as he is stated to have died after the judgment of the trial Court and before the appeal was filed. His date of death is stated to be June 27, 1987.
12. Finding no merit in the appeals the same are dismissed. However, there will be no order as to costs.
13. Appeals dismissed.