Delhi District Court
Shri Rohtas Kumar vs Smt. Premi Devi Through Lrs on 20 July, 2017
IN THE COURT OF MS. NEHA, CIVIL JUDGE09,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Suit No : 93744/16 (Old No. 60/14)
1. Shri Rohtas Kumar,
2. Shri Surinder Kumar,
3. Shri Parma Nand,
All S/o of Late Sh. Daya Kishan,
All R/o House No. 4731/47,
Regharpura, Karol Bagh,
New Delhi - 110005.
4. Shrimati Bishan Devi,
W/o Sh. Ishwar Dass,
D/o Late Sh. Daya Kishan,
R/o 6184/3, Block1,
Dev Nagar, Karol Bagh,
New Delhi - 110005. .... Plaintiffs.
Versus
Smt. Premi Devi through LRs
1. Shri Kamal Kishore,
2. Shri Ravi Kishore,
Both S/o Late Sh. Puran Chand,
Both R/o 4721/47, Regharpura,
Delhi - 110005.
3. Smt. Mohini,
W/o Shri Prabhu Dayal,
D/o Late Sh. Puran Chand,
R/o AJ43C, Shalimar Bagh,
Delhi - 110088.
Suit No. 93744/16 Page 1 of 27
Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.).
4. Smt. Bimla Devi @ Bimla Sakrawat,
W/o Shri Devinder Kumar,
D/o Late Sh. Puran Chand,
R/o 22C/AC Block, Shalimar Bagh,
Delhi - 110088. .... Defendants.
SUIT OF REDEMPTION.
Date of Institution : 30.05.1995
Date of reserving Judgment : 03.04.2017
Date of pronouncement : 20.07.2017
JUDGMENT
1. Vide this Judgment, I shall dispose of suit for redemption.
2. Brief facts as stated in the plaint are as follows : 2.1. Sh. Daya Kishan (since deceased), the father of the plaintiffs, had mortgaged the lease hold rights of the plots no. 1071,1072 and 1073 measuring 50 sq. yds each i.e. land measuring 150 sq. yds with superstructures thereon to the extent of one half i.e. land measuring 75 sq. yds and superstructure on 75 sq. yds for total secure amount of Rs. 5,000/ along with 1% interest per month, with the defendant. The other half belonged to and possessed by Sh. Ram Dayal, brother of Sh. Daya Kishan.
2.2. Sh. Daya Kishan had died on 10.04.1986 leaving behind the plaintiffs as his legal representatives. Plaintiff no. 4 had relinquished her rights, title and interest in the equity of redemption in favour of the plaintiffs no. 1 and 3 vide relinquishment deed dated 18.11.1993. Smt. Suit No. 93744/16 Page 2 of 27 Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.). Chanderwati, wife of Sh. Daya Kishan had predeceased him on 17.06.1984.
2.3. The mortgage was with possession but along with the mortgage deed, a rent note dated 12.04.1961 was also got executed from Sh. Daya Kishan in lieu of interest. In fact, the actual possession was not transferred by the mortgagor in favour of mortgagee. The possession remained with Sh. Daya Kishan and after his death, it remained with the plaintiffs.
2.4. The rent of the property was Rs. 50/ per month with the stipulation of interest @ 1% per month on mortgage money of Rs. 5,000/. The stipulations in rent deed and mortgage deed cannot be given effect as the interest payable on secured debt cannot exceed 7½ % per annum. The defendant has been paid interest / rent at Rs. 50/ per month from the date of mortgage till 10.07.1994 which comes to Rs. 19,750/. The money payable during the said period at the statutory rate amounts to Rs. 11,850/. After adjustment of Rs. 5,000/ towards the principal, a sum of Rs. 2,900/ had been paid in excess and the same is refundable to the plaintiffs by the defendant along with interest. The defendant had not been issuing receipts for the money regularly paid to her.
2.5. No limitation is fixed by the parties for the redemption of the mortgage and the mortgagor is at liberty to get the mortgaged property redeemed after making full payment in lump sum to the mortgage. On 01.08.1994, the plaintiffs offered to the defendant that the mortgaged property be relinquished from the charge by redemption but she Suit No. 93744/16 Page 3 of 27 Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.). refused. The matter was again taken up with her with the intervention of friends and well wishers but to no avail. The plaintiff served a notice dated 05.09.1994 upon the defendant. A reply dated 16.09.1994 was received from the defendant in which she had set up false and frivolous defence.
2.6. The payment of interest on mortgage in the form of rent and the existence of relationship between the parties as mortgagor and mortgagee was duly admitted by the defendant in the notice dated 15.03.1986 served on Sh. Daya Kishan through Advocate Sh. Dinendra Kumar Sharma. The plaintiffs became entitled to a fresh period of 30 years from 15.03.1986 and the suit is within limitation. Hence, the present suit has been filed seeking following reliefs : Pass a decree for redemption of mortgaged property in favour of the plaintiffs no. 1 to 3 or all the plaintiffs and against the defendant with the costs of the suit. By said decree, amount refundable by the defendant to the plaintiffs or payable by the plaintiffs to the defendants be adjudicated. Money found due to the plaintiffs be decreed to be paid to them with interest till realization at the rate deemed reasonable by this Court.
Deliver to the plaintiffs the original registered mortgage deed and all documents relating to the mortgaged property which is in possession, power and custody of the defendant.
Suit No. 93744/16 Page 4 of 27Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.).
Deliver to the plaintiffs the original rent deed dated 12.04.1961 and to treat the possession of plaintiffs on the mortgaged property to be possession as owners thereof and not as tenant of defendant.
3. The defendant has filed written statement taking following defences: 3.1. The present suit is not maintainable as the prayer for redemption is barred by time. There is no time fixed for redemption in the mortgage deed dated 11.04.1961 and thus, the right to redeem accrued on the date of mortgage deed. The period of limitation for redemption of mortgage is 30 years and the time begins to run when the right to redeem the possession accrues as per Article 61 of the Limitation Act. The suit of the plaintiff has been filed on 18.07.1995 and the period of 30 years expired on 11.04.1991. Hence the suit is barred by limitation and is liable to be dismissed.
3.2. The possession of the property was given to the mortgagee on 11.04.1961 and on the next day after executing the rent note, the possession was handed over by the mortgagee to the mortgagor. Sh. Daya Kishan remained in the suit premises as tenant till his death and the plaintiffs entered into the shoes of Sh. Daya Kishan. The payment of interest on mortgage in the form of rent has been denied by the defendant. Rest of the averments are denied in the written statement.
4. The plaintiff has filed replication to the written statement Suit No. 93744/16 Page 5 of 27 Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.). wherein it is stated that the defendant, by plaint dated 6.5.1995, instituted a suit for perpetual injunction in the court of Sh. Sanjeev Kumar Jain, the then Ld. Civil Judge bearing suit No. 439/95 on the basis of a subsisting mortgage in her favour and the suit has been dismissed. Rest of the averments as made in the written statement are denied.
5. On completion of pleadings, following issues were framed by the Ld. Predecessor of this Court on 07.02.1997 for consideration :
1. Whether the suit is barred by limitation ? OPD.
2. Whether the plaintiff has cause of action to file the present suit ? OPP.
3. Whether the plaintiffs continued in possession of the suit premises retaining their rights over the property mortgaged to the defendant or the plaintiffs were and are in possession of the mortgage property as tenant ? OPP/ OPD.
4. Whether the plaintiffs are entitled to the reliefs as prayed for ? OPP.
5. Relief.
6. After framing of issues, the plaintiffs filed an application under Order 6 Rule 17 CPC. The application was allowed vide order dated 13.01.2003. Written statement to the amended plaint was filed on 18.03.2003. No additional issue was framed. However, vide order Suit No. 93744/16 Page 6 of 27 Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.).
dated 22.09.2003, the issue No. 1 was reframed as under: "Whether suit is barred by law of limitation? OP Parties".
7. Vide said order, the burden to prove issue No.1 was placed upon the parties. The plaintiffs had to prove that the suit was within limitation and the defendant had to prove that it was barred by limitation.
8. The parties were then called upon to lead their respective evidence. The plaintiff examined Sh. Bhagwan Saha, LDC from the office of SubRegistrar, Asaf Ali Road, Delhi as PW1. He produced original record of mortgage deed dated 11.04.1961. The mortgage deed is Ex. PW2/1.
9. Sh. Chiranji Lal, younger brother of Sh. Daya Kishan, was examined as PW2. He has deposed that the mortgage deed was executed in his presence and he signed as a witness.
10. Sh. Surender Kumar, plaintiff No. 2 / son of Sh. Daya Kishan, was examined as PW3 who tendered his evidence by way of affidavit as Ex. PW3/A. He relied upon the following documents :
1. Certified copy of Jamabandi of three plots of land as Ex. PW3/1.
2. Site plan as Ex. PW3/2.
3. Original relinquishment deed dated 18.11.1993 as Ex. PW3/2.
4. Carbon copy of notice dated 5.9.1994 with postal receipt, AD card and certificate of posting as Ex.
Suit No. 93744/16 Page 7 of 27Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.).
PW3/4 to Ex. PW3/7.
5. Original reply dated 16.9.1994 as Ex. PW3/8.
6. Certified copy of plaint, written statement and judgment of suit titled as "Smt. Premi Devi Vs. Sh. Rohtas Kumar & Ors." as Ex. PW3/9 to Ex.
PW3/11.
7. Notice dated 15.3.1986 as Ex. PW3/12.
8. House Tax Receipts as Ex. PW3/13 to Ex. PW3/15.
9. House Tax Bill as Ex. PW3/16.
10. Original bill cum receipts for water charges as Ex.
PW3/17 to Ex. PW1/21.
11. Notice dated 21.11.2003 with postal receipt and AD card as Ex. PW3/22 to Ex. PW3/24.
12. Affidavit of Sh. Madan Lal Jain as Ex. PW3/25.
11. Sh. Raj Kumar, LDC, Record Room (Civil) Tis Hazari Courts was examined as PW4. He produced the original record of suit No. 439/95 titled as "Smt. Premi Devi Vs. Sh. Rohtas Kumar & Ors." decided by the Court of Sh. Sanjeev Jain, the then Ld. Civil Judge.
12. Sh. Dinendra Kumar Sharma, Advocate was examined as PW5. He relied upon the notice dated 15.3.1986 as Ex. PW5/1 (already Ex. PW3/12).
13. Sh. Ranvir Singh, LDC, Mauza Clerk from the Record Room, (Civil) was examined as PW6. He also produced the original record of suit bearing no. 439/95 titled as "Smt. Premi Devi Vs. Sh. Rohtas Suit No. 93744/16 Page 8 of 27 Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.). Kumar & Ors.".
14. All the plaintiff's witnesses were cross examined by the Ld. Counsel for the defendant. The plaintiffs did not examine any other witness and plaintiff's evidence was closed vide order dated 17.02.2005. The matter was then fixed for defence evidence.
15. In defence evidence, Sh. Puran Chand, husband / Attorney of defendant was examined as DW1 who tendered his evidence by way of affidavit as Ex. DW1/1. DW1 has relied upon the following documents : i. Special Power of attorney as Ex. DW1/1.
ii. Rent note as Ex. DW1/2.
iii. Copy of judgment in appeal as Ex. DW1/3.
16. DW1 was cross examined by the Ld. Counsel for the plaintiffs. The defendant did not examine any other witness and defendant's evidence was closed vide order dated 14.12.2005. Parties were then called upon to advance their final arguments in the matter.
17. Before the final arguments could be heard, the defendant expired. An application under Order 22 Rule 4 read with Section 151 CPC was filed on behalf of the plaintiff to implead the legal heirs of defendant on record. The application was allowed vide order dated 31.01.2017 and the legal heirs of defendant were substituted on record.
18. I have heard the arguments on behalf of Ld. Counsel for the parties and have perused the case file. Written arguments filed on behalf of the parties are also perused. My issuewise findings are as Suit No. 93744/16 Page 9 of 27 Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.). follows :
19. ISSUE NO. 1 : Whether the suit is barred by limitation ? Onus on Parties.
20. The onus to prove this issue was placed upon the parties. The plaintiff has to prove that the suit is within period of limitation and the defendant has to prove that the suit is barred by limitation.
21. Ld. counsel for defendant has argued that the mortgage in question was a simple mortgage and not usufructuary mortgage as contended by the plaintiffs. The plaintiff for the first time during the course of final arguments had taken plea that the mortgage was usufructuary mortgage and not a simple mortgage. The plaintiff's plea that actual possession was never transferred to the mortgagee is contrary to the contents of the mortgage deed. As per the mortgage deed Ex. PW2/1, the actual physical possession had been transferred to the mortgagee by the mortgagor. Further, if the possession remained with mortgagor Daya Kishan, then the plaintiffs cannot take a plea that the mortgage was usufructuary mortgage as in case of usufructuary mortgage, the mortgagee comes into possession to enjoy usufruct in lieu of interest.
22. It is also argued that the mortgage deed and the rent deed were separate transaction and Clause 3 of the mortgage deed is contradictory to the contention of the plaintiffs that the rent payable was in lieu of interest. The averments of the plaintiffs itself prove that the mortgage was a simple mortgage and the cause of action to redeem the mortgage had accrued on the date of mortgage itself and therefore the suit is Suit No. 93744/16 Page 10 of 27 Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.). barred by limitation.
23. On the other hand, Ld. counsel for the plaintiffs has argued that earlier, the defendant had instituted a suit bearing CS No. 439/95 against the plaintiffs for permanent injunction, which was dismissed vide judgment dated 25.11.1995 Ex. PW3/11. In the present suit, the defendant filed an application for rejection of plaint on the ground that the suit is barred by limitation, which was dismissed vide order dated 13.01.2003. The defendant filed Civil Revision No. 889/03 before Hon'ble High Court which was later withdrawn. The plaintiffs have proved notice dated 15.03.1986 served by Sh. Dinender Kumar Sharma, Advocate on behalf of the defendant to Sh. Daya Kishan, original mortgagor. The defendant has failed to show that the said notice was forged or manufactured. Further, the defendant personally did not enter into the witness box for no acceptable cause or reason. She examined her attorney whose testimony on the aspect of forgery of notice can not be accepted. The attorney has denied knowledge of many facts and his testimony is not reliable. The defendant has been appearing personally in the Court, but she deliberately did not enter the witness box, which raises presumption in favour of genuineness of notice Ex. PW5/1. The plaintiffs have proved that the rent / interest has been received by the defendant upto Holi festival of the year 1986. Thus, the period of limitation is extended as per Section 18 to 20 of the Limitation Act and the present suit is within period of limitation.
24. I have considered the submissions of the parties and perused the material on record.
Suit No. 93744/16 Page 11 of 27Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.).
25. The defendant has taken plea that the suit is barred by time as the mortgage deed was executed on 11.04.1961 and no time was fixed for redemption in the mortgage deed. Therefore, the right to redeem accrued on the date of mortgage. The period of limitation for redemption of mortgage is 30 years. Thus, the period of 30 years expired on 11.04.1991 and the suit filed on 18.07.1995 is barred by limitation. The plaintiff, on the other hand, has claimed that the mortgage in question is usufructuary mortgage and in case of usufructuary mortgage, the period of limitation does not begin to run till the mortgage amount is paid.
26. The stand taken by the parties at the stage of final arguments is contrary to their pleadings and the pleadings of the plaintiff are contrary to the terms and conditions of the mortgage deed and lease deed.
27. It is admitted case of parties that a registered mortgage deed dated 11.04.1961 was executed between Sh. Daya Kishan, father of the plaintiffs and Smt. Premi Devi / defendant herein. It is also admitted that rent note dated 12.04.1961 was also executed between them. It is also admitted that the defendant had filed a suit for permanent injunction against the plaintiffs which was dismissed.
28. The defendant has contended that the mortgage deed was a simple mortgage and thus, the period of limitation has begun to run from the date of mortgage deed. The plaintiffs, on the contrary, have claimed that the mortgage deed provided for an usufructuary mortgage.
29. Before proceeding further, it is necessary to mention the Suit No. 93744/16 Page 12 of 27 Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.). provisions of Transfer of Property Act which defines 'mortgage' and various types of mortgage. Section 58 of the Transfer of Property Act defines 'mortgage' and it also provides for various types of mortgage. It reads as under: "58. "Mortgage", "mortgagor", "mortgagee", "mortgage money" and "mortgaged" defined.
(a) A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgagemoney, and the instrument (if any) by which the transfer is effected is called a mortgagedeed.
(b) Simple mortgageWhere, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgagemoney, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.
(c) Mortgage by conditional saleWhere, the mortgagor ostensibly sells the mortgaged property on condition that on default of payment of the mortgagemoney on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale Suit No. 93744/16 Page 13 of 27 Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.).
and the mortgagee a mortgagee by conditional sale:
PROVIDED that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.
(d) Usufructuary mortgageWhere the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgagemoney, 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 mortgagemoney, or partly in lieu of interest or partly in payment of the mortgagemoney, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee.
(e) English mortgageWhere the mortgagor binds himself to repay the mortgagemoney on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will retransfer it to the mortgagor upon payment of the mortgagemoney as agreed, the transaction is called an English mortgage.
(f) Mortgage by deposit of titledeedsWhere a person in any of the following towns, namely, the towns of Calcutta, Madras, and Bombay, and in any other town which the State Government concerned may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title deeds.
(g) Anomalous mortgageA mortgage which is not a simple mortgage, a mortgage by conditional sale, a usufructuary mortgage, an English mortgage or a mortgage by deposit of titledeeds within the meaning of Suit No. 93744/16 Page 14 of 27 Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.).
this section is called an anomalous mortgage."
30. Section 60 of the Transfer of Property Act provides for redemption of simple mortgage. Section 62 of the Act provides for redemption of usufructuory mortgage. The provisions are reproduced herein :
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 mortgagemoney, to require the mortgagee 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, where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and 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.
62. Right of usufructuary mortgagor to recover possession - In the case of usufructuary mortgage, the mortgagor has a right to recover possession of the property together with the mortgagedeed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee,
(a) where the mortgagee is authorised to pay himself the mortgage money from the rents and profits of the property, when such money is paid;
(b) where the mortgagee is authorised to pay himself from such rents and profits or any part thereof a part Suit No. 93744/16 Page 15 of 27 Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.).
only of the mortgagemoney,when the term (if any) prescribed for the payment of the mortgagemoney has expired and the mortgagor pays or tenders to the mortgagee the mortgagemoney or the balance thereof or deposits it in Court hereinafter provided.
31. In the present case, whether the parties intended to enter into a simple mortgage or usufructuary mortgage or any other kind of mortgage is to be gathered from the terms of the mortgage deed. Therefore, this Court shall examine the terms / clauses of the mortgage deed and the rent deed to determine whether the mortgage in question was simple mortgage or usufructuary mortgage or any other kind of mortgage.
32. The title of the mortgage deed Ex. PW2/1 reads as "Deed of Mortgage with Possession". It starts with language "This mortgage deed with possession". Clause 2 of the mortgage deed reads as under: "The actual physical possession has been transferred to the mortgagee".
33. Clause 4 of the mortgage deed provided that no limitation is fixed by the parties for redemption of mortgaged property. The mortgagor shall be at liberty to get the property redeemed after making full payment in lumpsum to the mortgagee.
34. Clause 5 of the Deed of Mortgage provides that if any other construction would be made by the mortgagor on the above plot, that would be deemed mortgaged also.
35. The rent note dated 12.04.1961 was also executed between Sh.
Suit No. 93744/16 Page 16 of 27Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.). Daya Kishan, the father of the plaintiffs and defendant Smt. Premi Devi. The rent note is in Urdu. The translation of rent note has been filed by the defendant. The plaintiff has not exhibited any translation of the rent note. However, the plaintiffs have averred that words 'The land of this house' mentioned in second para of the translation filed by the defendant is not the correct translation. Be that as it may. The plaintiffs have not alleged that the remaining portion /sentences of the translation apart from the aforesaid words are also incorrect. Therefore, the remaining portion of the translation is deemed to be correct.
36. It is clear from the translation of the rent note dated 12.04.1961 that possession was transferred to the mortgagee under the mortgage deed. The relevant clauses of the rent note are reproduced herein : " The land of this house is mortgage with possession with Smt. Premi Devi D/o Shri Kanhaiya Lal Rehgar, resident of Gali No. 47/48, after giving her possession have registered the document before the SubRegistrar (Nazul) Delhi on 11.04.1961."
37. A careful reading of the clauses of the mortgage deed and the rent note makes it clear that the mortgage deed was for a mortgage with possession and the possession was initially transferred to the mortgagee / defendant Smt. Premi Devi. The clauses of the mortgage deed make it clear that the mortgage in question is not mortgage by conditional sale, English mortgage or mortgage by deposit of title deeds.
Suit No. 93744/16 Page 17 of 27Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.).
38. Now, this Court shall decide whether the mortgage in question is simple mortgage, usufructuary mortgage or anomalous mortgage.
39. The difference between simple mortgage and usurfurctuary mortgage is that in simple mortgage, the mortgagor without delivering possession of the mortgage property binds himself personally to pay the mortgage money. In simple mortgage, the mortgagee has a right to cause the mortgaged property to be sold and the proceeds of sale are to be applied in mortgage money. In case of usufructuary mortgage, the mortgagor delivers possession of the mortgaged property to the mortgagee and he authorizes the mortgagee to retain such possession until payment of mortgage money.
40. In the present case, in mortgage deed no right was given to the mortgagee / defendant to sell the property to recover the mortgage money. It has been agreed that no limitation is fixed for redemption and the mortgagor has been given liberty to get the property redeemed at any time after making full payment in lumpsum. The actual physical possession was also transferred to the mortgagee. In these circumstances, this Court has no hesitation in holding that the mortgage in question is usufructuary mortgage.
41. Ld. Counsel for the defendant has relied upon few judgments in support of the contention that the mortgage in question is a simple mortgage and not usufructuary mortgage. This Court has carefully gone through the judgments relied upon by the Ld. Counsel for the defendant. The judgments relied upon by the defendant are distinguishable on the facts of the case.
Suit No. 93744/16 Page 18 of 27Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.).
42. The judgment passed by the Hon'ble High Court in the matter of Laxman Vs. Board of Revenue, AIR 2008 Raj 109 is distinguishable and is not applicable to the case. In the said case, the petition was related to the provisions of Section 43 (2) of Rajasthan Tenancy Act, 1955 and the redemption was allowed on the basis of Section 43 (2) of the said Act. Similarly, the judgment passed by the Hon'ble High Court in the matter of Ram Dayal Vs. Bhanwar Lal, AIR 1973 Raj 173 is also distinguishable on the facts of the present case. In the said case, the mortgage deed and rent deed was executed on the same day and the possession was never transferred even for a single day to the mortgagee. The other judgments relied upon by the defendant are also distinguishable on the facts of the case.
43. The plaintiff has relied upon the judgment of Hon'ble Supreme Court of India passed in the matter of Singh Ram (dead through LRs) vs. Sheo Ram & ors. (2014) 9 SCC 185 in support of the contention that the suit of the plaintiff is within period of limitation.
44. Hon'ble Supreme Court of India in the matter of Singh Ram (dead through LRs) vs. Sheo Ram & ors. (2014) 9 SCC 185 has held that in usufructuary mortgage, right to seek redemption would accrue not from the date of creation of mortgage but from date of payment of mortgage money and until then, the limitation would not start under Article 61 of the Limitation Act. The relevant para of the judgment reads as under:
"12. xxx A perusal of above provisions shows that Article 61 Suit No. 93744/16 Page 19 of 27 Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.).
refers to right to redeem or recover possession. While right of mortgagor to redeem is dealt with under Section 60 of the T.P. Act, the right of usufructuary mortgagor to recover possession is specially dealt with under Section
62. Section 62 is applicable only to usufructuary mortgages and not to any other mortgage. The said right of usufructuary mortgagor though styled as 'right to recover possession' is for all purposes, right to redeem and to recover possession. Thus, while in case of any other mortgage, right to redeem is covered under Section 60, in case of usufructuary mortgage, right to recover possession is dealt with under Section 62 and commences on payment of mortgage money out of the usufructs or partly out of the usufructs and partly on payment or deposit by the mortgagor. This distinction in a usufructuary mortgage and any other mortgage is clearly borne out from provisions of Sections 58, 60 and 62 of the T.P. Act read with Article 61 of the Schedule to the Limitation Act. Usufructuary mortgage cannot be treated at par with any other mortgage, as doing so will defeat the scheme of Section 62 of the T.P. Act and the equity. This right of the usufructuary mortgagor is not only an equitable right, it has statutory recognition under Section 62 of the T.P. Act. There is no principle of law on which this right can be defeated. Any contrary view, which does not take into account the special right of usufructuary mortgagor under Section 62 of the T.P. Act, has to be held to be erroneous on this ground or has to be limited to a mortgage other than a usufructuary mortgage. Accordingly, we uphold the view taken by the Full Bench that in case of usufructuary mortgage, mere expiry of a period of 30 years from the date of creation of the mortgage does not extinguish the right of the mortgagor under Section 62 of the T.P. Act".Suit No. 93744/16 Page 20 of 27
Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.).
45. In the case in hand, the mortgage is an usufructuary mortgage. Thus, the period of limitation is to begin to run only from the date of payment of the mortgage money. As per the defendant, the plaintiffs or their father / mortgagor Sh. Daya Kishan had not made the payment of mortgage money till date. In these circumstances, it can not be said that the suit of the plaintiffs for redemption is barred by time.
46. In view of the discussion hereinabove, this Court holds that the defendant has failed to prove that the suit is barred by limitation. Accordingly, this issue is decided in favour of the plaintiffs and against the defendant.
47. ISSUE NO. 2 : Whether the plaintiff has cause of action to file the present suit ? OPP.
48. The onus to prove this issue was placed upon the plaintiffs.
49. In view of findings of this Court on issue No. 1, this Court holds that the plaintiffs had a cause of action to file the present suit. Accordingly, this issue is decided in favour of the plaintiffs and against the defendant.
50. ISSUE NO. 3 : Whether the plaintiffs continued in possession of the suit premises retaining their rights over the property mortgaged to the defendant or the plaintiffs were and are in possession of the mortgaged property as tenant ? OPP/ OPD.
51. The onus to prove this issue was placed upon the parties. Ld. Counsel for the defendant has argued that the possession of the property was transferred to the mortgagee under the mortgage deed Suit No. 93744/16 Page 21 of 27 Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.). and thereafter, the possession was again given back to the mortgagor under the rent note and it is proved on record that the plaintiffs are in possession of the property as tenant of the defendant.
52. Ld. Counsel for the plaintiff, on the other hand, has argued that Sh. Daya Kishan, the father of the plaintiffs retained his ownership rights under the mortgage deed.
53. I have considered the submissions of the parties and have perused the material on record.
54. It is admitted that the Deed of Mortgage was executed on 11.04.1961 and rent note was executed on 12.04.1961. It has been proved on record that as per the mortgage deed, the actual physical possession was transferred to the mortgagee. The documents i.e. Deed of Mortgage and Rent Note prove that after the mortgage, the property was given on rent to the mortgagor / father of the plaintiffs at monthly rent of Rs. 50/.
55. PW2 Sh. Chiranji Lal, brother of Sh. Daya Kishan, has also stated that he did not know if Sh. Daya Kishan was residing in mortgaged property as a tenant under mortgagee.
56. In the case in hand, the possession was delivered to the mortgagee under the mortgage deed. The mortgage deed also provided that the mortgagor would not be entitled to make sale of the property with any person before redemption of mortgage. After execution of mortgage deed, the mortgagee let out the property to the mortgagor as tenant under rent note dated 12.04.1961. The rent note also gave right to the mortgagee to get the property evicted in event of breach of terms Suit No. 93744/16 Page 22 of 27 Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.). and conditions by the mortgagor. Thus, it is clear from the record that the possession of Sh. Daya Kishan, mortgagor was as a tenant and his right to sell the property was also limited by the mortgage deed till redemption. The plaintiffs have stepped into the shoes of their father Sh. Daya Kishan. Thus, the possession of the plaintiffs in the mortgaged property is as tenant and not within their ownership rights. Accordingly, this issue is decided in favour of the defendant and against the plaintiffs.
57. ISSUE No. 4 : Whether the plaintiffs are entitled to the reliefs as prayed for ? OPP.
58. The onus to prove this issue was placed upon the plaintiffs. Ld. Counsel for the plaintiffs has argued that the suit has been filed within period of limitation and the plaintiffs are entitled to the reliefs claimed.
59. On the other hand, Ld. Counsel for the defendant has argued that PW3 has admitted that he was just five year old at the time of mortgage in the year 1961. In the affidavit also, PW3 has stated that the plaintiffs came to know that their father had mortgaged the property with the defendant for Rs. 5,000/ with interest @ Rs. 50/ per month in the year 1994. This assertion in effect, means that the plaintiffs were not aware of the mortgage since 1986 till 1994 and thus, PW3 cannot claim that interest has been paid upto 10.07.1994.
60. It is further argued that the plaintiffs have not filed any receipt of payment made to the defendant / authorized person to prove that any payment towards rent or interest has been made till date. As per the mortgage deed and rent agreement, no amount would be deemed to be Suit No. 93744/16 Page 23 of 27 Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.). paid unless proper written receipt is obtained. Therefore, the plaintiffs are not entitled to any relief.
61. I have considered the submissions of the parties and perused the material on record.
62. In para no. 4 of the plaint, the plaintiffs have averred that the defendant has been paid interest / rent from the date of mortgage till 10.07.1994. The plaintiffs have relied upon the notice dated 15.03.1986 Ex. PW5/1. Defendant has categorically denied that any such legal notice dated 15.03.1986 was sent to Sh. Daya Kishan / father of the plaintiff by the defendant. The burden thus lies upon the plaintiffs to prove that notice Ex. PW5/1 was received from the defendant.
63. The plaintiffs have examined Advocate Sh. Dinender Kumar Sharma as PW5 to prove the notice dated 15.03.1986. In the cross examination, PW5 Sh. Dinender Kumar Sharma has stated that he did not know the person on whose instructions he issued the notice Ex. PW5/1. He also did not ask for identification of the person who came to him to instruct him to give this notice. He was not maintaining any record of the notice sent by him as it was his initial period of practice. He has further stated that he did not have any record of any notice sent by him in the year 198687.
64. PW5 Sh. Dinendra Kumar is an Advocate. Apart from oral testimony, he has not produced any record to prove that he had sent notice Ex. PW5/1 on the instructions of the defendant. He has not produced any record of handing over AD / postal receipt to the Suit No. 93744/16 Page 24 of 27 Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.). defendant or husband of the defendant. He has not seen any identity of the person on whose behalf the notice was sent. In the absence of any documentary record, it is difficult to believe that the notice Ex. PW5/1 was sent on behalf of the defendant to Sh. Daya Kishan, the father of the plaintiffs.
65. The plaintiffs have claimed that the notice dated 15.03.1986 Ex. PW5/1 was found in a box in the year 1995.
66. In the evidence, plaintiff no. 2 /PW3 Sh. Surender Kumar has stated that his father got blind in the year 1972 and he used to maintain and look after the documents of his father including any correspondence after he became blind.
67. It is clear from the statement of PW3 Sh. Surender Kumar that after 1972, he was looking after the documents or any correspondence received by his father. The alleged notice Ex. PW5/1 was sent in March, 1986 and if alleged notice was sent by the defendant in March 1986, it should have also been looked after by the plaintiff No. 2 only as his father was blind at that time. The plaintiffs have only filed notice without any envelope. In the absence of any registered envelope in which notice was received, mere oral statement of PW3 or PW5 is not sufficient to prove that any such notice was sent by the defendant through PW5 Sh. Dinendra Kumar Sharma to Sh. Daya Kishan.
68. In these circumstances, this Court finds it difficult to believe that the alleged notice Ex. PW5/1 was sent in March 1986 by the defendant or that it was found by the plaintiffs in a box in the year 1995. Therefore, the notice Ex. PW5/1 cannot be considered in support of Suit No. 93744/16 Page 25 of 27 Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.). plea of the plaintiffs that the rent / interest till January, 1986 has been paid to the defendant.
69. The plaintiffs have not filed any receipt to show that any payment has been made by the plaintiffs or their father Sh. Daya Kishan at any point time against interest or rent.
70. Clause 9 of the Deed of Mortgage specifically laid down that during the period of mortgage, no amount would be deemed to be paid by the mortgagor to the mortgagee unless proper written receipt is obtained by the mortgagor from the mortgagee.
71. In the absence of any written receipt, no amount is deemed to be paid under the mortgage. The plaintiffs have not filed even a single receipt to prove payment of interest under the mortgage deed.
72. Now, this Court shall decide as to what amount is to be paid under the mortgage deed.
73. Generally, the amount to be paid for redemption is to be decided after taking into consideration all accounts of the parties. However, in the case, the terms of the mortgage deed are clear that no amount would be deemed to be paid unless proper receipt is obtained. The plaintiffs do not have any receipt to prove payment under the mortgage deed. Admittedly, the mortgage was for a sum of Rs. 5,000/ with interest @ 12 % per annum. The interest of mortgage amount comes to Rs. 600/ per year.
74. The plaintiffs / mortgagor are liable to pay interest from the date of mortgage i.e. 11.04.1961 till the date of judgment. Thus, as on date, the mortgagor / plaintiffs are liable to pay a sum of Rs. 5,000/ as Suit No. 93744/16 Page 26 of 27 Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.). mortgage amount and Rs. 33,800/ as interest on the mortgage amount. This issue is accordingly decided.
75. Relief.
76. In view of findings of this Court on aforesaid issues, the plaintiff are held entitled to decree of redemption on payment of Rs. 38,800/. Let preliminary decree under Order 34 Rule 7 CPC be drawn directing the mortgagor / plaintiffs to pay into the Court a sum of Rs. 38,800/ within one month from today.
Pronounced in the open court (NEHA)
on 20th July, 2017 Civil Judge09, Central
Tis Hazari Courts, Delhi
Suit No. 93744/16 Page 27 of 27
Rohtash Kumar & Ors. Vs. Premi Devi (since deceased through LRs.).