Punjab-Haryana High Court
Gurbachan Singh Etc vs Bhagat Singh on 29 October, 2014
Author: Rajive Bhalla
Bench: Rajive Bhalla
RSA-800-1988 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-800-1988
Date of decision: 29.10.2014
Gurbachan Singh and others ..... Appellants
VERSUS
Bhagat Singh @ Bhagat Ram ..... Respondent
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
Present: Ms.Harveen Kaur, Advocate, for the appellants.
Mr.N.S.Rapri, Advocate, for the respondent.
*******
RAJIVE BHALLA, J. (ORAL)
The appellants challenge judgments and decrees dated 08.05.1987 and 12.11.1987, passed by the Additional Senior Sub Judge, Hoshiarpur, and the District Judge, Hoshiarpur, respectively, decreeing the suit filed by the respondent/plaintiff and dismissing the appeal filed by the appellants/defendants.
The respondent/plaintiff filed a suit for declaration that he has become owner of land measuring 32 kanals and 7 marlas (as detailed in the plaint), situated in village Mukhalian, Tehsil and District Hoshiarpur. The respondent/plaintiff pleaded that Niranjan Singh predecessor-in-interest of defendants/appellants had executed a registered mortgage deed dated 08.04.1946 after receiving Rs.6300/- with respect to 31 kanals and 1 marla, situated in Chak No.179, Tehsil and District Sheikhupura in West Pakistan. The RSA-800-1988 [2] mortgage deed was recorded in Mutation No.134, dated 19.05.1947. After partition of the country, the land, in dispute, was allotted to Naranjan Singh in lieu of land left behind in Pakistan and to the respondent/plaintiff as mortgagee. The appellants/defendants having failed to redeem the mortgage during the last 30 years, they have lost their right to redeem the mortgage. The respondent/plaintiff may, therefore, be declared owner in possession of the disputed land to the extent of 20 kanals and 7 marlas. It would be appropriate to point out that out of 31 kanals and 1 marla originally allotted, after partition of the country, 12 kanals was withdrawn by the rehabilitation department from Naranjan Singh. The appellants/defendants put in appearance, filed a written statement, denying averments in the plaint, the execution of mortgage deed and that the respondent/plaintiff has become owner for failure to redeem the mortgage.
After considering the pleadings, the trial Court framed the following issues: -
"1. Whether the plaintiff has become owner of the suit land by eflux of time? OPP
2. Whether the suit is barred in view of the plea taken by the defendants in preliminary objection No.1? OPD
3. Whether the suit is not maintainable in the present form? OPD
4. Whether the plaintiff has no locus-standi to file this suit? OPD
5. Relief."
RSA-800-1988 [3] The trial Court, thereafter called upon the parties to lead evidence. After considering the pleadings and the evidence on record, the trial Court affirmed the creation of a mortgage in Pakistan and then went on to hold that as the appellants/defendants have failed to redeem any part of the mortgaged land within 30 years, the respondent/plaintiff has become owner by efflux of time. A relevant extract from the judgment, passed by the trial Court, reads as follows:-
"7...... Since the defendants have not been able to redeem the part of the suit land measuring 20 Kanals 7 marla as referred to in sub-para (a) and (c) in the heading of the plaint within the statutory period of 30 years, I hold that the plaintiff has become owner of the suit land. This issue is decided against defendants.
Aggrieved by the above judgment, the appellants/defendants filed an appeal which was dismissed by the District Judge, Hoshiarpur, by upholding the execution of the mortgage deed and also holding that as the period for redemption of mortgage has expired, the respondent/plaintiff has become owner of the land, in dispute.
Counsel for the appellants submits that Courts below have erred in decreeing the suit and declaring the respondent owner for failure of the appellants to redeem the mortgaged property. A Full Bench of this Court has while considering the period for redemption of a usufructuary mortgage, held in "Ram Kishan and others Vs.Sheo RSA-800-1988 [4] Ram and others", 2008(1) Civil Court Cases 414 (P&H) (F.B.), that there is no limitation for redeeming a usufructuary mortgage. The opinion recorded by the Full Bench has been affirmed by the Hon'ble Supreme Court in "Singh Ram (D) through LRs Vs. Sheo Ram and others", JT 2014 (9) SC 404. The judgments and decrees passed by Courts below which are contrary to the ratio of these precedents may be set aside.
Counsel for the respondent submits that as the appellants failed to redeem the mortgage within 30 years, as required by Article 61 of the Limitation Act, judgments and decrees passed by the Courts below holding that the appellants have lost their right to redeem the property and as a consequence the respondent has acquired the rights of ownership, are legal and valid and may be affirmed.
I have heard counsel for the parties, perused the impugned judgments and decrees and appraised the record.
The substantial question of law that arises for adjudication is the period of limitation prescribed for redeeming a usufructuary mortgage and whether failure to redeem a usufructuary mortgage within 30 years of its creation entitles a mortgagee to a declaration of his ownership.
The question, so framed, is no longer res-integra as it has been answered by the Hon'ble Supreme Court while affirming a Full Bench judgment of this Court. A relevant extract from the judgment RSA-800-1988 [5] of the Hon'ble Supreme Court in Singh Ram's case (supra) reads as follows: -
"12.1. A perusal of above provisions shows that Article 61 refers to right to redeem or recover possession. While right of mortgagor to redeem is dealt with under Section 60 of the 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."
"[7.] The right of redemption, therefore, cannot be taken away. The courts will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage. One thing, therefore, is clearly, namely, that the term in the mortgage contract, that on the failure of the mortgagor to redeem the mortgage within the specified period of six months the mortgagor will have no claim over the mortgaged property, and the mortgage deed will be deemed to be a deed of sale in favour of the mortgagee, cannot be sustained. It plainly takes away altogether, the mortgagor's right to redeem the mortgage after the specified period. This is not permissible, for 'once a mortgage always a mortgage' and therefore always redeemable.
RSA-800-1988 [6] The same result also follows from Section 60 of the Transfer of Property Act. So it was said in Mohd. Sher Khan V. Seth Swami Dayal [AIR 1922 PC 17]: 'An anomalous mortgage enabling a mortgagee after a lapse of time and in the absence of redemption to enter and take the rents in satisfaction of the interest would be perfectly valid if it did not also hinder an existing right to redeem. But it is this that the present mortgage undoubtedly purports to effect. It is expressly stated to be for five years, and after that period the principal money became payable. This, under Section 60 of the Transfer of Property Act, is the event on which the mortgagor had a right on payment of the mortgage money to redeem."
"15. We, thus, hold that special right of usufructuary mortgagor under Section 62 of the T.P.Act to recover possession commences in the manner specified therein, i.e., when mortgage money is paid out of rents and profits or partly out of rents and profits and partly by payment or deposit by mortgagor. Until then, limitation does not start for purposes of Article 61 of the schedule to the Limitation Act. A usufructuary mortgagee is not entitled to file a suit for declaration that he had become an owner merely on the expiry of 30 years from the date of the mortgage. We answer the question accordingly.
16. On this conclusion, the view taken by the Punjab and Haryana High Court will stand affirmed and contrary view taken by the Himachal Pradesh High Court in Bhandaru Ram (D) Thr. L.R. Ratan Lal v. Sukh Ram (supra) will stand over-
ruled."
A perusal of the opinion recorded by the Hon'ble Supreme Court in Singh Ram's case (supra) affirming a Full Bench judgment of this Court in Ram Kishan's case (supra), reveals that a mortgagor does not loose his right to redeem a mortgage on the expiry of thirty years. As a consequence, a mortgagee cannot assert or be granted a declaration of ownership upon the expiry of the period of thirty years. The question of law is answered in favour of the appellants and against the respondents.
Both the trial Court and the first appellate Court have RSA-800-1988 [7] held that as a period of thirty years has expired from the date of creation of the mortgage, the respondent has become owner by efflux of time. The findings so recorded and the judgments and decrees so passed are contrary to the declaration of law set out by a Full Bench of this Court in Ram Kishan's case (supra) and by the Hon'ble Supreme Court in Singh Ram's case (supra). As a consequence, the appeal is allowed, judgments and decrees passed by the Courts below are set aside and the suit is dismissed, but with no order as to costs.
29.10.2014 [ RAJIVE BHALLA ]
Shamsher S.Sabharwal JUDGE
SHAMSHER SINGH
2014.11.12 14:39
I attest to the accuracy and
authenticity of this document
Chandigarh