R.S.A.No.4230 of 2005(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.4230 of 2005(O&M) Date of Decision: 24.10.2008 Smt. Urmila & others ...Appellants Versus Sohan Lal & others ...Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA. Present:- Mr. Rakesh Nehra, Advocate, for the appellants. Mr. Amit Jain, Advocate, for the respondents. RAJIVE BHALLA, J(Oral) The defendants-appellants challenge the judgments and decrees dated 29.08.2002 and 28.02.2005, passed by the Civil Judge (Junior Division), Palwal and the Additional District Judge, Faridabad, decreeing the suit filed by the respondents and dismissing the appeal filed by the appellants. The plaintiffs-respondents filed a suit for declaration alleging that one Budha son of Khaira, who was co-sharer/co-owner in possession of the suit land, mortgaged the suit land on 23.06.1965 for a sum of Rs.3000/- as reflected in mutation No.5370 dated 26.08.1965. Mangli- respondent No.13, the adopted son of Budha, inherited the land after the demise of Budha and sold a part of it to Mahavir Singh and Jai Singh predecessor of the defendants-appellants No. 1 to 3 and respondents No. 3 to 12 respectively. After purchase of the said land Mahavir Singh and Jai Singh connived with the Patwari to get a false report No.353 on R.S.A.No.4230 of 2005(O&M) -2- 24.04.1992, entered in the Rapat Roznamcha that the mortgagee has received the mortgage amount and relinquished possession of the suit land. It is asserted that the revenue entry is false and as the statutory period for redemption i.e. 30 years having expired without redemption, the plaintiffs-respondents have become owners in possession. The defendants/appellants denied the averments in the plaint, reiterated the correctness of the revenue record and denied that the plaintiffs have become owners in possession. On the basis of the pleadings, the trial court framed the following issues:- 1. Whether the plaintiffs are mortgagees in possession of the suit land and have become its owners due to lapse of period of redemption? OPP 2. Whether report No.353 dated 24.04.1992 in rapat roznamcha vakyati showing that suit land has been redeemed, is false, fictitious and illegal?OPP 3. Whether the suit of the plaintiffs is not maintainable in the present form?OPD 4. Whether the plaintiffs are estopped from filing the present suit by their own acts and conduct ?OPD 5. Whether the plaintiffs have no cause of action to file the present suit? OPD 6. Whether the suit is bad for non-joinder and mis-joinder of parties ?OPD 7. Whether defendant no.4 was dead before filing of the present suit, if so to what effect ?OPD 8. Relief. R.S.A.No.4230 of 2005(O&M) -3- After considering the controversy in its entirety, the trial Court held that as the mortgage was not redeemed, within the prescribed period of limitation, the respondents have become owners in possession, by efflux of time. Aggrieved by the said judgment and decree, the appellants filed an appeal. The first appellate court dismissed the appeal. Counsel for the appellants submits, that the courts below have erred while holding that the respondents have become owners as the mortgage was not redeemed within the prescribed period of limitation. It is submitted that a Full Bench of this Court has held in Ram Kishan and others v. Sheo Ram and others 2008(1) P.L.R. 1, that the period of limitation for redeeming a usufructuary mortgage commences from the date the mortgagor pays or tenders to the mortgagee or deposits in Court, the mortgage money or the balance thereof and not from the date of the mortgage. It is, therefore, submitted that as the trial court and the first appellate court have held to the contrary, these judgments and decrees be set aside. It is, urged that the following substantial questions of law arise for consideration in the present appeal:- (i) Whether the period of limitation for redeeming a usufructuary mortgage commences from the date of mortgage? (ii)Whether the learned courts below were right in holding that the equity of redemption stood extinguished by expiry of the period of limitation? (iii)whether the respondents have become owners of the suit land as limitation for redeeming the mortgaged property had expired? Counsel for the respondents, on the other hand, asserts that the Full Bench judgment does not apply to the present case as the appellants allege that they have redeemed the mortgage. It is submitted that as the R.S.A.No.4230 of 2005(O&M) -4- impugned judgments do not suffer from any error, whether of fact or of law, the appeal be dismissed I have heard counsel for the parties, perused the judgments and also the records. The trial court and the first appellate court have held that the limitation for redeeming a mortgage would commences from the date of the mortgage and as the period for redemption has expired without the appellants filing an application for redemption, the respondents have become owners by efflux of time. As accepted by counsel for the parties, Budha deceased mortgaged the suit land by way of a usufructuary mortgage on 23.06.1965. It is also accepted that the mortgage does not prescribe a period for redemption. Admittedly the question that arises for adjudication came up for consideration before a Full Bench in Ram Kishan and others v. Sheo Ram and others, 2008(1) The Punjab Law Reporter 1. The questions posed before the Full Bench were:- 1. Whether the right to seek redemption would arise on the date of mortgage itself in case of usufructuary mortgage when no time limit is fixed to seek redemption? 2. Whether there is any time limit in the case of a usufructuary mortgage to get his property redeemed? After considering the provisions of Transfer of Property Act, the Limitation Act and various relevant judgments, it was held as follows:- “Thus, we prefer to follow the dictum of law laid down by the larger Bench in Seth Ganga Dhar’s case(supra) as well as judgments of Hon’ble Supreme Court in Jayasingh Dnyanu Mhoprekar's case (supra), Pomal Kanji Govindji’s case (supra), Panchanan Sharma’s case (supra) and Harbans’s case (supra) in preference to the judgments relied upon by the mortgagees in Prabhakaran’s R.S.A.No.4230 of 2005(O&M) -5- case (supra) and Sampuran Singh’s case (supra). Therefore, we answer the questions framed to hold that in case of usufructuary mortgage, where no time limit is fixed to seek redemption, the right to seek redemption would not arise on the date of mortgage but will arise on the date when the mortgagor pays or tenders to the mortgagee or deposits in Court, the mortgage money or the balance thereof. Thus, it is held that once a mortgage always a mortgage and is always redeemable.” It is, therefore, apparent that where the mortgage does not prescribe a period for redemption, the right to seek redemption would accrue on the date the mortgagor pays or tenders to the mortgagee or deposits in Court, the mortgage money or the balance thereof and not from the date of the mortgage. The questions of law framed are, therefore, answered in terms of the Full Bench judgment, by holding that as the usufructuary mortgage created by Budha son of Khaira, admittedly does not prescribe a period for redemption, the equity of redemption subsists. As a result the respondents have not become owners of the suit land. The learned courts below by holding to the contrary committed error of law that render their judgments erroneous. In view of the binding opinion of the Full Bench, the appeal is allowed, the judgments and decrees passed by the courts below are set aside and the suit filed by the respondents is dismissed with no order as to costs. October 24, 2008 (RAJIVE BHALLA) nt JUDGE