IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2610 of 1982 (O&M) Date of decision: 13.12.2011 Shrimati Khushali widow of Bhagat Ram son of Khushi Ram, resident of Village Kolian, Tehsil Dasuya, District Hoshiarpur. ...Appellant versus Ranjit Singh (deceased) through his LRs and another ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: None. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. (Oral) 1. There is no representation for the appellant. This case has stood on for consideration for nearly 3 decades on a singular issue of a legal point emerging on the status of a mortgagee in possession after 30 years of the date of execution of the mortgage. I have proceeded to dispose of the case on merits, having regard to the situation that the case only addresses a legal issue that could be disposed of even in the absence of the appellant or the respondents. Even otherwise, there is simply no justification for the absence of either of the counsel and, therefore, I have decided the case on merits. Regular Second Appeal No.2610 of 1982 (O&M) - 2 - 2. The defendant, who was the owner of the property is the appellant before this Court. The plaintiffs filed a suit for a declaration that they had become owners of the property by lapse of time, having regard to the fact that the property mortgaged in their favour had continued with them for more than 30 years. The mortgage is said to have been effected by the defendants' forefathers and since they had not redeemed the mortgage, it was contended that the right to redeem had been lost. The defendants have filed a written statement contending that the property had already been taken back possession from the plaintiffs after paying the amounts borrowed as a consideration towards the mortgage. The defendants' contention was that the property had stood redeemed on 29.05.1967 within the period of limitation. The trial Court held that the payment said to have been made was through an unregistered receipt and, therefore, could not be relied on. The Court also held that since the mortgage had not been redeemed within 30 years, the plaintiffs were entitled to a declaration as sought for. The trial Court found that the plaintiffs had become owners by a lapse of time in respect of the properties in the Village Kolian, Tehsil Dasuya, District Hoshiarpur as per the jamabandi for the year 1976-77 and with reference to the property contained in Ex.P-1. The suit with reference to the remaining extent had been dismissed. The appeals had been filed against this judgment, both by the defendant and the plaintiff. The defendant's appeal in Civil Appeal No.106 and the plaintiff's appeal Regular Second Appeal No.2610 of 1982 (O&M) - 3 - in Civil Appeal No.251 of 1981 had been disposed of together by a common judgment. The appellate Court held that the reliance on unregistered for discharge of mortgage was rightly rejected as being inadmissible under Section 17 of the Registration Act and held that the trial Court's decree granting a declaration that the plaintiffs had become the owner of the property by the failure of the defendant to redeem the mortgage had to be sustained. 3. The mortgagee's entitlement to the property as full owner on the failure of the mortgagors to redeem the mortgage within 30 years from the date of mortgage is a proposition wrongly held, in my view, by the trial Court and the appellate Court. While the Courts below were justified in reasoning that an unregistered receipt could not be relied on as an instrument discharging the mortgage, in violation of Section 17 of the Registration Act, was however wrong in holding that the mortgagee would become the owner of the property by the failure of the mortgagor to redeem the property within 30 years from the date of the execution of the mortgage. This issue has been considered by this Court in Ram Kumar and others Versus Mohinder and others in RSA No.2628 of 1982, decided on 08.11.2011. The suit for a declaration in the manner sought for was erroneous, irrespective of whether or not the mortgagor was contending the mortgage debt to be discharged by the payment of the amount and evidenced through an unregistered receipt. The plaintiff is not entitled to obtain the Regular Second Appeal No.2610 of 1982 (O&M) - 4 - declaration as sought for. The judgment of the trial Court and the appellate Court are set aside and the appeal is allowed with costs throughout. (K. KANNAN) JUDGE 13.12.2011 sanjeev