IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1371 of 1980 Date of Decision: 18.11.2008 Gurbax Singh .... Appellant vs. Pat Ram and others .... Respondents Coram: Hon'ble Mr. Justice Rajive Bhalla. Present: Mr. Arun Jain Sr. Advocate with Mr. Chetan Slathia, Advocate for the appellant. Mr. Gautam Hooda, Advocate for respondent No.1. Rajive Bhalla, J, (Oral) The appellant challenges the judgment and decree dated 29.02.1980, passed by the Additional District Judge, Sirsa partly reversing the judgment and decree dated 25.07.1977, passed by the Sub Judge Ist Class, Sirsa. Narain son of Ramji, the original plaintiff, now represented by his legal representatives, filed a suit, praying that as the mortgagor had failed to redeem the mortgaged property within limitation, he had become owner by efflux of time. It was also prayed that the order passed by the Collector, dated 16.09.1975, directing redemption of the mortgaged property be declared illegal and void. The respondents opposed the suit and though they admitted the mortgage, they denied that the period of limitation for redeeming the mortgage had expired and asserted that as the appellant had purchased mortgagee rights by mutation No.338 dated 21.06.1954, he had, in essence, acknowledged the mortgage and therefore, the application for redemption was within time. On the basis of the pleadings the learned trial court framed the following issues:- RSA No.1371 of 1980 -2- 1. Whether the plaintiff has become the owner of the suit land by lapse of time and foreclosure as alleged? OPP. 2. whether the order of collector dated 16.09.1975 is wrong, against law as such the same is liable to be set aside? OPP. 3. Relief. The trial court after an appraisal of the pleadings, the evidence adduced and the arguments addressed held that as the mortgage created in the year 1928 was not redeemed, within thirty years, the equity of redemption stood extinguished and as a result the Collector had no jurisdiction to order redemption of the mortgaged property. The suit filed by the appellant was, therefore, decreed by holding that he had become owner in possession of the suit land. Aggrieved by the aforementioned judgment and decree respondent No.1, filed an appeal. The first appellate court held that though the mortgage had come into existence on 15.06.1928 failure to redeem the mortgaged property, would not confer the status of an owner, upon the appellant. Despite these findings the first appellate court proceeded to hold that the Collector had no jurisdiction to direct redemption of the mortgaged property, as limitation for filing an application for redemption had expired. The appeal was, therefore, partly allowed. Counsel for the appellant submits that the findings recorded by the first appellate court are a contradiction in terms. Once it is held that the period of limitation for redeeming a mortgage has expired, the appellant would as a natural consequence, become owner in possession of the suit land. It is submitted that limitation for redemption of a usufructuary mortgage commences from the date of mortgage. The mortgage in the instant case came into existence on 15.06.1928, as reflected in mutation RSA No.1371 of 1980 -3- No.60 sanctioned on 20.01.1929. Admittedly it was not redeemed within thirty years and therefore, the equity of redemption stood extinguished by efflux of time. The first appellate court, therefore, had no jurisdiction to reject the appellant's claim that he had become owner of the mortgaged property. Counsel for the respondent No.1, on the other hand, submits that where the mortgage does not prescribe a period for redemption, 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 mortgage. It is submitted that the dispute with respect to the period of limitation that governs the filing of an application for redemption has been answered by a Full Bench of this Court in Ram Kishan and others vs. Sheo Ram and others, 2008(1) PLR 1 against the appellant and therefore, the appeal be dismissed. I have heard counsel for the parties and perused the impugned judgments as also the judgment in Ram Kishan and others vs. Sheo Ram and others (supra) referred to hereinabove. As facts that have led to the filing of the present appeal have been narrated hereinbefore, they do not merit repetition. The question of law framed by counsel for the appellant as reflected in the grounds accompanying the memorandum of appeal is as under:- “Whether on the expiry of limitation for redemption of mortgage the right of the defendant/respondent was extinguished with the effect of making the plaintiff/appellant owner of the land in dispute?” Answer to this question would require consideration of the period of limitation that governs the filing of an application for redemption of a usufructuary mortgage. This question came up for consideration before RSA No.1371 of 1980 -4- a Full Bench in Ram Kishan and others vs. Sheo Ram and others (supra) and after considering the controversy in detail it was held as follows :- 33.The argument that after the expiry of period of limitation to sue for foreclosure, the mortgagees have a right to seek declaration in respect of their title over the suit property is not correct. From the aforesaid discussion, it is apparent that the mortgage cannot be extinguished by any unilateral act of the mortgagee. Since the mortgage cannot be unilaterally terminated, therefore, the declaration claimed is nothing but a suit from foreclosure. It equally well settled that it is not title of the suit, which determines the nature of the suit. The nature of the suit is required to be determined by reading all the averments in the plaint. Such declaration cannot be claimed by an usufructuary mortgagee. 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 case (supra) and Sampuran Singh's case (supra). 34.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 RSA No.1371 of 1980 -5- will arise on the date when the mortgagor pay 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 the question of law framed in the present appeal has already been answered by holding that in case of a usufructuary mortgage, where no time limit is fixed to seek redemption, the right to seek redemption would arise on the date when 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 mortgage and therefore as the period for redemption has not expired the right to seek redemption has not expired and the appellants have not become owners of the mortgaged property. The judgment and decree passed by the first appellate court would, therefore, have to be modified by holding that as the mortgage subsists, the order passed by the Collector directing the redemption of the mortgaged property is legal and valid. With the above modification in the judgment and decree passed by the first appellate court, the appeal is disposed of accordingly. No orders as to costs. 18.11.2008 (Rajive Bhalla) sk Judge