IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.271 of 2002 Date of decision : September 7, 2010 Tula Ram (dead) through LRs and another …Appellants. Versus Shanti (dead) through LRs …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellants : Mr. Bhupinder Gupta, Senior Advocate, with Mr. Neeraj Gupta and Ms Charu Gupta, Advocates. For the Respondent : Mr. K.D. Sood, Advocate. Surjit Singh, J (Oral) This Regular Second Appeal, by the plaintiffs, was admitted on the following substantial questions of law: 1. Whether the Lower Appellate Court has committed grave illegality in holding the suit to be bad for non-joinder of necessary parties, when the said objection was not taken in the written statement nor the same was subject matter of issue and decision rendered by the trial court? 2. Whether the Lower Appellate Court acted arbitrarily in an erroneous and perverse manner in declining the relief of injunction to the Plaintiff-Appellants which was granted by the Trial Court holding the Plaintiff-Appellants to be in exclusive possession, are not the findings recorded by the Lower Appellate Court erroneous and perverse, opposed to the admissions made by the Defendant-respondents in their evidence and pleadings? Whether reporters of the local papers may be allowed to see the judgment? …2… 3. Whether the Lower Appellate Court has acted in a highly illegal and erroneous manner in not deciding the material point as to whether the mortgage stood redeemed within the period of limitation or not? 4. Whether the judgment and decree of the Appellate Court stands vitiated on account of making out a totally new and different case for the Defendants-respondents which was beyond the pleadings and the evidence? Are not the findings of the Lower Appellate Court based on conjectures and surmises? 2. Facts relevant for the disposal of the appeal may be noticed. Plaintiffs-appellants, claiming themselves to be mortgagees with possession, filed a suit for declaration that they had become the owner of the mortgaged property (hereinafter referred to as suit property), on account of the defendants/mortgagees having not redeemed the mortgage, within the time limited by law, i.e. Article 61 of the Limitation Act. It was alleged that the mortgage had been created sometime prior to Sambat 2001, corresponding to the year 1944. 3. Suit was contested by the defendants- respondents, who admitted that mortgage had been created, but pleaded that the same stood redeemed in the year 1956 and that after redemption possession was with them. 4. Trial Court decreed the suit, holding that mortgage had been created more than 30 years, prior to the institution of the suit, and it had not been redeemed and, …3… therefore, the right of the defendants-respondents to redeem the mortgage stood extinguished. 5. Appeal was carried by the defendants to the Court of learned District Judge. It was assigned to learned Additional District Judge for disposal. Learned Additional District Judge accepted the appeal and dismissed the suit. Reasons given by the learned Additional District Judge, in support of his decision, are that no evidence, regarding creation of mortgage had been adduced and the plaintiffs were not the original mortgagees, but they had purchased mortgagees’ rights from the original mortgagees and said purchase, without the consent of the mortgagees, did not bind the latter. It was also held that sale of mortgagees’ rights in favour of the plaintiffs-appellants could not have been effected without the consent of the mortgagor (defendants) and also otherwise than by a registered document. Further, it was held that the suit was bad for non-joinder of the original mortgagees. 6. I have heard the learned counsel for the parties and gone through the record. 7. Evidence on record indicates that sale of mortgagees’ rights by the original mortgagees in favour of the predecessor of the present plaintiffs-appellants had taken place in Sambat 2000, corresponding to the year 1943. At that time, the area, in which the suit property is situated, was part of erstwhile State of Patiala, where the Transfer of …4… Property Act as also the Registration Act were not applicable. Therefore, no writing was required for sale of mortgagees’ rights, leave alone a registered writing. Also, when the mortgagees’ rights stood transferred to the appellants, there was hardly any need for impleading the original mortgagees as party to the suit, such mortgagees having washed their hands off the suit property and having ceased to have any concern with it. 8. Learned First Appellate Court was also not right in concluding that there was no mortgage, because defendants- respondents in their written statement admitted that a mortgage had been created in favour of the original mortgagees. In the face of this admission, there was hardly any need for the plaintiffs-appellants to have led any evidence regarding the creation of mortgage. 9. Finding by the learned first Appellate Court that the mortgage stood redeemed in the year 1956 is also not well founded, as there is no evidence, except the bald statement of one of the defendants, namely Shanti Devi, who appeared as DW-1, that mortgage had been redeemed in the year 1956. Had there been redemption of mortgage, as claimed by the defendants, entries in the revenue papers, showing the appellants-plaintiffs or their predecessor as mortgagee in possession, would not have continued upto the date of the institution of the suit. Finding by the trial Court that possession was with the defendants-respondents is also …5… contrary to the entries in the revenue record, copies whereof were tendered in evidence, in which possession is recorded to be with the plaintiffs and prior to them with their predecessor. 10. However, it is made out from the record that it was a case of usufructuary mortgage. Possession of the suit property, which was mortgaged as security for the loan, had been delivered to the mortgagees and the plaintiffs, after purchasing mortgagees’ rights, came in possession of the suit property. As the possession was with the mortgagees, the presumption is that the usufruct of the property was being appropriated by the mortgagees towards the interest on the mortgage money. There is no limitation for redemption of usufruct mortgage, especially such usufruct mortgage, which does not fix any period of mortgage and also does not stipulate that the usufruct of the mortgaged property, in full or part, is to be appropriated towards the principal debt or say the mortgage money. This is what has been held by a Division Bench of this Court in Jaimal and other versus State of H.P. and others, AIR 2010 HP 7; a Full Bench of Punjab and Haryana High Court in Ram Krishan and others versus Sheo Ram and others, AIR 2008 Punjab and Haryana 77; and the Hon’ble Supreme Court of India in Harbans versus Om Prakash and others, AIR 2006 SC 686. 11. From a reading of Section 62 of the Transfer of Property Act also, which is reproduced below, it appears that …6… the right to recover possession of the mortgaged property, in case of usufructuary mortgage, accrues to the mortgagor, when the mortgagor, in a situation like the present one, pays or tenders to the mortgagee the mortgage money or deposits the same in the Court. “62. Right of usufructuary mortgagor to recover possession.- In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee,- (a) where the mortgagee is authorized 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 only of the mortgage-money,-when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee the mortgage-money or the balance thereof or deposits it in Court as hereinafter provided.” 12. Limitation is thirty years for redemption of mortgage, per Article 61(a) of the Schedule to the Limitation Act, 1963. Limitation begins to run from the date when the right to redeem or to recover possession accrues. As noticed, hereinabove, right to recover possession accrues to a mortgagor in the case of usufructuary mortgage, where no part of usufruct is appropriated towards payment of mortgage debt, when he pays or tenders the mortgage …7… money to the mortgagor or deposits such money in the Court, per Article 61 of the Limitation Act. 13. Now, when the right to redeem the mortgage is still available to the defendants-respondents, plaintiffs- appellants cannot succeed in their plea that the mortgage stands foreclosed and they have become owner, on account of foreclosure of mortgage. 14. Learned counsel for the appellants submits that respondents-defendants did not take the plea that they still had the right to redeem the mortgage, but specifically stated that mortgage stood redeemed in 1956 and, therefore, it cannot be held that right to redeem the mortgage is still available to them (the defendants). Submission is without merit. It is the plaintiffs, who have claimed title to the suit property on the plea of foreclosure of mortgage, which means the mortgagor’s right to redeem mortgage has become barred by time. So, it was for them to have established this fact. Otherwise also, in the facts and the circumstances of the case, this is a question of law only, depending upon the interpretation of Section 62 of the Transfer of Property Act and Article 61 of the Limitation Act and law is not required to be pleaded. 15. In view of the abovestated position, substantial questions of law No.1, 3 and 4 are answered against the appellants. Substantial question of law No.2 is answered in their favour and it is also held that the right of redemption of …8… mortgage being still available to the defendants-respondents, plaintiffs-appellants have not acquired ownership of the suit property by foreclosure of mortgage. With these findings, appeal is partly accepted and judgments and decrees of the two Courts below are set aside and a decree for permanent prohibitory injunction only is passed in favour of the plaintiffs-appellants and against the defendants-respondents, restraining the defendants-respondents from interfering with the possession of the plaintiffs-appellants till the mortgage is redeemed. Appeal stands disposed of accordingly. September 7, 2010(sd) ( Surjit Singh ), J