Mitta Singh Etc vs Shamsher Kaur on 26 February, 2024

Punjab-Haryana High Court

Mitta Singh Etc vs Shamsher Kaur on 26 February, 2024

Author: Alka Sarin

Bench: Alka Sarin

                        RSA No.963 of 1995                   1                   2024:PHHC:025596

                         IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                        201                                         RSA No.963 of 1995
                                                                    Reserved on : 16.02.2024
                                                                    Date of Decision : 26.02.2024


                        Mitta Singh and Others                                         ....Appellants

                                                         VERSUS

                        Shamesher Kaur (deceased) and Others                        ....Respondents


                        CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                        Present :   Mr. Gurcharan Dass, Advocate for the appellants.

                                    Mr. Aakash Singla, Advocate for respondent No.1.

                        ALKA SARIN, J.

1. The present regular second appeal has been preferred by the

defendant-appellants against the concurrent findings returned by both the

Courts.

2. The suit filed by the plaintiff-respondent No.1 for declaration

and possession was decreed by the Trial Court vide judgment and decree

dated 01.12.1988. Aggrieved by the same an appeal was preferred by the

defendant-appellants which appeal was also dismissed vide judgment and

decree dated 27.03.1995. Hence, the present regular second appeal.

3. Learned counsel for the defendant-appellants would contend

that the mortgage deed was executed on 20.02.2002 BK (Ex.P2) by Biro

widow of Mukand Singh for an amount of Rs.1,300/- and that during her

lifetime she did not get the suit land redeemed and hence the limitation for

getting the mortgage redeemed stands elapsed. It is further the contention

JITENDER KUMAR
2024.02.26 14:07
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Chandigarh
RSA No.963 of 1995 2 2024:PHHC:025596

that Biro had died on 30.01.1973 and even before her death the limitation to

get the suit land redeemed stood elapsed.

4. Per contra learned counsel for the plaintiff-respondent No.1 has

relied upon a judgment of the Full Bench of this Court in the case of Ram

Kishan & Ors. vs. Sheo Ram & Ors. [2008(1) RCR (Civil) 334] wherein

it was held that in case of a usufructuary mortgage, where there is no time

limit fixed for redemption, the mortgagor has a right to redeem at any time

on payment of the mortgage debt and the period of 30 years’ limitation

under the Limitation Act, 1963 would not be applicable. Further reliance has

been placed upon a judgment of the Hon’ble Supreme Court in the case of

Singh Ram vs. Sheo Ram [(2014) 9 SCC 185].

5. I have heard learned counsel for the parties.

6. In the present case the only ground on which the suit was

contested by the defendant-appellants was that the redemption was barred by

limitation. Briefly, the facts relevant to the present case are that Biro widow

of Mukand Singh, the original owner of the suit land, had mortgaged the

same through a registered mortgage deed dated 20.02.2002 BK (Ex.P2) in

favour of Dalip Singh son of Basant Singh to the extent of ½ share and

Hardial Singh and Nek Singh sons of Mehar Singh to the extent of ½ share.

Mortgage amount was fixed as Rs.1,300/-. The plaintiff-respondent No.1,

claiming herself to be the sole heir of Biro, filed an application for

redemption which was dismissed on 19.03.1985 by the Sub Divisional

Magistrate, Sunam. Hence, the suit challenging the dismissal of the

redemption application. The defendant-appellants filed their written

statement alleging therein that the suit was not within limitation and also

challenged the locus-standi of the plaintiff-respondent No.1 to file the suit.

JITENDER KUMAR
2024.02.26 14:07
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Chandigarh
RSA No.963 of 1995 3 2024:PHHC:025596

The mortgage by Biro was not disputed. A counter-claim was also filed

setting up the claim that the defendant-appellants have become owners in

possession of the suit land and that they have been in possession as

mortgagees for more than 30 years. Replication was filed. On the basis of

the pleadings of the parties the following issues were framed :

1. Whether Smt. Shamsher Kaur is the owner of the

property in dispute being the legal heir of Smt. Biro

deceased ? OPP

2. Whether the plaintiff being the legal heir of Smt.

Biro is competent to get the suit property redeemed on

payment of mortgage amount ? OPP

3. Whether the order dated 19.03.1985 of A.C. Ist

Grade, Sunam, is null and void ? OPD

4. Whether the suit is within limitation ? OPP

4-A Whether the right to redeem has extinguished and

the defendants have become the owners of the suit land

? OPD

5. Whether the plaintiff has no locus standi and cause

of action to file the present suit ? OPD

6. Whether the suit is not maintainable in the present

form ? OPD

7. Whether the suit is bad for non-joinder of

necessary parties ? OPD

8. Whether the suit has not been properly valued for

the purposes of court-fee and jurisdiction ? OPD

9. Relief.

JITENDER KUMAR

2024.02.26 14:07
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integrity of this order/judgment
Chandigarh
RSA No.963 of 1995 4 2024:PHHC:025596

7. The Trial Court vide judgment and decree dated 01.12.1988

held the suit to be within time on the ground that Biro had been declared

insane and on 24.11.2002 (Ex.P11) Court of Ward was appointed with

respect to the property of Biro on the ground that she had become insane.

Admittedly, Biro died on 30.01.1973. Holding that the limitation would be

30 years from the death of Biro, the suit was held to be within limitation.

The order dated 19.03.1985 passed by the A.C. Ist Grade, Sunam was held

to be illegal and void. The appeal preferred by the defendant-appellants

against the judgement and decree of the Trial Court was dismissed by the

First Appellate Court vide judgment and decree dated 27.03.1995. Hence,

the present appeal.

8. A Full Bench of this Court in the case of Ram Kishan (supra)

has held as under :

“42. The limitation of 30 years under Article 61(a)

beings to run “when the right to redeem or the

possession accrues”. The right to redemption or recover

possession accrues to the mortgagor on payment of sum

secured in case of usufructuary mortgage, where rents

and profits are to be set off against interest on the

mortgage debt, on payment or tender to the mortgagee,

the mortgage money or balance thereof or deposit in the

court. The right to seek foreclosure is co-extensive with

the right to seek redemption. Since right to seek

redemption accrues only on payment of the mortgage

money or the balance thereof after adjustment of rents

and profits from the interest thereof, therefore, right of
JITENDER KUMAR
2024.02.26 14:07
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Chandigarh
RSA No.963 of 1995 5 2024:PHHC:025596

foreclosure will not accrue to the mortgagee till such

time the mortgagee remains in possession of the

mortgaged security and is appropriating usufruct of the

mortgaged land towards the interest on the mortgaged

debt. Thus, the period of redemption or possession

would not start till such time usufruct of the land and the

profits are being adjusted towards interest on the

mortgage amount. In view of the said interpretation, the

principle that once a mortgage, always a mortgage and,

therefore always redeemable would be applicable.

43. 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

for foreclosure. It is 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
JITENDER KUMAR
2024.02.26 14:07
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Chandigarh
RSA No.963 of 1995 6 2024:PHHC:025596

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).

44. 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.”

9. In the present case the only ground of challenge was that the

redemption had become barred by limitation. The said question stands

answered by the Full Bench of this Court in the case wherein it has been

held that in case of a 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. It was further held that once a mortgage always a mortgage and is

always redeemable.

10. In view of the law laid down by this Court in the case of Ram

Kishan (supra), I do not find any merit in the present appeal. No question of
JITENDER KUMAR
2024.02.26 14:07
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RSA No.963 of 1995 7 2024:PHHC:025596

law, much less any substantial question of law, arises for determination in

the present case. The present appeal, which is wholly devoid of any merit, is

accordingly dismissed. Pending applications, if any, also stand disposed off.

( ALKA SARIN )
26.02.2024 JUDGE
jk

NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO

JITENDER KUMAR
2024.02.26 14:07
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integrity of this order/judgment
Chandigarh