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2008 DIGILAW 1561 (PNJ)

Jaswinder Kaur v. Labh Singb

2008-09-11

RAJIVE BHALLA

body2008
JUDGMENT Rajive Bhalla, J. (Oral).:- The appellant challenges the judgments and decrees dated 25.08.1982 and 29.10.1983, passed by Additional Senior Sub Judge, Rupnagar, and Additional District Judge, Rupnagar, dated, decreeing the suit filed by the respondents and dismissing the appeal filed by the appellant. 2. On 24.04.1931, one Sardara Singh mortgaged with possession, 2/3rd share out of land measuring 15 Kanals 4 Marlas for a sum of Rs.650/-­ in favour of one Dati Sahai. After partition of the country, Sardara Singh was allotted the suit land in lieu of land left behind in Pakistan vide sale deed dated 02.11.1961 Ex.P-2/A, the mortgagee sold his rights in favour of Labh Singh, Mohinder Singh and Chanan Singh. Jaswinder Kaur, the appellant herein purchased the suit land, vide registered sale deed dated 24.05.1979, Ex.D.2. Jaswinder Kaur, allegedly redeemed 1/3rd share of the mortgaged property from Chanan Singh and thereafter applied to the Assistant Collector 1st Grade, Rupnagar for redemption of the balance mortgaged property. On 01.09.1980, the Assistant Collector allowed the application for redemption. 3. Labh Singh and Mohinder Singh, mortgagees filed a suit for declaration to the effect that the order of redemption was illegal and void as the mortgage was not redeemed within the period of limitation prescribed under the Indian Limitation Act and as a result they had become owners of the suit property. Jaswinder Kaur contested the suit by asserting that the equity of redemption continued to subsist and, therefore, the order of redemption passed by the Assistant Collector was legal and valid. 4. The learned trial Court, after an appraisal of the pleadings, the evidence adduced and the arguments addressed, decreed the suit by holding that as the period of limitation for redemption had expired on 30.12.1970, the application for redemption was wrongly allowed by the Collector. It was, however, held that as Dati Sahai was the original mortgagee, with respect to 2/3rd share, his legal heirs would be owners of the suit land. 5. Aggrieved by the trial Court’s judgment and decree, both parties filed separate appeals. Vide judgment and decree dated 29.10.1983, the Additional District Judge, Rupnagar dismissed the appeal filed by Jaswinder Kaur, but accepted the appeal filed by Labh Singh and Mohinder Singh and held them to be owners of the suit land, as limitation for redemption had expired by efflux of time. 6. Vide judgment and decree dated 29.10.1983, the Additional District Judge, Rupnagar dismissed the appeal filed by Jaswinder Kaur, but accepted the appeal filed by Labh Singh and Mohinder Singh and held them to be owners of the suit land, as limitation for redemption had expired by efflux of time. 6. Counsel for the appellant submits that the learned courts below have erroneously held that the application for redemption allowed by the Collector was barred by time. It is submitted that a Full Bench of this Court has held in Ram Kishan and others v. Sheo Ram and others, [2008(1) LAW HERALD (P&H) (FB) 46] : 2008(1) P.L.R. 1, that 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, the judgments and decrees passed by the courts below be set aside. It is, urged that in view of the above judgment, 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 mortgage property had expired? 7. Counsel for the respondents, on the other hand, asserts that though he does not dispute the correctness of the law enunciated by the Full Bench, the onus to establish the nature of the mortgage lies upon the appellant. The Full Bench judgment relates to a usufructuary mortgage, whereas the pleadings and the evidence on record do not disclose the nature of the mortgage. It is, therefore, argued that the appellant cannot urge the existence of a usufructuary mortgage and consequently, the applicability of the Full Bench judgment. It is further argued that during the pendency of this appeal, the appellant has sold the suit property to Gurcharan Singh. The sale deed contains a recital that the appellant is in possession of the land and has delivered possession to the vendor. It is further argued that during the pendency of this appeal, the appellant has sold the suit property to Gurcharan Singh. The sale deed contains a recital that the appellant is in possession of the land and has delivered possession to the vendor. It is, therefore, sought to be argued that as the appellant claims that she is in possession and her stand that the respondents are mortgagees under a usufructuary mortgage stands negated by the recitals in the sale deed. 8. I have heard counsel for the parties; perused the judgments and also the records. 9. It is not disputed that Sardara Singh mortgaged the suit land, with possession on 24.04.1931. The application for redemption, admittedly filed more than 30 years after the execution of the mortgage, was allowed by the Collector on 01.09.1980. The respondents/mortgagees challenged the order of redemption by way of a civil suit. The trial Court held that as limitation for filing an application for redemption had expired, the Collector had no jurisdiction to direct redemption of the mortgaged property. The first appellate court affirmed these findings. 10. The question that requires adjudication is the nature of the mortgage and the period of limitation that governs an application for redemption of a usufructuary mortgage. The period of limitation that governs the filing of an application for redemption of a usufructuary mortgage came up for consideration before a Full bench in Ram Kishan and others v. Sheo Ram and others (supra) before the Full Bench were:­ The questions posed 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 usufructuary mortgage or to get his property redeemed? 11. After considering the above questions in detail, the Full Bench concluded as follows: ­ “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 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.” 12. Thus, it is held that once a mortgage always a mortgage and is always redeemable.” 12. It is, therefore, apparent that in case of a usufructuary mortgage, where no time limit is fixed for redemption, the right to seek redemption would accrue from the date the mortgagor pays or tenders to the mortgagee or deposit in the court, the mortgage money or the balance thereof and not from the date of the mortgage. As the questions of law, framed by counsel for the appellant have already been answered by the Full Bench, in favour of the appellant and against the respondents, the controversy in the present appeal is squarely covered by the ratio of the Full Bench judgment and is answered accordingly. 13. Applying the ratio of the Full Bench judgment to the present case and as admitted by counsel for the parties, the mortgage does not assign a date or period for redemption. The cause of action, therefore, to file a suit/application for redemption of the mortgaged property has not accrued/expired and the courts below resultantly fell into error, while holding that limitation for redeeming the mortgage had expired. It would, therefore have to be held that the application for redemption filed before the Collector was not barred by limitation and the order passed by the Collector, directing redemption of the mortgaged property, was legal and valid. It would necessarily follow that the respondents have not become owners of the suit land by expiry of the period of limitation. 14. A submission made by counsel for the respondents that the appellant has failed to establish the nature of the mortgage and cannot, therefore, draw any benefit from Full Bench judgment, merits rejection. A perusal of the pleadings and the evidence on record and the nature of the mortgage clearly disclose that the respondents have themselves asserted their status as mortgagees in possession for a sum of Rs.433.33 paise, in essence admitting the character a usufructuary mortgage. In fact, at no stage of the proceedings, did the mortgagees ever assert that the mortgage that came into, existence on 24.04.1931 was not a usufructuary mortgage. The recitals in the sale deed are irrelevant as the respondents do not admit that they have been dispossessed. In fact, at no stage of the proceedings, did the mortgagees ever assert that the mortgage that came into, existence on 24.04.1931 was not a usufructuary mortgage. The recitals in the sale deed are irrelevant as the respondents do not admit that they have been dispossessed. In view of what has been stated herein above and more particularly in view of the Full Bench judgment referred to herein above, the appeal is allowed and 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. -----------------------