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PANKAJ JAIN, J. (ORAL) --

CM-9359-C-2024

1. Application is for impleading the L.Rs. of deceased-Balwant Kaur/respondent No.1 and deceased-Ajaib Singh/respondent No.2.

2. For the reasons as are mentioned in the application, the same is allowed, subject to all just exceptions.

3. LRs, details of whom, are mentioned in paragraph Nos.2 & 4 of the application, are impleaded as L.Rs. of deceased-Balwant Kaur/respondent No.1 and deceased-Ajaib Singh/respondent No.2 for the purpose of the instant appeal only.

4. Amended memo of parties is taken on record.

RSA-722-2017 (O&M)

1. Plaintiffs are in appeal.

2. For convenience, parties hereinafter are referred to by their  original position(s) as in  the Civil Suit, i.e. appellants as ‘plaintiffs’ and  respondents as ‘defendants’.

3. Plaintiffs filed a suit seeking decree of declaration  to the effect that they are mortgagees  in possession of the suit land  admeasuring  47 kanals 18 marlas as detailed  out in  the head-note of the plaint and  sought decree of permanent injunction,  restraining defendants from  interfering in their possession. 

4. As per plaintiffs, the suit land was owned and possessed by one Gurbax Singh, son of Nihal Singh.   He mortgaged the same with possession  for  a  sum  of Rs.7,000/-  with  plaintiff  No.1  and his brother Ajit  Singh vide registered mortgage deed dated 10.05.1961.  Actual physical possession of the land was delivered to the mortgagees. One of the mortgagees, namely Ajit Singh, died.  He is survived by his widow Gurdip Kaur-plaintiff No.2.  Thus, plaintiffs are in continuous possession of the land.  After mortgage deed, the mortgagees were arrested in criminal case.  They remained imprisoned.   The mutation on the basis of mortgage deed could not be sanctioned.  After death of Gurbax Singh, his estate devolved upon defendants.  Mutation was sanctioned in favour of plaintiffs on 26.03.1987.  The defendants filed appeal before the Collector, the same was dismissed vide order dated 06.11.1987.   Defendants are now threatening to dispossess the plaintiffs.  The plaintiffs accordingly instituted the present suit seeking decree of declaration with the further relief of permanent injunction.

5.  Defendants contested the suit, denying execution of mortgage deed by Gurbax Singh.  Defendants claimed to be in cultivating possession of the suit land.  They claimed that revision filed against the sanction of mutation was allowed by the Commissioner, Jalandhar.  Order was upheld by the Financial Commissioner (Revenue), Chandigarh, which has attained finality between the parties. Defendants filed counter-claim, challenging the legality and validity of mortgage deed dated 10.05.1961 and claimed decree of redemption on payment of mortgage money of ? 7,000/-.  The defendants also claimed that postponing the right of redemption for 99 years amounts to a clog on the right of redemption and thus the mortgage deed is void and illegal to the said effect.

6. Both the Courts below concurrently found that the mortgage deed dated 10.05.1961 was executed by Gurbax Singh in favour of the plaintiffs, who are in possession of the suit land. Both the Courts below accordingly decreed the suit filed by the plaintiffs.  However, while allowing the counter-claim, the Courts found that the defendants are entitled to decree of redemption of the suit land on repayment of mortgage money of ?7,000/-.  The Trial Court held plaintiffs entitled to 12% interest on the mortgage money. The same was modified by the Lower Appellate Court, holding the mortgagees entitled only to ? 7,000/- without any interest.

7. Having heard counsel for the parties, this Court is of the opinion that right to redeem cannot be postponed.  Mortgager has right to redeem mortgaged property and such right shall accrue on the date the term postponing the redemption is read down as clog on redemption.  The issue in dispute would be squarely covered by the following ratio of law laid down by Supreme Court in the case of ‘Sangar Gagu Dhula versus Shah Laxmiben Tejshi’, 2001(4) RCR (Civil) 536:

“37. In the light of the aforesaid discussion, I find that the contentions raised by learned Counsel for the mortgagee are not well founded and cannot be sustained. In view of the aforesaid discussion, I find and hold that "the right to redeem or to recover possession" would accrue to the mortgagor within the meaning of Article 61(a) of the Limitation Act only when the Court lifts the clog on the equity of redemption. Consequently, limitation would begin to run only from that day, and therefore, necessarily such a suit could not be said to be barred by limitation (provided the suit prays both for lifting the clog against the equity of redemption and also prays for a decree of redemption of the mortgage).”

8. The issue regarding limitation in the case of usufructuary mortgage also stands settled in ‘Singh Ram (D) through LRs versus Sheo Ram and others’, 2014(9) SCC 185, wherein Supreme Court observed as under:-

“15. We, thus, hold that special right of usufructuary mortgagor under Section 62 of the T.P. Act to recover possession commences in the manner specified therein, i.e., when mortgage money is paid out of rents and profits or partly out of rents and profits and partly by payment or deposit by mortgagor. Until then, limitation does not start for purposes of Article 61 of the Schedule to the Limitation Act. A usufructuary mortgagee is not entitled to file a suit for declaration that he had become an owner merely on the expiry of 30 years from the date of the mortgage. We answer the question accordingly.”

9. In view of the above, this Court finds no merit in the present regular second appeal.  The same is ordered to be dismissed.

10. All pending miscellaneous application(s), if any, stands disposed off.

Appeal Dismissed.

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