Allowed

(O&M) Munni and Ors. v. Parkash and Ors.

Punjab & Haryana HC1 Jul 2015RSA/2210/1987

Case brief

AI extract

What is this about?

This regular second appeal holds that a usufructuary mortgagor's right to redeem does not extinguish merely upon expiry of a statutory period. The mortgagee cannot claim ownership without payment. The first appellate court's decree declaring ownership after 45 years is set aside.

What did the court decide?

Suit for declaration dismissed; first appellate decree set aside; appellants at liberty to seek redemption.

(O&M) Munni and Ors. Vs Parkash and Ors. — Property and Title | Punjab & Haryana HC (2015)

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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Regular Second Appeal No.2210 of 1987 (O&M) Date of Decision: July 01, 2015

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Munni @ Anita and others

.....Appellants

versus

Smt.Bimla and others

.....Respondents

CORAM: HON'BLE MR.JUSTICE SURYA KANT.

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Present: Mr.Jitender Nara, Advocate, for the appellants. Mr.Sudhir Rana, Advocate, for respondent No.1.

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-.-

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Whether Reporters of Local papers may be allowed to see the judgment?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Surya Kant, J. (Oral)

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This regular second appeal is directed against the judgment and decree dated 06.05.1987 whereby the first Appellate Court has allowed the plaintiff's appeal and after setting-aside the judgment and decree of the trial Court, decreed the suit for declaration to the effect that the respondent-plaintiff alongwith proforma-defendants are owners in possession of the land in dispute because the right of the appellants to get the suit land redeemed had “extinguished”.

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[2] The facts may be noticed briefly.

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[3] Predecessor-in-interest of the appellants, namely, Mange was owner of land measuring 15 kanal 8 marlas situated within the revenue estate of village Kalwas, district Bhiwani. Mange mortgaged his land in favour of Binja who

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MOHINDER KUMAR 2015.07.07 16:17 I attest to the accuracy and authenticity of this document Chandigarh

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[2]

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RSA No.2210 of 1987 (O&M)

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happened to be maternal-grand-father of defendant Nos.8 to 13. Binja-mortgagee further mortgaged this land with possession in favour of Sheo Chand-father of the plaintiffrespondent and proforma defendant Nos.14 & 15, for a sum of Rs.45/- on 03.05.1937. Mutation No.318 dated 08.06.1937 was sanctioned to this effect.

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[4] The plaintiff alongwith proforma-defendant Nos.14 & 15 filed the suit claiming that they are the mortgagees with possession of the suit land and since the mortgagor-Mange or his successors-in-interest, namely, defendant Nos.1 to 4 (appellants) did not get the suit land redeemed for the last 45 years and the limitation period to get the land redeemed having expired that they were entitled to be declared owners in possession of the suit land.

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[5] The appellants contested the suit and took the plea that the suit land had already been redeemed by Nathu son of Binja, in the year 1981 and mutation to this effect was rightly sanctioned. They also relied upon the Haryana Relief of Agricultural Indebtedness Act, 1976 to claim that the mortgage debt be declared to have been discharged under the provisions of that Act.

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[6] On the pleadings of the parties, following issues were formulated:-

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(1) Whether the land in dispute has been continuously under mortgage with possession with the ancestors of the plaintiff and the plaintiff for the last 45 years? OPP.

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(2) Whether the suit land has been redeemed and whether the possession of the suit land is with the defendants? OPD

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[3]

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RSA No.2210 of 1987 (O&M)

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(3) Whether the report rojnamcha No.282 dated 30.4.1981 showing the redemption of the suit land and the deliver of possession is fictitious, illegal, based on fraud and collusion and is liable to be set-aside? OPP

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(4) Whether mutation No.823 dated 2.5.1981 is illegal, void, not binding on the rights of the plaintiff and the proforma defendants and is liable to be set-aside on the grounds alleged in the plaint? OPP.

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(5) Whether mutation No.824 dated 2.5.1981 is illegal, void, not binding on the rights of the plaintiff and the proforma defendants and is liable to be set-aside? OPP.

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(6) Whether the plaintiff and the proforma defendants had become full owners of the land in dispute before the filing of this suit? OPP.

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(7) Whether the right, title and interest of the plaintiff and the proforma-defendants in the suit land have been extinguished by virtue of the provisions of the Haryana Relief of Agricultural Indebtedness Act, 1976, as alleged? OPD.

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(8) Whether the suit is bad for non-joinder and mis-joinder of parties? OPD

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(9) Whether the suit is not maintainable in the present form? OPD

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(10) Whether the plaintiff is estopped by his acts and conduct to file the present suit? OPD

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RSA No.2210 of 1987 (O&M)

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[4]

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(11) Whether the plaintiff has no cause of action against the defendants? OPD

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(12) Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD

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(13) Whether the suit is time barred? OPD

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(14) Whether all the LRs of the deceased Mange have not been impleaded in the suit? If so, to what effect? OPD

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(15) Whether the defendants are entitled to special costs u/s 35-A? If so, how much? OPD

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(16) Relief.”

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[7] The Trial Court though dismissed the suit but on appeal by the respondent-plaintiffs, the First Appellate Court held that (i) the land was never got redeemed by Nathu son of Binja as he had already died in the year 1942 and (ii) that land was mortgaged with possession on 08.06.1937 and after the expiry of statutory period, the plaintiff and proformadefendant Nos.14 & 15 have become its owners in possession as right of mortgagor to redeem the same stood extinguished .

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[8] I have heard learned counsel for the parties and gone through the record.

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[9] The substantial question of law that arises for consideration in this appeal is whether there is any time limit for usufructuary mortgagor to seek redemption or whether on expiry of 45 years period, the right for redemption of such a mortgage stands extinguished?

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[10] The above-stated question of law is no longer res integra. It has been firstly answered in favour of the appellantmortgagor by a Full Bench of this Court in Ram Kishan and

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MOHINDER KUMAR 2015.07.07 16:17 I attest to the accuracy and authenticity of this document Chandigarh

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[5]

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RSA No.2210 of 1987 (O&M)

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others versus Sheo Ram and others, 2008 (1) RCR (Civil) 334 holding that in case of usufructuary mortgage where no time limit is prescribed to seek redemption, right to seek redemption does 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.

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[11] The view taken by the Full Bench has been approved by the Hon'ble Supreme Court in Singh Ram (D) through LRs versus Sheo Ram and others, 2014 (9) SCC 185. The Apex Court has ruled as follows:-

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“..... 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 rent 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..........”

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[12] In the light of the above-cited authoritative pronouncement, the view taken by the First Appellate Court that the time limit to seek redemption has expired or that the mortgagor's right to seek such redemption got extinguished, cannot sustain. The same has to be set-aside and is ordered

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[6]

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RSA No.2210 of 1987 (O&M)

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accordingly.

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[13] The question, however, as to whether the mortgage in question was got redeemed by Nathu son of Binja, is essentially a question of fact which has been answered against the appellants on appreciation of the evidence holding that Nathu had in fact died much before the alleged date of redemption.

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[14] In the light of the above discussion, the instant appeal is allowed; the judgment and decree passed by the First Appellate Court is set-aside and the suit for declaration filed by the respondent-plaintiff to the effect that he alongwith proforma defendant Nos.14 & 15 have become owners in possession of the mortgaged land, is hereby dismissed. It is further held that the suit land has not been redeemed so far. The appellants shall be at liberty to seek redemption in accordance with law.

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MOHINDER KUMAR 2015.07.07 16:17 I attest to the accuracy and authenticity of this document Chandigarh

(O&M) Munni and Ors. v. Parkash and Ors.

Case brief

What is this about?

What did the court decide?

(O&M) Munni and Ors. v. Parkash and Ors.

Case brief

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