22.09.2025 Malkiat Kaur and Others v. CORAM : HON' BL E M RS. JUSTI CE AL K A SARI N
Case Details
112 I N THE HI GH COURT OF PUNJA B AND HARYANA AT CH ANDI GA RH RSA-5871-2019 (O& M ) Reser ved on : 16.09.2025 Pr onounced on : 22.09.2025 Malkiat Kaur and Others ... Appellants Mukhtiar Kaur and Others ... Respondents Versus CORAM : HON' BL E M RS. JUSTI CE AL K A SARI N Present : Mr. Nakul Sharma, Advocate for the appellants. AL K A SARI N, J. 1. The present appeal has been preferred by the plaintiff-appellants challenging the concurrent findings returned by the Trial vide judgment and decree dated 02.08.2017 and by the First Appellate Court vide judgment and decree dated 15.07.2019. 2. The brief facts relevant to the present lis are that the plaintiff- appellants herein filed a suit for declaration. It was averred in the plaint that the plaintiff-appellants are mortgagees and that the mortgagors had failed to redeem the land for the last more than 30 years and now the right of redemption stood extinguished on account of lapse of time and the plaintiff- appellants were entitled to be declared as owners of the said land. It was further averred that the defendant-respondents had succeeded in getting the sanction of inheritance vide mutation Nos.10571 and 10572 in their favour which was totally illegal and liable to be quashed as they were not related to the original owners. It was further the case that the defendant-respondents JITENDER KUMAR 2025.09.22 11:06 I attest to the accuracy and authenticity of this document Chandigarh RSA-5871-2019 -2- were not legally competent to get the land redeemed as they were not the legal heirs of the original owner. 3.
Facts
On notice the defendant-respondents appeared and filed their written statement raising various preliminary objections and stated that the plaintiff-appellants have no right to retain the possession of the suit property and that the defendant-respondents were willing to get the property redeemed however the plaintiff-appellants refused and that the redemption proceedings were pending in the Court of Sub Divisional Magistrate, Dharamkot, District Moga. 4. Replication was not filed. On the basis of pleadings of the parties, the following issues were framed : 1. Whether the plaintiff is entitled to get the relief of declaration, as prayed for ? OPP 2. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for ? OPP 3. Whether the suit of the plaintiff is not maintainable in the present form ? OPD 4. Whether the plaintiff is estopped to file the present suit ? OPD 5. Whether plaintiff has no cause of action to file the present suit ? OPD 6. Whether the plaintiff has no locus standi to file the present suit ? OPD 7. Whether the plaintiff has not come to the Court with clean hands ? OPD 8. Relief. JITENDER KUMAR 2025.09.22 11:06 I attest to the accuracy and authenticity of this document Chandigarh RSA-5871-2019 -3- 5. The Trial Court vide judgment and decree dated 02.08.2017 dismissed the suit. Aggrieved by the same an appeal was preferred by the plaintiff-appellants which appeal was also dismissed vide judgment and decree dated 15.07.2019. Hence, the present regular second appeal. 6. The sole argument raised by learned counsel for the plaintiff- appellants is that the defendant-respondents have lost their right to redeem the mortgaged property as the property could only be redeemed within a period of 30 years and in the present case the mortgage was originally executed on 11.09.1986, 18.02.1988 and 03.08.1999. 7. 8. Heard. In the present case it was admitted by the parties that an application for redemption had been filed before the Revenue Court at Dharamkot. The plaintiff-appellants are seeking a declaration that they have become owner in possession of the suit land by prescription of time since the same has not been redeemed by the original mortgagors. The Full Bench of
Legal Reasoning
this Court in the case of Ram Kishan & Ors. vs. Sheo Ram & Ors. [2008 (1) RCR (Civil) 334] has held as under : “ 40. The limitation of 30 years under Article 61(a) begins 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 JITENDER KUMAR 2025.09.22 11:06 I attest to the accuracy and authenticity of this document Chandigarh RSA-5871-2019 -4- on payment of the mortgage money or the balance thereof after adjustment of rents and profits from the interest thereof, therefore, right of 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. 41. 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 JITENDER KUMAR 2025.09.22 11:06 I attest to the accuracy and authenticity of this document Chandigarh RSA-5871-2019 -5- Bench in Seth Ganga Dhar's case (supra) as well as judgments of Hon'ble Supreme Court 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). 42. 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. 43. Having answered the questions of law framed, we do not find any merit in the present appeal filed by the mortgagees to seek declaration in respect of their title.
Decision
The appeal is dismissed.” 10. The said judgment of the Full Bench of this Court was affirmed by the Supreme Court in the case of Singh Ram (D) through LRs Vs. Sheo Ram & Ors [AIR 2014 SC 3447] wherein it has been held as under : “ 12. It will be appropriate to refer to the statutory provisions of the Transfer of Property Act and the Limitation Act : “ T.P. Act JITENDER KUMAR 2025.09.22 11:06 I attest to the accuracy and authenticity of this document Chandigarh RSA-5871-2019 -6- 58. ‘ Mortgage’ , ‘ mortgagor’ , ‘ mortgagee’ , ‘ mortgage- money’ and ‘ mortgaged’ defined. (a) A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed. (b) Simple mortgage - Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee. (c) Mortgage by conditional sale - Where, the mortgagor ostensibly sells the mortgaged property - on condition that on default of payment of the mortgage- money on a certain date the sale shall become absolute, or JITENDER KUMAR 2025.09.22 11:06 I attest to the accuracy and authenticity of this document Chandigarh RSA-5871-2019 -7- on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale: PROVIDED that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale. (d) Usufructuary mortgage - Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee. (e) English mortgage - Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re- transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an JITENDER KUMAR 2025.09.22 11:06 I attest to the accuracy and authenticity of this document Chandigarh RSA-5871-2019 -8- English mortgage. (f) Mortgage by deposit of title-deeds - Where a person in any of the following towns, namely, the towns of Calcutta, Madras, and Bombay, and in any other town which the State Government concerned may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds. (g) Anomalous mortgage - A mortgage which is not a simple mortgage, a mortgage by conditional sale, a usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage. 60. Right of mortgagor to redeem At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver to the mortgagor the mortgage- deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and JITENDER KUMAR 2025.09.22 11:06 I attest to the accuracy and authenticity of this document Chandigarh RSA-5871-2019 -9- (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this section has not been extinguished by the act of the parties or by decree of a court. xxx 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 authorised 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 hereinafter provided. xxx Limitation Act : JITENDER KUMAR 2025.09.22 11:06 I attest to the accuracy and authenticity of this document Chandigarh RSA-5871-2019 -10- Article 61 By a mortgagor a) To redeem or recover possession of immovable property mortgaged b) xxx (emphasis supplied) Thirty years When the right to redeem or to recover possession accrues xxx xxx A perusal of above provisions shows that Article 61 refers to right to redeem or recover possession. While right of mortgagor to redeem is dealt with under section 60 of the Transfer of Property Act, the right of usufructuary mortgagor to recover possession is specially dealt with under Section 62. Section 62 is applicable only to usufructuary mortgages and not to any other mortgage. The said right of usufructuary mortgagor though styled as right to recover possession' is for all purposes, right to redeem and to recover possession. Thus, while in case of any other mortgage, right to redeem is covered under Section 60, in case of usufructuary mortgage, right to recover possession is dealt with under Section 62 and commences on payment of mortgage money out of the usufructs or partly out of the usufructs and partly on payment or deposit by the mortgagor. This distinction in a usufructuary mortgage and any other mortgage is clearly borne out from provisions of sections 58, 60 and 62 of the Transfer of Property Act read with Article 61 of the Schedule to the Limitation Act. Usufructuary mortgage cannot be treated at par with any other JITENDER KUMAR 2025.09.22 11:06 I attest to the accuracy and authenticity of this document Chandigarh RSA-5871-2019 -11- mortgage, as doing so will defeat the scheme of section 62 of the Transfer of Property Act and the equity. This right of the usufructuary mortgagor is not only an equitable right, it has statutory recognition under section 62 of the Transfer of Property Act. There is no principle of law on which this right can be defeated. Any contrary view, which does not take into account the special right of usufructuary mortgagor under section 62 of the Transfer of Property Act, has to be held to be erroneous on this ground or has to be limited to a mortgage other than a usufructuary mortgage. Accordingly, we uphold the view taken by the Full Bench that in case of usufructuary mortgage, mere expiry of a period of 30 years from the date of creation of the mortgage does not extinguish the right of the mortgagor under section 62 of the Transfer of Property Act. xxx 15. We, thus, hold that special right of usufructuary mortgagor under section 62 of the Transfer of Property 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 JITENDER KUMAR 2025.09.22 11:06 I attest to the accuracy and authenticity of this document Chandigarh RSA-5871-2019 -12- the date of the mortgage. We answer the question accordingly.” 11. The above reproduced extracts from the judgments in the cases of Ram Kishan (supra) and Singh Ram (D) through LRs (supra) clearly reveal that the suit filed by the plaintiff-appellants was not maintainable. It is trite that once a mortgage always a mortgage and there would be no period for redemption for the same. 12. In view of the law laid down in the above referred judgments, the present suit, which was for foreclosure itself, was not maintainable. Hence, no fault can be found with the judgments and decrees passed by both the Courts. 13. In view of the above, no question of law, much less any substantial question of law which requires determination, arises in the present case. The appeal, being devoid of any merits, is accordingly dismissed. Pending applications, if any, also stand disposed off. 22.09.2025 jk ( ALKA SARIN ) JUDGE NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO JITENDER KUMAR 2025.09.22 11:06 I attest to the accuracy and authenticity of this document Chandigarh