Back
2004 Supreme(Raj) 1196
Rajasthan High Court, Jaipur Bench
Honble A.C. GOYAL, J.
Shanti Devi - Appellant
Versus
Nand Lal - Respondents
S.B. Civil Second Appeal No. 260 of 2002
Decided On : December 13, 2004
S.R. Surana, for Appellant R.K. Agarwal, for Respondent
Headnote:Transfer of Property Act, 1882, Sec. 58, 59, 60; Urban Land (Ceiling and Regulation) Act, 1976, Sec. 27 – Redemption and possession of mortgaged property – House mortgaged with registered mortgaged-deed for Rs. 16,999/- for 7 years – Failed to repay the amount in prescribed period – Claimed to be absolute owner – No right to redeem – Decreed – First appeal dismissed – Held – The right of redemption is statutory and legal right which cannot be extinguished by any agreement made at the time of mortgage – Defendant failed to prove that right of redemption has come to an end – He never applied for decree for foreclosure – Under Art. 61 of the Limitation Act, the limitation is 30 years for redemption or for possession of immovable property mortgaged when the right to redeem or recover possession accrues to the mortgagor. (Paras 14 to 18)
Even otherwise according to Section 60 of the Act 1882, the right of redemption is a statutory and legal right which can not be extinguished by any agreement made at the time of mortgage. The defendant has failed to prove that the right of redemption has come to an end. He never applied for decree for foreclosure. Even otherwise. Article 61 of the Limitation Act provides a period of 30 years for redemption or for possession of immovable property mortgaged when the right to redeem or recover possession accrues to the mortgagor. Therefore, right to redeem this property was never extinguished in the instant case. (Para 15)
(2). The plaintiff filed a suit on 22.5.1984 for redemption and possession of mortgaged property with the averments that House No. 4784 situated in Jaipur as described in para 1 of the plaint was mortgaged with the defendant vide registered mortgage-deed dated 16.11.1978 only for Rs. 16,999/-, for a period of seven years. The value of this property at that time was Rs. 60,000/- and the plaintiff never sold this property to the defendant. The cause of action arose to the plaintiff on 29.12.1983 when the defendant represented that she had become absolute owner of this property. The plaintiff was and is still ready to pay the mortgage money and thus the plaintiff is entitled to a decree of redemption of the mortgaged property with possession of the same and the defendant should be restrained not to make any alteration in the said property.
(3). The defendant vide written statement submitted on 25.5.1985 pleaded that the registered mortgage-deed was executed in compliance of earlier agreement of conditional sale dated 19.4.1976 and it was agreed upon between the parties that the defendant would become absolute owner of this property after expiry of a period of seven years. Since the plaintiff did not pay the said amount of Rs. 16,999/- within a prescribed period of seven years, the defendant became the absolute owner of the same and now the plaintiff has no right to redeem. It was also pleaded that it was not necessary for her to obtain any decree of foreclosure against the plaintiff as the property was not mortgaged but sold to her by conditional sale. It was also pleaded that the plaintiff applied and obtained permission of the competent authority of Urban lands Department before execution of the registered document dated 16.11.1978. In the alternative it was pleaded that in case the transaction is treated to be mortgage the defendant is entitled to receive from the plaintiff an additional amount of Rs. 6,000/- spent by her on improvement of the property and a sum of Rs. 3000/- towards additional loan advanced by her to the plaintiff.
(4). Issue were framed. Evidence was recorded. Learned Additional Civil Judge (Junior Division) No.1, Jaipur City, Jaipur, vide judgment dated 20.8.1997, decreed the suit for redemption with a direction that the plaintiff shall pay the mortgage-money alongwith additional amount of Rs. 9,000/- within one month. First appeal preferred by the defendant was dismissed vide impugned judgment and decree as stated here-in-above.
(5). This Court framed following substantial question of law on 17.5.2002:
``1. Whether the learned courts below have misread, misinterpreted and overlooked the overwhelming documentary and oral evidence available on record which has rendered the impugned judgments and the findings of the courts below illegal,perverse and unsustainable?
2. Whether the learned counsel below have committed gave illegality in considering oral circumstantial evidence in preference to clear and unassailable documentary evidence proving the admission of the plaintiff indicating his intention with regard to the nature of document dated 19.4.1976 (Ex.A/2)?
3. Whether the learned courts below have in passing the impugned judgment and decree, ignored the principle of promissory estopple?
(6). I have heard learned counsel for the parties. All the three questions are co-related hence are taken up together. Ex.A 2 is the agreement dated 19.4.1976. After execution of Ex.A.2, the plaintiff applied for permission of the competent authority as provided by Section 27 of the Urban Land (ceiling and Regulation) Act, 1976 (for short the `Act 1976). Acco
