Usufructuary Mortgage--Right to redemption exist at all times but before confirmation of sale. Even second suit for redemption has been found to be maintainable.
Usufructuary Mortgage--The right of redemption by act of parties can be extinguished by independent contract subsequent to the mortgage and not by an unilateral act on the part of the mortgagee under the mortgage.
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.

HEMANT GUPTA, J.

1. The appellant, a mortgagee, filed a suit for declaration to the effect that they have become owners of the agricultural land measuring 13 Kanals 6 Marias by prescription. The case set up was that one Ami Chand son of Devi Singh mortgaged with possession agricultural land measuring 14 Bighas for a sum of Rs. 80/-with Hardhan Singh son of Jit Ram on 11-8-1903. During consolidation operations, the land measuring 13 Kanals 6 Marias was allotted in lieu of the original mortgaged land. The plaintiff claims to be in continuous possession of the suit land as mortgagees, whereas Munshi Ram, predecessor-in-interest of defendants was recorded as mortgagor. The mortgagees sought the declarartion on the ground that the suit land has not been got redeemed during the period of more than 60 years and, therefore, the defendants have lost all right, title and interest in it. Though the defendant denied the factum of mortgage, but the trial Court returned a finding that it was a case of usufructuary mortgage arid no period for payment of mortgage amount was fixed. It was observed that it is not the case of the plaintiff that they had made a demand for mortgage amount, which was refused by the defendant. Thus, no cause of action had accrued to the plaintiff which could only accrue on demand of the mortgage amount from the defendants and refusal of the same by the defendants. The trial Court, thus, dismissed the suit holding that the plaintiffs have not become owners of the suit land.

2. The appeal against the judgment and decree passed by the learned trial Court was also dismissed and hence, the mortgagees are in second appeal claiming declaration in respect of their ownership over the suit property.

3. Initially this appeal was admitted to D.B. in view of the important questions of law likely to arise in many cases. Later, in Regular Second Appeal No. 893 of 2006, the mortgagee, who was in appeal, raised an argument that in case of usufructuary mortgage, where no time-limit is fixed to seek redemption, the time to seek redemption will arise on the date of mortgage itself. The said appeal was admitted to Division Bench in view of the important question of law. Many other appeals were ordered to be heard with these appeals.

4. The Division Bench while hearing the present appeal along with other appeals framed the following questions for opinion of the larger Bench :-

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 a usufructuary mortgagor to get his property redeemed?

5. The Transfer of Property Act, 1882 (for short the Act) is as such not applicable to the States of Punjab and Haryana. Sections 54, 107 and 123 of the Act were extended to the then State of Punjab with effect from 1-4-1955 and to the Pepsu area of the State of Punjab with effect from 15-5-1957. Section 59 was extended to whole of Punjab with effect from 10-6-1968. Section 58(g) of the Act, has been extended to district headquarters in the State of Punjab vide notifications dated 28-8-1975; to all the block headquarters vide notification dated 23-6-1979; Mandi Gobindgarh in District Fatehgarh Sahib and Mohali in Ropar vide notification dated 28-5-2001. The provisions of Sections 59 and 58 (f) have been extended to the State of Haryana with effect from 5-8-1967 and 10-5-1972, respectively. Section 58 of the Act was extended to the area of Chandigarh with immediate effect vide notification dated 18-12-1982. The provisions of Section 118 of the Act were extended to urban area of the State of Punjab vide notification dated 10-8-1989.

6. The facts remains that the provisions of Section 58(d) of the Act and other provisions in respect of usufructuary mortgage have not been made applicable to the areas falling within the jurisdiction of this Court, though such mortgages are required to be made by wa