The starting point of limitation for redemption of a usufructuary mortgage is when the principal money becomes due. The right to redeem accrues at that point, and the limitation period is 30 years from that date.

K. Kannan, J.

CM No.8109-C of 2011 in RSA No.2628 of 1982

Application for impleadment of legal representatives of respondent No.7 is allowed. Registry to carry out necessary amendment in the memo of parties.

I. Common point of law – Issue of limitation for redemption of usufructuary mortgage

1. All the above cases evoke a common question of law, namely, the starting point for the limitation for institution of suit for redemption of use of a decree of mortgage. In some cases, the suits have been at the instance of mortgagees seeking for declaration that the property had become vested in them, since the mortgagors have not redeemed the mortgage within time. The issue would all be considered on a single approach of whether there is any bar for a mortgagor or a successor-in-interest to claim a redemption or recovery of possession to the property held by a mortgagee or a successor. With an express provision like Article 61 of the Limitation Act, 1963 that spells a period of limitation, the answer would seem obvious that there does exist a period of limitation but the controversy surrounds on understanding the starting point of limitation. The question would rather be how to assess the starting point for computation for period of limitation for a suit for redemption of a usufructuary mortgage. The corollary to this question would be whether the continuation in possession by a mortgagee or a successor beyond a period of 30 years would foreclose the right of a mortgagor or the successor to redeem or recover possession of the property and vest the property in the mortgagee himself as a full owner.

II. RSA 1708 and 1709 of 1983: Possession under usufructuary mortgage is an admitted fact, although the document of mortgage with full details of mortgage are not filed

(Subsidiary issue 1)

2. In RSA Nos.1708 and 1709 of 1983, there are other incidental issues which could be disposed of immediately before undertaking the exercise on issue relating to limitation for redemption. There were two suits, one at the instance of the mortgagee's representative, seeking for a declaration that he has become the owner of the property by the failure of the mortgagor to redeem the property within 60 years under the law of Limitation Act of 1908 and other issue was at the instance of the representative of the mortgagor seeking for recovery of possession of property on an offer to pay the mortgage money. The mortgagor claimed in the said suit that he had also made the payment and acknowledged by mortgagee through receipt dated 28.02.1979. The document of mortgage was not filed, but there is no dispute about the fact that there existed a mortgage and the same was recorded in the revenue entries. I am not, therefore, detaining the case for consideration of when the document of mortgage was executed.

III. Redemption of Mortgages Suit 1913, not a bar to civil action for redemption (Subsidiary issue 2)

3. The learned senior counsel Mr. Kanwaljit Singh, appearing on behalf of the mortgagee contended that there is a specific procedure prescribed under the Redemption of Mortgages' Act of 1913 and the suit for redemption could not have been filed. I would discard this objection as not tenable in law, for, even as per the Preamble to the Act, it is stated that “An Act to provide a summary procedure for the redemption of certain mortgages of land in Punjab”. The Act merely provides for a summary procedure for adjudicating on the rights of the mortgagor and the mortgagee and the authority constituted under the Act can either take a decision in a summary fashion or if he is of the view that the case involves serious disputed question, he can refer the party to a Civil Court. Section 13 of the Act reads as follows:

“Saving of suits to establish rights Sec13: Any party aggrieved by an order made under section 6,7, 8, 9, 10 or 11 of this Act may institute a suit to establish his rights in respect of the mortgage, but subject to the result of such suit, if any, the o