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2019 Supreme(P&H) 228
IN THE HIGH COURT OF PUNJAB AND HARYANA
ANIL KSHETARPAL, J.
DALEL SINGH AND OTHERS - Appellant
Versus
RAMPAL AND OTHERS - Respondent
Regular Second Appeal No. 4018 of 2013
Decided on : 06-02-2019
Advocate Appeared:
Arun Jain, Adv., Amit Jain, Adv., Varun Parkash, Adv., Vikas Bahl, Adv., Nitin Jain, Adv., Nikhil Sabharwal, Adv.
The main legal point established in the judgment is the interpretation of the mortgage deed and the determination of its nature as an usufructuary mortgage, as well as the application of the limitation period for redemption.
Headnote:
Redemption of Mortgages - Mortgage by Conditional Sale - Usufructuary Mortgage - Section 58(c) of the Transfer of Property Act, 1882 - Section 12 of the Redemption of Mortgages (Punjab), Act, 1913 - [58(c)] - The court analyzed the mortgage deed and determined that it did not fulfill the requirements of a mortgage by conditional sale but rather qualified as an usufructuary mortgage. The court also discussed the limitation period for redemption and cited a judgment of the Hon'ble Supreme Court to support its decision. The court found that the plaintiffs' previous suit for declaration that they had become owners barred them from making the same claim in the present suit, and therefore dismissed the appeal.
Fact of the Case:
The plaintiffs filed a suit for declaration that the order passed by the Collector under the Redemption of Mortgages (Punjab), Act, 1913 is wrong and illegal with a consequential relief of permanent injunction. The suit was dismissed, and the plaintiffs filed an appeal. The successors of the mortgagor filed an application under the Act of 1913, which was allowed by the authority. The plaintiffs challenged this order in the present suit.
Finding of the Court:
The court found that the mortgage deed did not fulfill the requirements of a mortgage by conditional sale but qualified as an usufructuary mortgage. The court also determined that the limitation period for redemption had not expired. Additionally, the court found that the plaintiffs' previous suit barred them from claiming ownership of the property in the present suit.
Issues: The issues needing determination were whether the deed of mortgage was a mortgage by conditional sale, whether the limitation for redemption would begin to run after the expiry of the prescribed period, and whether the present suit was barred under Order 23 Rule 1 of the Code of Civil Procedure.
Ratio Decidendi: The court analyzed the mortgage deed and determined that it did not fulfill the requirements of a mortgage by conditional sale but rather qualified as an usufructuary mortgage. The court also discussed the limitation period for redemption and cited a judgment of the Hon'ble Supreme Court to support its decision. The court found that the plaintiffs' previous suit for declaration that they had become owners barred them from making the same claim in the present suit.
Final Decision: The appeal was dismissed.
ANIL KSHETARPAL, J.
1. Plaintiffs-Appellants are in the regular second appeal against the concurrent finding of fact arrived at by the Courts below dismissing the suit for declaration that the order passed by the Collector under Redemption of Mortgages (Punjab), Act, 1913 is wrong and illegal with a consequential relief of permanent injunction.
2. Detail facts have been noticed by the Courts below. However, to complete narration of facts, the necessary facts are being noticed.
3. Yaad Ram was owner of 47 bighas and 8 biswas of land vide sale deed dated 26.06.1879 (Ex. P-3). He sold 23 bighas and 14 biswas of land in favour of predecessor-in-interest of the plaintiffs for a sum of Rs.200/-. After little more than one year i.e. on 05.08.1880, he also mortgaged 23 bighas and 14 biswas of land (equivalent to the land sold) for a sum of Rs.225/- in favour of predecessor-in-interest of the plaintiffs. The plaintiffs filed a suit for declaration claiming that they have become owners as limitation for redemption of the mortgage has elapsed. The suit was dismissed vide judgment and decree dated 28.05.2005. The plaintiffs-appellants filed appeal, however, during the pendency of the suit, the plaintiffs-appellants withdrew the suit on 09.09.2008. No permission of the Court to file the fresh suit was sought.
4. The successors of mortgagor filed an application before the competent authority under the Redemption of Mortgages (Punjab), Act, 1913 and deposited the mortgage amount. The application was allowed by the authority after returning a finding that the mortgage was an usufructuary mortgage. The order passed by the authority has been challenged in the present suit under Section 12 of the Act of 1913.
5. Lengthy arguments have been addressed by senior counsels appearing for both the parties. Two contentions have been raised by learned counsel appearing for the appellants.
1. The mortgage deed was a mortgage by conditional sale as the mortgage provided that if the property is not redeemed within four years, the property mortgaged would be treated as sale. In the present case, Courts have erred in treating the mortgage to be usufructuary mortgage.
2. Even if the mortgage deed is not a mortgage by conditional sale, still period to redeem the mortgage having been prescribed, the limitation for redemption would begin to run on expiry of such period, therefore, also the order passed by the authority under the Act of 1913 is illegal.
6. On the other hand, learned senior counsel appearing for the respondents has submitted that the plaintiffs-appellants had filed a similar suit with respect to same property claiming declaration that they have become owner as by prescription of time which has been withdrawn without permission of the Court and therefore, the suit is barred under Order 23 Rule 1(4) of the Code of Civil Procedure. He has further submitted that four year prescribed in the mortgage deed is a clog on equity of redemption and therefore, illegal. He relied upon a judgment passed by the Hon'ble Supreme Court in the case of Seth Ganga Dhar Vs. Shankar Lal and others, (1958) AIR SC 770. He has further submitted that this is not a mortgage by conditional sale. He further submitted that the possession of the land was given and the mortgagee (predecessor-in-interest of the plaintiffs-appellants) have enjoyed usufruct of the land. Hence, the present case is of usufructuary mortgage as there is no personal liability of the mortgagor.
7. This Court has analyzed the arguments of learned counsel for the parties and with their able assistance gone through the judgments passed by the Courts below and the record.
8. In the considered opinion of this Court, the following issues need determination:-
1. Whether deed of mortgage is a mortgage by conditional sale?
2. Whether limitation for redemption of the mortgage would begin to run after the expiry of the period prescribed in the mortgage for treating the property as sale?
3. Whether the present suit filed
