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2020 Supreme(P&H) 622
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Anil Kshetarpal, J.
Alla Singh (since deceased) through his LRs - Appellants
Versus
Jaswant Kaur and Others - Respondents
RSA-5347-2003 (O&M), CR-6201-2012 (O&M)
Decided On : 16-03-2020
For the Appellant :Mr. Aakash Singla, Advocate
For the Respondent:Mr. V.G. Jauhar, Advocate
The admissibility of evidence and entitlement to declaration and possession in mortgage foreclosure cases.
Headnote:
Mortgage - Foreclosure - Transfer of Property Act - Section 60, Specific Relief Act - Section 34
Fact of the Case:
The plaintiff filed a suit for declaration that he has become the owner of a mortgaged property due to the lapse of time as the defendant failed to redeem the mortgage. The defendant contested, claiming the mortgage had been redeemed. The trial court decreed the suit for declaration but held the defendant was in possession. Both parties appealed.
Finding of the Court:
The court found that the mortgage was usufructuary without a prescribed redemption time. The receipt of redemption was held inadmissible due to non-registration. The plaintiff, not being in possession, was not entitled to the declaration. A subsequent suit by the plaintiff's legal heirs was also dismissed.
Issues: (1) Whether the mortgage is usufructuary without a prescribed redemption time? (2) Admissibility of the redemption receipt? (3) Entitlement of the plaintiff for the declaration and possession.
Ratio Decidendi: The mortgage was found to be usufructuary without a prescribed redemption time. The redemption receipt was held inadmissible due to non-registration. The plaintiff, not being in possession, was not entitled to the declaration.
Final Decision: The defendant was declared the owner in possession and entitled to redeem the mortgage. The subsequent suit by the plaintiff's legal heirs was dismissed as infructuous.
JUDGMENT :
Anil Kshetarpal, J.
1. By this order, two appeals i.e. RSA-5347-2003 and CR-6201- 2012, shall stand disposed of.
2. The defendant-appellant has filed the Regular Second Appeal against the concurrent findings of fact arrived at by the Courts below while deciding the suit filed by the plaintiff for declaration that he has become owner of the property on account of lapse of time as the defendant has failed to redeem the mortgage. In other words, the plaintiff has filed the present suit for foreclosure. The registered mortgage deed was executed on 02.06.1964 for a sum of Rs. 2000/-. The execution of mortgage deed and delivery of possession by the mortgagor to the mortgagee is not disputed.
3. On reading of the mortgage deed, which is Ex.PW2/A, it is apparent that Gurnam Singh son of Gurdit Singh had mortgaged three bighas and 14 biswas pukhta along with share in Canal Water for a sum of Rs. 2000/-. A translation of the mortgage deed (relevant part) produced by learned counsel for the parties, is extracted as under:-
“TRUE TRANSLATION OF RELEVANT AND OPERATIVE PART OF MORTGAGE DEED DATED 02.06.1964
"Office of Sub Registrar Sangrur. Deed of mortgage of land. Mortgage amount Rs. 2000/-
Stamp Paper Rs. 45/- Words about 200
I Gurnam Singh aged 55 years son of Gurdit Singh son of Bhagwan Singh of Village Mangwal Tehsil and District Sangrur, hereby mortgage 3 Bigha Pukhta 14 Biswas Pukhta (Pukhta means Pakka Bighas) comprised of Khata No. 40/51 killa Nos. 44/16/2(0-4), 17/1(1-4), 24/1(1- 7), 25/1(0-9) situated at Village Mangwal as per Fard Patwar jamabandi for the year of 1957-58 alongwith 1/8 share in 'Canal water course turn, also alongwith all rights including water course, path for Rs. 2000/- half of which comes to Rs. 1000/- with Jangir Singh, Surjit Singh sons of Kehar Singh of Village Bhaike Bhasaur now resident of village Mangwal, in equal share. The mortgage amount of Rs. 2000/- shall be received in front of Sub Registrar Sangrur. The possession has already been delivered to the mortgagee who can take profits of produce of the land. Amount is required to clear the loan. Mortgagor can get the land redeemed by paying the mortgage amount of Rs.2000/- in the start of year. (Rahin (mortgagor) 2000 rupaye jar rehan Mortgage amount) dekar shuru saal mein arazi murhan (Mortgage land) fak kara sakega). So this mortgage deed is written with sound health and mind so that it may remain Sanad and may be used. Dated 02.06.1964.”
4. The plaintiff claims that since 30 years have lapsed and since the defendant has failed to redeem, therefore, he is entitled to a decree, as prayed for.
5. The defendant contested the suit by pleading that he is in possession of the property as the mortgage had been redeemed on payment of Rs. 2000/- on 25.06.1991, evidenced by a receipt and hence, the plaintiff is not entitled to declaration.
6. Learned trial Court decreed the suit filed by the plaintiff with regard to declaration that the plaintiff has become owner by foreclosure as the defendant has failed to redeem. However, it was held that the defendant is in possession of the property. The trial Court held that the receipt Ex.D1, the evidence of redemption of the mortgage is not admissible in evidence being unregistered in view of Section 60 of the Transfer of Property Act. Two appeals were filed, one by the plaintiff and second by the defendant.
7. Learned First Appellate Court has affirmed the judgment passed by the learned trial Court while declaring that the plaintiff has become owner of the mortgaged property by foreclosure as the period for redemption has lapsed. However, the finding of the trial Court that the defendant is in possession of the property has also been affirmed. The Court further found that Ex.D1 cannot be read in evidence.
8. In the considered view of this Court, following questions require adjudication:-
(1) Whether the mortgage is a usufructuary mortgage without prescribing any time for redemption and, therefore, the limitation would not
