The right of a usufructuary mortgagor to redeem under section 62 of the Transfer of Property Act is indefeasible and not extinguished by the expiry of 30 years.

JUDGMENT

Raj Mohan Singh, J. - Defendants are in regular second appeal against the concurrent judgments and decrees passed by the Courts below in a suit for possession by way of redemption.

2. Plaintiff filed a suit for possession by way of redemption on the ground that his predecessor-in-interest mortgaged the suit land with the predecessor-in-interest of the defendant and mortgagee was delivered possession of the suit land. The entries were made to the said effect in the revenue record. Mortgage was effected in the year 1880 for a sum of Rs. 32/ It was agreed between the parties that the mortgagor could redeem the suit property at any time on making payment of the mortgage amount in the beginning of the agriculture year. It was also agreed that the payment towards land revenue was the responsibility of the mortgagee. Mortgage was usufructuary mortgage in nature.

3. Plaintiff alleged that he had purchased the mortgagor right from Rattan Singh for a consideration of Rs. 19,80,000/- vide sale deed dated 21.02.2011 wherein vendor admitted the jural relationship of mortgagor and mortgagee with the defendants. Defendants No.1 to 4 have been shown to be usufructuary mortgagees in possession and have been receiving profits from the suit land.

4. The suit was contested by the defendants on the ground that limitation of 30 years has already expired and equity of redemption had barred by operation of law and the defendants have become owners by afflux of time. Defendants also denied that they are usufructuary mortgagees in possession. From the year 1880, defendants had claimed adverse possession over the suit property and they have become absolute owners in possession without any interference from the plaintiff.

5. Both the parties went to trial on the following issues:-

"1. Whether the predecessor in interest of the plaintiff was owner/mortgagor of the agricultural land comprising Khewat No.107, Khatoni No.122, Rect. No.34, Killa No.16/2(4-16) situated within the revenue estate of village Sarurpur, Tehsil Ballabgarh, District Faridabad and the predecessors-in-interests of the defendant was mortgagee in possession of the suit land and the suit land was mortgaged with the original mortgagees in the year 1990 for a sum of Rs. 32/- and it was a usufructuary mortgage? OPP

2. Whether the plaintiff purchased the ownership/mortgagor rights from the vendor Shri Rattan Singh son of Shri Tulla, resident of Village Sarurpur, Tehsil Ballabgarh, District Faridabad for Rs. 19,80,000/- vide registered sale deed No.13852 dated 21.02.2011 and since the plaintiff has become mortgagor by coming in the shoes of his vendor qua the suit land? OPP

3. In case issues No.1 and 2 are decided in favour of the plaintiff, then whether the plaintiff is also entitled to a preliminary decree for redemption in respect of the suit land on payment of amount of Rs. 32/- due on the mortgage or any other amount deem fit by the Court alongwith a decree for possession by way of redemption of suit land as detailed in para No.1 of the plaint, as prayed for? OPP

4. Whether the plaintiff has no locus standi to file the present suit? OPD

5. Whether the suit of the plaintiff is not maintainable? OPD

6. Whether the plaintiff has concealed the true and material facts from the Court and has not come to the Court with clean hands? OPD

7. Whether the suit filed by plaintiff is barred by limitation? OPD

8. Relief."

6. Both the Courts below have decreed the suit on the ground that a mortgage was required to be redeemed being usufructuary in nature. In a case of usufructuary mortgage, mortgagor has a right to get it redeemed by making payment of the mortgage money under section 62 of the Transfer of Property Act. Mere expiry of the period of 30 years from the date of mortgage does not extinguish right of mortgagor under section 62 of the Transfer of Property Act. On the strength of Ram Kishan v. Sheo Ram and others, AIR 2008 P&H page 77 affirmed by the Hon'ble Apex Court in Singh Ram (D) th