The inapplicability of the 30-year limitation period for redeeming a usufructuary mortgage and the inability of a usufructuary mortgagee to file a suit for declaration claiming ownership of the mortgaged property after the expiry of 30 years from the date of the mortgage.

JUDGMENT

Tribhuvan Dahiya, J. - This is defendants' appeal against the concurrent findings of both the Courts below.

2. The facts of the case in brief are that proforma respondents- defendants No.4 and 5 being owners of the suit land, i.e., agricultural land measuring 61 kanal 7 marlas, mortgaged it with the respondents-plaintiffs No.1 and 2 (hereinafter, referred to as 'plaintiffs') for a sum of Rs. 4,500 on 17.10.1951. They later sold the suit land to appellants-defendants No.1 to 3 (hereinafter, referred to as 'defendants'). The possession, however, remained with the plaintiffs as being mortgagees. It was pleaded, as the mortgage in question was not redeemed by the original mortgagors or their vendees/defendants within the prescribed limitation period of 30 years, the plaintiffs had become full-fledged owners of the suit land by efflux of time; therefore, declaration to that effect be issued.

3. Defendants contested the suit by admitting that respondents No.4 and 5, original owners of the suit land, sold it to them on 15.06.1956 for a sum of Rs. 4,500. They, accordingly, became owners in possession of the land. The encumbrance on the land was got removed on payment of mortgage amount to the plaintiffs' father on 14.06.1956. Therefore, the plaintiffs neither have any right, title or interest in the suit land, nor can they be declared owners thereof, nor can any prohibitory injunction in their favour be issued.

4. Upon pleadings of the parties, the following issues were settled for trial of the suit:

'1. Whether the plaintiffs are in possession of the suit land as mortgagees? OPP

2. Whether the land was got redeemed by defendants from Chand Singh on 14.6.1956, as alleged? OPP

3. Whether the plaintiffs are entitled to the declaration claimed for? OPP

4. Whether the land in dispute was allotted in lieu of original mortgaged land? OPP

5. Relief."

5. On Issue no.2, the defendants claimed to have redeemed the mortgage on 14.06.1956 by paying the mortgage amount of Rs. 2,900 to the plaintiffs' father, who, in turn, executed receipt Exh.D2, extinguishing all encumbrances on the mortgage in question. It has been held by both the Courts below that receipt, Exh.D2, bears the thumb impressions of plaintiffs' father which have been duly proved by evidence of DW-9. The amount of the mortgage, though pleaded to be Rs. 4,500, was held to be Rs. 2,900 as mentioned in receipt, Exh.D2, dated 14.06.1956, as well as the sale deed dated 15.06.1956 Exh.D1, vide which the suit land was purchased by the defendants. It has further been held by both the Courts that receipt Exh.D2, cannot be held to have extinguished the mortgage in question. The amount of the mortgage being more than Rs. 100 as also value of the suit land, the receipt in question required compulsory registration. Besides, receipt Exh.D2 contained a recital that the mortgage amount has been received by father of the plaintiffs, and the mortgage stood redeemed by surrendering possession of the suit land. It was held, since the receipt extinguished the mortgage and also recorded that possession had been handed over, it required compulsory registration which was not done. Therefore, the receipt is not admissible in evidence, and based on that redemption of mortgage cannot be accepted.

6. It was further held that receipt Exh.D2, by which the mortgage money was paid to the plaintiffs, was executed on 14.06.1956; whereas, the defendants purchased the suit land from the original owners on the following date, i.e., 15.06.1956, vide registered sale deed Exh.D1. Therefore, on the date of execution of the receipt in question, they were not owners of the property and could not have redeemed the mortgage. Their right to extinguish the mortgage would only arise after 15.06.1956, on becoming owners of the suit land and not prior thereto. In these circumstances, receipt Exh.D2 was taken to mean only that defendants purchased the mortgagee rights of the suit land from the plaintiffs. Accordingly, findings on issu