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PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH
DEEPAK GUPTA
Surjit Kaur – Appellant
Versus
Malkiat Singh – Respondent
JUDGMENT :
Deepak Gupta, J.
1. This Regular Second Appeal is directed against the concurrent findings of the Courts below, whereby the suit for declaration filed by the plaintiffs seeking the right to redeem 1/4th share of mortgaged property was dismissed by the learned Trial Court vide judgment dated 04.01.1996; and the appeal by them against the same was dismissed by the learned First Appellate Court vide judgment dated 17.04.1999.
2. For convenience, the parties shall be referred to as per their status before the learned Trial Court.
3. 1 Factual Matrix: One Partap Singh was the original owner of the suit land. In May 1943, he mortgaged the entire land with Mehar Singh and Arjan Singh for a sum of Rs.2345/-, as reflected in mutation No.5120 (Ex.P12). Eventually, Mehar Singh purchased Arjan Singh's mortgagee rights and became the sole mortgagee.
3.2 Upon the death of Partap Singh (who died unmarried and issueless), his estate devolved as follows:
- 1/2 share to Mehar Singh son of Wasawa Singh (predecessor of the plaintiffs),
- 1/4 share to defendants No.1 to 7 (legal heirs of Kehar Singh son of Hazara Singh), and
- 1/4 share to Sham Kaur defendant No.8, daughter of Mehar Singh son of Sah
The right of a mortgagor to redeem is legally upheld, and purchasing a share by mortgagees does not extinguish the mortgage right.
The intrinsic right of a mortgagor to redeem a property exists as long as the mortgage is active, and limitation periods only commence upon the mortgage debt being fully discharged.
(1) Equity of redemption means a right to redeem property based upon equitable principles. Right of redemption recognised under the Act is a statutory and legal right which cannot be extinguished.(2)....
A usufructuary mortgagor can redeem the mortgage at any time; the right is not extinguished by the passage of 30 years, as affirmed by the Supreme Court.
In a usufructuary mortgage, the right to redeem does not extinguish after 30 years; it arises only upon payment of the mortgage money.
The central legal point established in the judgment is the application of the old and new Limitation Acts in determining the period for redemption and the entitlement to the benefits under the Agricu....
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