IMPORTANT POINT
A mortgage, shall always be redeemable and a mortgagors right to redeem shall neither be taken away nor be limited by any contract between parties.

Kurian Joseph, C.J.—“Once a mortgage always a mortgage” is a principle based on equity, justice and good conscience evolved for the first time in 1681 by Lord Nottingham. The reference to that effect is available in “Law of Mortgage” by Dr. Rashbehary Ghose, 8th Edition at page 281, which reads as follows:

“In 1681 Lord Nottingham in the leading case of Harris v. Harris1 firmly laid down the principle: ‘Once a mortgage, always a mortgage.’ This is a doctrine to protect the mortgagor’s right of redemption: It renders all agreements in a mortgage for forfeiture of the right to redeem and also encumbrances of or dealings with the property by the mortgagee as against a mortgagor coming to redeem. In 1902, the well known maxim, ‘once a mortgage, always a mortgage’ was supplemented by the words ‘and nothing but a mortgage’ added by Lord Davey in the leading case of Noakes v. Rice2, in which the maxim was explained to mean ‘that a mortgage cannot be made irredeemable and a provision to that effect is void’. The maxim has been supplemented in the Indian context by the words and therefore always redeemable,’ added by Justice Sarkar of the Supreme Court in the case of Seth Ganga Dhar v. Shankarlal.3”

2. The principle is essentially meant to state the position that once a mortgage is made, it retains the basis characteristic in the mortgage though it may subsequently undergo any other mode of conveyance. It has to be seen that originally there was no prescribed period of limitation for recovery of possession or redemption of a mortgage. For the first time, the period of limitation for recovery of possession or redemption of mortgage was prescribed in 1859, as 60 years and presently under the 1963 Act, it is 30 years. It appears the above principle has been interpreted in few decisions to hold that there is no limitation for redeeming a mortgage, without taking note: of the prescribed period of limitation for recovery of possession or redemption of a mortgage. That essentially is the genesis of the: reference in this case, which reads as follows:

“Whether any period of limitation is prescribed for filing a suit for possession of immovable property by redemption of a usufructuary mortgage which does not fix any time for re-payment, of mortgage money?”

3. In all the un-reported decisions of the learned single Judges, and the reported decision of the Division Bench of this Court in Jaimal v. State of H.P.4 the view taken is that there is no period of limitation for redemption of usufructuary mortgage which has not fixed a particular period. The Division Bench decision, referred to above, mainly placed reliance on the Full Bench decision of the Punjab and Haryana High Court in Ram Kishan v. Sheo Ram.5 The Full Bench of the Punjab and Haryana High Court has referred to various Supreme Court decisions including the latest in Prabhakaran v. Mazhagiri Pillai (Dead) by L.Rs.6 But the Punjab and Haryana High Court has made an attempt to distinguish the decision observing that the principle laid down in the said decision is only obiter. Prabhakaran’s case (supra) had not been brought to the notice of the Division Bench of this Court while deciding Jaimal’s case and had it been referred; the judgment might have been different, Subsequently, when Prabhakaran’s case was relied at the time of hearing of RSA No.24 of 2000, the learned single Judge, having taken note of the fact that Prabhakaran’s case was not considered in the Bench decision or any other earlier decisions of this Court, thought that the matter requires consideration by a larger Bench and thus, the reference.

4. At the outset, we may point out that there are conflicting views on this aspect in the Apex Court. However, if the decisions are closely studied in the history and background of the Limitation Act and Transfer of Property Act, it is crystal clear that there is a prescribed period of limitation for filing a suit for recovery of possession of immovable property by red