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2023 Supreme(Online)(Mad) 96077
MADRAS HIGH COURT
Honourable Ms. Justice P.T. ASHA
GHOUSE BAIG S/O.KAREEM BAIG – Appellant
Versus
MAHAMUDA BEGUM - Died – Respondent
SA/1896/2004
The right to redeem a usufructuary mortgage does not extinguish after 30 years from the date of the mortgage, unless the mortgagee has become the owner of the property by virtue of Section 62 of the Transfer of Property Act.
Headnote:
USUFRUCTUARY MORTGAGE - REDEMPTION - LIMITATION - POSSESSION - BARE INJUNCTION
Fact of the Case:
The plaintiff filed a suit for permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the suit property. The suit property was a house site with a basement constructed thereon. The plaintiff claimed to have purchased the property from one Mohamad Kasim @ Sabjan Sahib and his wife Johara Bibi under a registered sale deed dated 05.02.1968. The defendants claimed that the sale in favour of the plaintiff was a sham and nominal one. They contended that after the purchase of the property by Kasim from Syed Kadar Sahib on 17.08.1933, he had executed a usufructuary mortgage deed in favour of Fathima Bibi Ammal and Essac Sahib under a registered mortgage deed dated 19.08.1937. Thereafter, on 17.03.1941, the said Fathima Bibi had released her rights in the mortgage in favour of her son Essac Sahib. The said Essac Sahib died leaving the properties in the hands of his maternal uncle's son Karim Beig, who was the only legal heir living at that time. The defendants claimed that Karim Beig was already the owner of Door Nos.24 and 26. Since Kasim Sahib had not redeemed the mortgage within stipulated time, he had orally sold the property to Karim Beig under a settlement deed dated 15.07.1946. Karim Beig had thereafter settled the property in favour of his son Ghouse Beig, the 2nd defendant in the suit. At the time of the settlement, Ghouse Beig was a minor and possession was taken on his behalf by his mother Amidha Bi.
Finding of the Court:
The court held that the right to redeem the mortgage had not been extinguished. The court also held that the defendants had not been able to file any proof to show possession of the property. However, the plaintiff had filed documents to show possession of the property in the form of Ex.A.3 to Ex.A.8. The court further held that the suit was one for bare injunction and the person who was questioning the title was a third party to the property.
Issues: 1. Whether or not the plaintiff's vendor lost his title to the suit property as per Section 27 of the Limitation Act, as he failed to redeem the usufructuory mortgage (Ex.B.1) within the period of limitation?2. Whether the suit for bare injunction without a prayer for declaration of title to the suit property is valid in law, especially when the plaintiff's title was seriously disputed by the defendants?3. Having regard to the fact that the suit property had been dealt with by the second defendant and his parents, whether the plaintiff is entitled to a decree for permanent injunction as prayed for by her?
Ratio Decidendi: The court relied on the judgment of the Supreme Court in Singh Ram Vs. Sheo Ram and others, (2014) 9 SCC 185, to hold that the right to redeem the mortgage had not been extinguished. The court also held that the defendants had not been able to prove that they were the legal heirs of the original mortgagee, Essac Sahib. Therefore, the court held that the defendants had not been able to establish any right to the property.
Final Decision: The Second Appeal was dismissed.
S.A.No.1896 of 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 03.01.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1896 of 2004
1.Ghouse Baig
2.A.Nazeer Ahmed
...Appellants
Vs.
1.Mahamuda Begum (Died)
2.Fazal Baig
3.Rahima
4.M.Y.Khader Basha
5.M.Y.Nasheer Ahamed
6.M.Y.Ummar
7.M.Y.Jameela
8.M.Y.Yasmeen
...Respondents
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S.A.No.1896 of 2004
(R4 to R8 brought on record as Lrs of the deceased 1st respondent vide
order dated 30.01.2019 made in C.M.P.No.52 of 2019 in S.A.No.1896
of 2004)
Prayer: Second Appeal is filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree in A.S.No.91 of
2003 on the file of the Principal District Judge, Vellore, dated
24.12.2003 confirming the Judgement and Decree in O.S.No.915 of
2000 dated 14.07.2003 on the file of the Principal District Munsif
Court, Vellore.
For Appellants
:
Mr.P.Jagadeesan
For Respondent 1:
Died
For Respondents :
Notice dispensed with.
2 & 3
For Respondents :
Mr.K.Harishankar
4 to 8
JUDGMENT
The 2nd and 3rd defendants in the suit O.S.No.915 of 2000 on the
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S.A.No.1896 of 2004
file of the Principal District Munsif, Vellore, are the appellants before
this Court. The appellants seek to challenge the concurrent
Judgement and Decree against them. The facts which has culminated
in the filing of the Second Appeal is herein below set out and the
parties are referred to in the same rank as before the Trial Court.
2. The plaintiff had filed a suit for permanent injunction
restraining the defendants from interfering with her peaceful
possession and enjoyment of the suit property. The suit property was
a house site with a basement constructed thereon bearing Door No.25
on Military Bazaar Street, Vellore Town, measuring East to West 4 ½
yards, North to South 9 Yards, bounded on the north by the street, on
the south by Karim Sahib's house on the west by Kazim Baig's house
and east by Shaju Sahib's house.
3. It is the case of the plaintiff that the suit property belonged to
one Mohamad Kasim @ Sabjan Sahib and his wife Johara Bibi, who
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S.A.No.1896 of 2004
had sold the same to the plaintiff under a registered sale deed dated
05.02.1968. Kazim in turn had purchased the property from one Syed
Kadar Sahib under a sale deed dated 17.08.1933.
4. It is the case of the plaintiff that from the date of her purchase
she has been in possession of the property by paying property tax.
Originally at the time of the purchase there was a tiled house in the
suit property which had got dilapidated. In and around the year 1996
the plaintiff had removed the same and a fresh basement was put up.
Thereafter, owing to certain financial constraints, the plaintiff was not
able to proceed further with the construction. Just prior to the filing of
the suit, the plaintiff had resumed the construction at which point in
time, the defendants had started obstructing her work. Therefore, left
with no other alternative, the plaintiff had come forward with the suit.
5. The 2nd and 3rd defendants had filed a written statement inter
alia contending that the sale in favour of the plaintiff was a sham and
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S.A.No.1896 of 2004
nominal one. It is the case of these defendants that after the purchase
of the property by Kasim from Syed Kadar Sahib on 17.08.1933, he
had executed a usufructuary mortgage deed in favour of Fathima Bibi
Ammal and Essac Sahib under a registered mortgage deed dated
19.08.1937. Thereafter, on 17.03.1941, the said Fathima Bibi had
released her rights in the mortgage in favour of her son Essac Sahib.
The said Essac Sahib died leaving the properties in the hands of his
maternal uncle's son Karim Beig, who was the only legal heir living at
that time.
6. It is further case of the defendants that Karim Beig was
already t
