BARHU SINGH Vs. KHARPATTU

JUDGEMENT

(1.) The facts of the two cases are as follows. One Nepal Singh predecessor-in-interest of the plaintiff-respondents executed a usufructuary mortgage or mortgages in favour of Bacha alias Chenol Singh predecessor-in-interest of the defendant-appellants for a consideration of Rs. 499/-. The exact date of the mortgage or mortgages is not known but they were executed somewhere in the year 1881-82. The property mortgaged was an occupancy holding. In the year 1945 the plaintiff-respondents filed a suit for accounting under Section 33, U. P. Agriculturists' Relief Act. They alleged that nothing was due under the mortgage or mortgages as the usufruct of the mortgaged property had satisfied the mortgage money. The defence to the suit was that the mortgage or mortgages were executed more than 60 years ago and this relationship of mortgagor and mortgagee had ceased to exist between the parties and the suit was time-barred and was not maintainable. The trial Court held that the suit having been brought more than 60 years of the execution of the mortgage, the relationship of mortgagor and mortgagee had ceased to exist and the suit was not maintainable. On appeal the lower court held that the period of limitation commenced to run from the year 1940 when the Debt Redemption Act was passed under which all usufructuary mortgages became sell-liquidating mortgages and that all those mortgages which were in force at the date of the commencement of the U. P. Debt Redemption Act would have their period of limitation up to the year 2000. This the lower appellate Court held upon the authority of a decision of a Division Bench of this Court in -- 'Ram Prasad v. Bishambhar Singh', 1946 All 400 (AIR V 33) (A). It also declared that the mortgage money had been paid off. In the circumstances the suit was decreed with that declaration. Against that decree the defendants came up in second appeal to this Court. This was numbered! as 602 of 1948.

(2.) While this appeal was pending a Full Bench of this Court held in -- 'Mahabal Singh v. Ramraj', 1950 AH 604 (AIR V 37) (FB) (B), that a usufructuary mortgage of an occupancy holding was void and that no suit for its redemption was maintainable but that a suit for possession upon payment of the mortgage money in the Civil Court could be instituted. Though this decision was in respect of a mortgage of an occupancy holding in Oudh the plaintiff-respondents considering that the ruling might apply to the mortgage or mortgages in dispute filed a suit (No. 570 of 1950), for possession over the mortgaged property. In this plaint the plaintiffs alleged that as a, mortgage of an occupancy holding was void, they may be awarded possession on payment of the mortgage money. The defence to the suit was that the suit was barred by time under. Article 148, Limitation Act. The trial Court relying upon certain observations made in the Full Bench case referred to above held that when the mortgage was void no question of limitation arose in the case and that upon payment of the mortgage money possession can be recovered at any time. In this view of the matter the suit was decreed upon payment of Rs. 499/- to the defendants, and the plaintiffs were given three months' time to deposit the amount, or in default the suit was to stand dismissed We are informed that the plaintiffs deposited the amount in Court within the time allowed by the Court. The defendants appealed to the lower appellate Court but were unsuccessful. Hence they filed Second Appeal No. 1302 of 1951 in this Court.

(3.) When these cases came up for decision before us some time ago we considered that it would be necessary in the case to determine the date upon which the mortgage amount should be deemed to have been paid up by the usufruct under the provisions of the U. P. Debt Redemption Act, and remitted an issue to the Court below for the purpose of ascertaining that date. The lower appellate Court has now found that the mortgage amount was wholly paid up in the year 1884-85. The two appeals are now before us for final disposal.