PUNNAN Vs. SWARN KAUR

JUDGEMENT

(1.) The following substantial questions of law arise for consideration in the second appeal:-

(2.) The plaintiffs are the successors-in-interest of Tara Singh, who had executed two mortgages, one document dated 23.05.1946 for securing a loan of Rs. 2,600/- in respect of 34 kanals 7 marlas in favour of 5 persons, namely, Rattan Singh, Mehar Singh, Kehar Singh, Chanan Singh and Ujjagar Singh. He executed a subsequent mortgage dated 16.05.1966 in respect of about 40 kanals of land that included 24 kanals of land already mortgaged under the previous mortgage and the subsequent mortgage was to secure a loan of Rs. 8,500/- given by two of the earlier mortgagees-Mehar Singh and Kehar Singh. The plaintiff's contention that the first mortgage had been redeemed by payment of Rs. 1,040/- to Mehar Singh and Kehar Singh and another sum of Rs. 1,560/- given to them in trust for other mortgages. The Court found that the payment as established but the receipt of Rs. 1,560/- by only 2 of the mortgagees on behalf of the remaining 3 had not been proved and, therefore, the plaintiffs' suit for redemption cannot lie. The court also found that the suit for redemption of mortgage which was executed more than 30 years prior to the institution of the suit had been barred by limitation. The law requires both the mortgages to be consolidated as provided under Section 67-A of the Transfer of Property Act and rightly a single suit had been filed for redemption of both the mortgages. As observed, the court below has accepted the payment of Rs. 2,600/- to the two of mortgages but found that the plaintiff did not establish that the payment more than the share of two of the mortgages had been delivered to them in trust and that they did not pay. If the mortgage had been in favour of 5 persons and the amount had been paid in full, the co-mortgagee could have only sought for contribution from the co-mortgagees, who had received the full mortgage consideration and could not have defeated the claim of mortgage itself. On its finding that the entire consideration of Rs. 2,600/- had been paid, the plaintiffs were bound to be granted with a decree for redemption. I would, therefore, take that the payment under the first mortgage dated 23.05.1946 had been fully paid and the mortgage was liable to be redeemed without any further liability for making the payment.

(3.) The plaintiffs cannot still take a decree without finding that the suit was within time. The issue has been squarely considered by the Full Bench in Ram Kishan Versus Sheo Ram, 2008 1 ILR(P&H) 719. This Court itself has had an occasion to deal with the same issue and with reference to all the principles involved relating to redemption of usufructuary mortgage in Ram Kumar and others versus Mohinder and others in RSA No.2628 of 1982, dated 08.11.2011. So long as the right was not foreclosed by the mortgagee, once a mortgage would always be a mortgage and the suit for redemption could not have been dismissed in the manner done. I adopt the same reasoning as was considered by the Full Bench in Ram Kishan and by this Court in Ram Kumar's case .