JAI RAM AND ANOTHER Vs. SURENDER AND OTHERS

JUDGEMENT

(1.) The claim made by the plaintiff-appellants before the trial Court was for declaration that they along with proforma respondents have become owners of the property in question by efflux of time, as the mortgage deed dated 24.11.1959 executed by the predecessor of respondent-defendants No. 1 to 5 was not redeemed despite the lapse of more than 30 years. The respondents No. 1 to 5, however, while opposing the claim of appellants also set up a counter-claim for redemption of the usufructuary mortgage. The learned trial Court dismissed the suit of appellants and allowed the counter-claim. Learned lower Appellate Court dismissed the appeal.

(2.) I have heard learned counsel for the appellants at considerable length and perused the judgments of both the Courts below and also the paper-book.

(3.) The learned Courts below have concurrently held that usufructuary mortgage does not ripen into ownership by efflux of time. Admittedly, there was no time limit in the mortgage deed itself for seeking redemption of the land. A Full Bench of this Court in Ram Kishan and others v. Sheo Ram and others, 2008 1 RCR(Civ) 334, held that in case of usufructuary mortgage, where no time limit is fixed to seek redemption, the right to seek redemption would not arise on the date but will arise on the date when the mortgagor pays or tenders to mortgagee or deposits in Court, the mortgage money or balance thereof. It was thus, held that once a mortgage always a mortgage and is always redeemable.