MISRA - (1.) THE only question raised by the learned counsel for the mortgagor-appellants is and, that is, what is also decided by the Courts below is whether his suit for redemption is barred by time? This is a case of oral mortgage executed in the year 1893 for a sum of Rs. 53.00 and further, a question is raised, whether fresh period of limitation would revive from 11/01/1960, on which date the original mortgagee sold his mortgagee right by a registered deed to the respondents, who acknowledge the existence of the mortgage in question?
(2.) TO appreciate the controversy, it is necessary to refer to the following short facts of this case. The suit land comprising of 37 kanals 15 marlas in Khewat No. 260, Khatauni No. 448, Rect. No. 45, Killa No. 14 (8-0), 19 (8-O), 21 (5-15), 22(8-O) situated in village Sambhli, Tehsil and District Karnal (Haryana) was originally mortgaged by Rekha and others for a sum of Rs. 53.00 in favour of Bakhatwara, Raju and Matu S/o Sahu on 21st March 1893. Mutation was sanctioned. Subsequently, on 11/01/1960, the mortgagee Matu s/o Raju and Smt. Dasondha Wd/o Parsa D/o Sahu sold their mortgagee rights vide registered sale deed in the even date to the respondents. On the other hand, the appellants had purchased the suit land in the year 1959 from the original mortgagor-Rakha and others vide three separate registered sale deeds. According to the appellants till 1960-61 it were the mortgagors who remained in possession of the suit land and were getting the same cultivated through their tenants. The appellants state that since in the year 1960 the original mortgagees had acknowledged the original mortgage, therefore, a fresh period of limitation for redemption of the mortgage in question begun to run from 11/01/1960 and prayed for possession by way of redemption on payment of Rs. 53.00. On these facts, the appellants filed the present suit in the year 1980 for possession by way of redemption of the suit land as against the respondents. The respondents contested the suit and raised preliminary objections that the present suit is hopelessly time barred and also raised other objections which are not necessary to refer, as both the parties pressed only issue of limitation not only before us but even when the matter was before the Courts below. Respondents case is that they are in possession of the suit property as owners as their predecessors-in-interest mortgages with possession transferred their entire right by means of registered sale deed dated 11/01/1960 to the respondents, as aforesaid. At that time there was no agreement in subsistence as originally mortgagees became owners. As stated earlier, the original oral mortgage was for a sum of Rs. 53.00.
(3.) THE Trial Court decreed the suit for redemption on payment of Rs. 53.00 and held that the suit is within time and hence they have right to redeem the mortgage. THE Trial Court held that the suit is within time by holding that the acknowledgment by the respondents on behalf of the original mortgagees vide sale deed dated 11/01/1960, a fresh period of limitation starts from the date of this deed. It further placed reliance in the case of Inder Singh v. Mst. Kishno (1966) 68 Punj LR 408, to hold that the period of limitation would only run after expiry of 12 years from the date of mortgage, in cases of unregistered mortgage. Since the present case is also a case of unregistered mortgage it held that such mortgage and possession would only become valid after a period of 12 years from the date of such mortgage. THE present oral mortgage in question was of the year 1893 thus the limitation would only start after 12 years of this date which would be in the year 1905 and adding 60 years from this, the limitation for filing suit would only expire in the year 1965 and since there is acknowledgment by the mortgagees on 11/01/1960, as aforesaid, a fresh limitation starts from this date hence the suit is within limitation. However, the first Appellate Courts set aside this judgment. It held that the aforesaid decision in Inder Singh (supra) is of no help to the plaintiffs (mortgagors) as it is not disputed by the parties and rather conceded that earlier, specially during the year in question, oral agreement was permissible in the State of Punjab and was treated to be a valid agreement. This coupled with the fact that the principal money secured under the said agreement was less than Rs. 100.00, so the mortgage could have been effected either by a registered instrument or by delivery of possession of the land in question. In this view of the matter, admittedly, the land in the suit was mortgaged with possession for Rs. 53.00 in March 1893. Hence, a valid mortgage came into existence on the very day of its execution. In view of this, it held that the period of limitation of redemption of the land in suit started on that very date of the execution and thus period of 60 years is to be counted from March 1893, hence the suit is barred by time. When the matter was taken in second appeal the High Court relied on its Full Bench decision in Civil Revision No. 345 of 1981, titled, Siri Chand v. Nathi, dated 21/01/1983, (reported in AIR 1983 Punj and Hary. 171) in which it overruled its earlier decision in Inder Singh (supra) and hence dismissed the appeal of the present appellants. Learned senior counsel for the appellants, Mr. A. B. Rohtagi, fairly stated that the aforesaid Full Bench decision is no doubt against the appellants but made submissions for holding contrary to what has been held therein. In the said case of Siri Chand (AIR 1983 Punj and Har 171) (supra) one of the core question raised was, whether an oral mortgage was valid in the eyes of law, which is executed on 14/06/1948 in the State of Punjab, prior to the extension of the provisions of Section 59 of the Transfer of Property Act, 1882 which requires registration of a mortgage. It is also not in dispute that the Transfer of Property Act by virtue of Section 1 is only extended in the State of Haryana on the 5/08/1967, to which the Full Bench was concerned and to the State of Punjab after 1/11/1956, to which we are concerned. It held that there was no bar to give effect to an oral mortgage in a case where mortgagor gave possession of the land to a mortgagee. The Full Bench held "Now once that is so on the admitted stand that an oral mortgage was made on 14/06/1948 it seems to inflexibly follow that no legal infirmity attached thereto and the transaction was in essence, legally valid and enforceable. All that, therefore, remains for adjudication is as to what would be the period of limitation for the redemption of such a valid oral mortgage." ;