K.KANNAN, J. - (1.) CM No.8109 -C of 2011 in RSA No.2628 of 1982 Application for impleadment of legal representatives of respondent No.7 is allowed. Registry to carry out necessary amendment in the memo of parties. I. Common point of law - Issue of limitation for redemption of usufructuary mortgage All the above cases evoke a common question of law, namely, the starting point for the limitation for institution of suit for redemption of use of a decree of mortgage. In some cases, the suits have been at the instance of mortgagees seeking for declaration that the property had become vested in them, since the mortgagors have not redeemed the mortgage within time. The issue would all be considered on a single approach of whether there is any bar for a mortgagor or a successor -in -interest to claim a redemption or recovery of possession to the property held by a mortgagee or a successor. With an express provision like Article 61 of the Limitation Act, 1963 that spells a period of limitation, the answer would seem obvious that there does exist a period of limitation but the controversy surrounds on understanding the starting point of limitation. The question would rather be how to assess the starting point for computation for period of limitation for a suit for redemption of a usufructuary mortgage The corollary to this question would be whether the continuation in possession by a mortgagee or a successor beyond a peViod of 30 years would foreclose the right of a mortgagor or the successor to redeem or recover possession of the property and vest the property in the mortgagee himself as a full owner. II. RSA 1708 and 1709 of 1983: Possession under usufructuary mortgage is an admitted fact, although the document of mortgage with full details of mortgage are not filed (Subsidiary issue 1)
(2.) IN RSA Nos.1708 and 1709 of 1983, there are other incidental issues which could be disposed of immediately before undertaking the exercise on issue relating to limitation for redemption. There were two suits, one at the instance of the mortgagee's representative, seeking for a declaration that he has become the owner of the property by the failure of the mortgagor to redeem the property within 60 years under the law of Limitation Act of 1908 and other issue was at the instance of the representative of the mortgagor seeking for recovery of possession of property on an offer to pay the mortgage money. The mortgagor claimed in the said suit that he had also made the payment and acknowledged by mortgagee through receipt dated 28.02.1979. The document of mortgage was not filed, but there is no dispute about the fact that there existed a mortgage and the same was recorded in the revenue entries. I am not, therefore, detaining the case for consideration of when the document of mortgage was executed. III. Redemption of Mortgages Suit 1913, not a bar to civil action for redemption (Subsidiary issue 2) The learned senior counsel Mr. Kanwaljit Singh, appearing on behalf of the mortgagee contended that there is a specific procedure prescribed under the Redemption of Mortgage's Act of 1913 and the suit for redemption could not have been filed. I would discard ths objection as not tenable in law, for, even as per the Preamble to the Act, it is stated that "An Act to provide a summary procedure for the redemption of certain mortgages of land in Punjab". The Act merely provides for a summary procedure for adjudicating on the rights of the mortgagor and the mortgagee and the authority constituted under the Act can either take a decision in a summary fashion or if he is of the view that the case involves serious disputed question, he can refer the party to a Civil Court. Section 13 of the Act reads as follows: "Saving of suits to establish rights Sec 13: Any party aggrieved by an order made under section 6,7, 8, 9, 10 or 11 of this Act may institute a suit to establish his rights in respect of the mortgage, but subject to the result of such suit, if any, the order shall be conclusive. Notwithstanding anything in this section a mortgagee against whom an ex - parte order under section 7 has been made or a petitioner, whose petition has been dismissed in default under section 6 may apply to the Collector to have such order or dismissal set aside, such order or dismissal on such terms as to costs or otherwise as he may deem fit; provided that the order or dismissal shall not be set aside unless notice of the application has been served on the opposite party." The scheme of the Act is very clear that a Civil Court's jurisdiction is not excluded in any way. In Chanan Singh v. Gurjit Singh - (2005 -1)139 PLR 373, this court has held that even a rejection of a petition for redemption by the Collector under the 1913 Act will not bar a suit for redemption of mortgage in a civil suit. The objection regarding the maintainability of the suit for redemption ought to, therefore, fail and give way for an adjudication on the core controversy. IV. Issue of fact regarding of validity of mortgage receipt - trial Court's finding restored (Subsidiary issue 3)
(3.) IT is also contended that the mortgage receipt relied on by the mortgagor was a fabrication and in any event it required registration and an unregistered receipt purporting to extinguish a mortgage could not be acted on by the Court. The trial Court had found that the mortgage receipt was not genuine and by the very look of it, it showed that the recitals had been deliberately spaced out unevenly to fill up the entire gap from the top of the page to the place where the signature was found in the document. Thetrial Court had also taken note of the fact that there had been a previous litigation where both the mortgagor and the mortgagee had some common interest and while conducting the case, he had left some blank signed papers which had been fraudulently used by the mortgagor to make it appear as though that mortgagee had acknowledged the execution of the mortgage. The trial Court also took special notice of the fact that the mortgage receipt had been pasted with the thick sheet at the back to prevent any minute appraisal of a later pasting of the revenue stamp or to conceal any blotting of ink arising on account of user of an old paper. The trial Court also took note of the fact that the revenue stamp itself had been affixed somewhere at the middle of the page and there were writings above and beneath the revenue stamp. There was simply no possibility for someone to make the recitals of the receipt by fixing the revenue stamp on the middle of the page and securing the signature at the foot of the page. All the physical features noted by the trial Court discredited the document. Although purely factual, I am setting this out only to observe that the Appellate Court had been perverse in its approach in setting aside these findings to hold that the mortgage receipt was genuine. I reverse the finding to set the record straight. In the view that I ultimately take on the legal issue, the validity of receipt itself may not have any bearing. V. Inadmissibility of unregistered mortgage receipt (Subsidiary issue 4);