Sukhbir Singh Vs. Jagir Singh and ors. - Court Judgment

Excerpt:
- limitation act, 1963.[c.a. no. 36/1963]. sections 60 & 62: usufructuary mortgage right to seek redemption limitation held, the limitation of 30 years under article 61(a) begins to run when the right to redeem or the possession accrues. the right to redemption or recover possession accrues to the mortgagor on payment of sum secured in case of usufructuary mortgage, where rents and profits are to be set off against interest on the mortgage debt, on payment or tender to the mortgagee, the mortgage money or balance thereof or deposit in the court. the right to seek foreclosure is co-extensive with the right to seek redemption. since right to seek redemption accrues only on payment of the mortgage money or the balance thereof after adjustment of rents and profits from the interest thereof, therefore, right of foreclosure will not accrue to the mortgagee till such time mortgagee remains in possession of the mortgaged security and is appropriating usufruct of the mortgaged land towards the interest on the mortgaged debt. thus the period of redemption or possession would not start till such time usufruct of the land and the profits are being adjusted towards interest on the mortgage amount. in view of the said interpretation, the principle that once a mortgage, always a mortgage and, therefore, always redeemable would be applicable. the plea that after the expiry of the period of limitation to sue for foreclosure, the mortgagees have a right to seek declaration in respect of their title over the suit property would not be tenable. the mortgage cannot be extinguished by any unilateral act of the mortgagee. since the mortgage cannot be unilaterally terminated, therefore, the declaration claimed is nothing but a suit for foreclosure. it is equally well settled that it is not title of the suit, which determines the nature of the suit. the nature of the suit is required to be determined by reading all averments in plaint. such declaration cannot be claimed by ban usufructuary mortgagee. therefore, in case of usufructuary mortgage, where no time limit is fixed to seek redemption, the right to seek redemption would not arise on date of mortgage but will arise on date when mortgagor pays or tenders to the mortgagee or deposits in court, the mortgage money or the balance thereof. thus, it was held that once a mortgage always a mortgage and is always redeemable. -- transfer of property act, 1882 [c.a. no. 4/1882]. sections 60 & 62; usufructuary mortgage right to seek redemption limitation held, since the mortgage is essentially and basically a conveyance in law or an assignment of chattels as a security for the payment of debt or for discharge of some other obligation for which it is given, the security must, therefore, be redeemable on the payment or discharge of such debt or obligation. fact that at one point of time the mortgagor for one or the other reason mortgaged his property to avail financial assistance on account of necessities of life, the mortgagors right cannot be permitted to be defeated only on account of passage of time. the mortgagee remains in possession of the mortgaged property; enjoys the usufruct thereof and, therefore, not to lose anything by returning the security on receipt of mortgage debt. the limitation of 30 years under article 61(a) begins to run when the right to redeem or the possession accrues. the right to redemption or recover possession accrues to the mortgagor on payment of sum secured in case of usufructuary mortgage, where rents and profits are to be set off against interest on the mortgage debt, on payment or tender to the mortgagee, the mortgage money or balance thereof or deposit in the court. the right to seek foreclosure is co-extensive with the right to seek redemption. since right to seek redemption accrues only on payment of the mortgage money or the balance thereof after adjustment of rents and profits from the interest thereof, therefore, right of foreclosure will not accrue to the mortgagee till such time mortgagee remains in possession of the mortgaged security and is appropriating usufruct of the mortgaged land towards the interest on the mortgaged debt. thus the period of redemption or possession would not start till such time usufruct of the land and the profits are being adjusted towards interest on the mortgage amount. in view of the said interpretation, the principle that once a mortgage, always a mortgage and, therefore, always redeemable would be applicable. the plea that after the expiry of the period of limitation to sue for foreclosure, the mortgagees have a right to seek declaration in respect of their title over the suit property would not be tenable. the mortgage cannot be extinguished by any unilateral act of the mortgagee. since the mortgage cannot be unilaterally terminated, therefore, the declaration claimed is nothing but a suit for foreclosure. it is equally well settled that it is not title of the suit, which determines the nature of the suit. the nature of the suit is required to be determined by reading all averments in plaint. such declaration cannot be claimed by ban usufructuary mortgagee. therefore, in case of usufructuary mortgage, where no time limit is fixed to seek redemption, the right to seek redemption would not arise on date of mortgage but will arise on date when mortgagor pays or tenders to the mortgagee or deposits in court, the mortgage money or the balance thereof. thus, it was held that once a mortgage always a mortgage and is always redeemable. hemant gupta, j.1. this order shall dispose of f.a.o. no. 2167 of 2002, the appeal filed by the claimant, arising out of an application for the grant of compensation on account of the death of buffalo owned by the claimant.2. in a motor vehicular accident on 20.03.1999, the buffalo of the claimant met with an accident with the passenger bus belonging to the pepsu roadways transport corporation, patiala. the said buffalo succumbed to her injuries on 25.3.1999. the learned motor accident claims tribunal (hereinafter to be referred as 'the tribunal') on the basis of evidence led, returned a finding that the accident took place on account of rash and negligent driving of the bus by its driver. however, in respect of compensation, it was found that the buffalo was of murrah breed and was of seven years of age and, therefore, her value was rs. 10,000/-. the claimant was also granted compensation of rs. 20,000/- on account of loss of income, rs. 500/- as carriage charges and rs. 1,000/-on account of medical treatment (which appears to have been wrongly written as rs. 10,000/- in the award of the learned tribunal). thus, the learned tribunal awarded a total compensation of rs. 31,500/-.3. learned counsel for the offending bus has vehemently argued that the claimant cannot be awarded any compensation on account of loss of income. it was argued that the claimant can purchase buffalo on account of which compensation has been separately awarded. the said argument is misconceived. not only that the buffalo of the claimant remained under treatment for five days but also the buffalo which the claimant may purchase is not in a position to lactate immediately. therefore, for the loss of income on account of death of buffalo of the claimant, the claimant has to be compensated. thus, the assessment of rs. 20,000/- as loss of income to, the claimant on account of the death of his buffalo cannot be said to be excessive in any manner.4. the claimant has sought compensation of rs. 47,500/-. the said compensation is on account of expected income to the claimant from the buffalo. the claimant has been awarded rs. 31,500/- which includes the amount of loss of expected income. there is nothing on record which may warrant any higher compensation than the compensation awarded by the learned tribunal. such amount of compensation is, thus, adequate. therefore, i do not find any ground to interfere in the award rendered by the learned tribunal. consequently, both the appeal are dismissed.