R.P NAGRATH, J. (ORAL)
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 v. Sheo Ram, 2008 (1) RCR (Civil) 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.
4. Learned counsel for the appellants contends that the mortgage in the instant case was not usufructuary mortgage but an anomalous mortgage. However, the terms of mortgage deed are very clear that the mortgagee would remain in possession and enjoy usufruct of the property and no period of redemption was fixed. Learned lower Appellate Court observed as under:-
“15. Section 58(d) of the Transfer of Property Act, 1882 defines usufructuary mortgage. The ingredients sin qua non for the creation of usufructuary mortgage are that, “the mortgagor delivers the possession……… of the mortgaged property to the mortgagee and authorizes him to retain such possession until the payment of mortgage money and to receive the rents and profits accruing from the property.” If these ingredients are satisfied then the mortgage deed is usufructuary even though, in it there is no provision qua the rate of interest and its appropriation.
16. The perusal of mortgage deed Ex. P3 shows that the mortgagor delivered the possession of the mortgaged property i.e suit land to the mortgagee and authorized him to retain such possession until the payment of mortgage money and to receive rents and profits accruing from the property. Therefore the mortgage deed Ex. P3 is an usufructuary mortgage and the above stated argument made by the counsel for the plaintiffs is devoid of merit………”
5. The view taken by Full Bench of this Court in Ram Kishan' case (supra) was also affirmed by the Hon'ble Supreme Court in Singh Ram (D) through LRs v. Sheo Ram, JT 2014 (9) SC 404.
6. In view of the above, no substantial question of law has arisen in the instant appeal.
7. Dismissed.