A single judge bench of the Madras High Court comprising Justice R. Vijayakumar was dealing with the legal question of whether a mortgage deed would amount as a usufructuary mortgage or not and whether Article 137 of the Limitation Act would apply on usufructuary mortgagor’s right to a final decree application or not. Justice Vijayakumar answered the aforementioned in negative and adjudicated upon certain more aspects regarding the same.
Brief Facts:
The ancestors of the respondents herein had filed a petition for the relief of redemption of mortgage and recovery of possession on payment of Rs.96.97. The said suit was decreed and a preliminary decree was passed directing the plaintiffs therein to deposit the said sum of Rs.96.97 on or before 08.11.1982 or on any other date which is extended by the Court. The said decree was challenged by the defendants in A.S.No.68 of 1983 before the Sub Court, Kuzhithurai and the same was dismissed on 31.01.1984. The defendants had filed S.A.No.1333 of 1984 before the High Court and the same was also dismissed on 02.02.2003. The plaintiffs/decree holders in the redemption suit had filed I.A.No.153 of 2006 seeking to condone the delay in depositing the mortgage money.
The trial Court arrived at a finding that the mortgage being a usufructuary mortgage, the right of redemption does not get extinguished due to default in deposit of the mortgage money within the time specified by the Court and proceeded to condone the delay in depositing the mortgage money. This order is under challenge in the revision petition.Contentions of the Revision Petitioners:
The petitioners contended that the mortgage deed was not an usufructuary mortgage, but it was Othi/Kuzhikanam and therefore, it was an anomalous mortgage. Hence, the findings of the trial Court that the mortgage being usufructuary mortgage, there is no limitation for depositing the amount, is not legally sustainable. Being an anomalous mortgage, the plaintiffs/decree holders ought to have filed an application for passing of final decree within a period of 3 years from the date of payment of amount as fixed by the Court. Since the amount has not been deposited, the decree holders would not be entitled to file a final decree application, in view of the fact that it is barred under Section 137 of the Limitation Act. Without mentioning the exact number of days and explaining the reasons for the delay, the application ought not to have been allowed by the trial Court. The final decree proceedings have already been numbered without even depositing the mortgage money and therefore, the present application seeking to deposit the mortgage money is not maintainable. The petitioners had relied upon the judgements of the Hon'ble Supreme Court reported in Kuchiyan Govinda Swami Vs. Kalliani Amma Lakshmi Amma (dead) and others AIR 1966 SC 1937 to contend that the Kuzhikanam will not amount to usufructuary mortgage as defined in the Transfer of Property Act. Therefore, the trial Court was not right in considering the said mortgage as a usufructuary mortgage and condoning the delay in depositing the mortgage money.
Contentions of the Respondents:
The respondents contended that the plea that it is not an usufructuary mortgage cannot be raised after passing of the preliminary decree. The second appeal was disposed of by this Court only on 02.02.2003 and thereafter, the present application has been filed to condone the delay in depositing the mortgage money. The mortgage being usufructuary mortgage in nature, there is no limitation for depositing the mortgage money and the right of the mortgagor to redeem the property would not get distinguished for non-payment of the mortgage money within a time specified in the trial Court decree. The decree holders were under the impression that the mortgage money was deposited before the Court by way of lodgement schedule in the year 1966 itself, immediately after passing of the preliminary decree by the trial Court. Thereafter, the suit was taken up to the second appeal and the second appeal was disposed of only in the year 2003. Therefore, the decree holders were not able to trace the date of deposit of the mortgage money and therefore, they have filed the present application by way of abundant caution to condone the delay in depositing the mortgage money.
Observations of the Court:
As per the court, the suit had been laid for redemption of usufructuary mortgage by the plaintiffs. That is why the contention of the revision petitioners in this regard was rejected. It was not brought on record that it is not an usufructuary mortgage, but only an anomalous mortgage was raised before the First Appellate Court or before the second Appellate Court. Therefore, the Court was of the opinion that the defendants/judgement debtors cannot dispute the type of mortgage after passing of the preliminary decree.
Relying on the Supreme Court judgment in the case of Singh Ram (dead) through legal representative vs Sheo Ram and others (2014) 9 SCC 185 and perusing Section 62 of the Transfer of Property Act, the court held that the right of the usufructuary mortgagor to recover possession commences only when the mortgage money is paid out of rents and profits or partly out of rents and profits and partly by payment or deposit by mortgagor. Until then, the limitation does not start for purposes of Article 61 of the Schedule to the Limitation Act. Therefore, the usufructuary mortgagor's right to file a final decree application is not governed by Article 137 of the Limitation Act. Therefore, it was clear that the right of the usufructuary mortgagor to redeem the property does not get extinguished due to non-payment of the mortgage money within the time fixed by the Court.
Additionally, the court acknowledged that considering the fact that the mortgage in question was a usufructuary mortgage and the trial Court decree itself pointed out that the plaintiffs/decree holders have to deposit the amount before 08.11.1982 or within the time extended by the Court, the contention of the revision petitioners was rendered unsustainable.
Further relying on K.Parameswaran Pillai (dead) vs K.Sumathi alias Jesis Jessie Jacquiline and another (1993) 4 SCC 431, the bench reiterated that in the case of preliminary decree for redemption of usufructuary mortgage, no limitation begins to run until deposit is made though there is a conditional preliminary decree. Therefore, the Court was of the considered opinion that the filing of an application to condone the delay in depositing the mortgage money was superfluous and the mortgagor/decree holder could have directly deposited the amount.
The decision of the Court:
The trial court judgment was upheld and the revision petition was dismissed.
Case Title: Veeri Ummal and others vs Rajindran Babu and others
Coram: Justice R. Vijayakumar
Case No.: C.R.P.(NPD)(MD). No.1529 of 2012 and MP(MD). No.1 of 2012
Advocate for the Petitioners: Mr. K.N. Thambi
Advocate for the Respondents: Mr. T. Selvakumaran (For R1-R5)
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