LexSINGH RAM (D) THR. L.RS. versus SHEO RAM & ORS.
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A B [2014] 14 S.C.R. 1412 SINGH RAM (D) THR. L.Rs. v. SHEO RAM & ORS. (Civil Appeal No. 5198 of 2008) AUGUST 21, 2014 [T. S. THAKUR, C. NAGAPPAN AND ADARSH KUMAR GOEL, JJ.] ' c Limitation Act, 1963- Schedule, Article 61 - Limitation for redemption of usufructuary mortgage - Invocation of - Held: Right of usufructuary mortgagor is equitable as well as statutorily recognized right- Usufructuary mortgage is distinct from other mortgage- Special right of usufructuary mortgagor 0 u/s. 62 of Transfer of Property Act to recover possession commences when mortgage money is paid out of usufructs or partly out of usufructs and partly on payment by the mortgagor - Therefore, in case of usufructuary mortgage mere expiry of 30 years does not extinguish the right of the E mortgagor and consequently does not entitle the mortgagee ownership on the mortgaged property- Transfer of Property Act, 1882 - ss. 58, 60 and 62. Dismissing the appeals, the court HELD: 1. Special right of usufructuary mortgagor F u/s. 62 of Transfer of Property Act, to recover possession commences in the manner specified therein, i.e., when 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, limitation does not start for G purposes of Article 61 of the Schedule to the Limitation Act. A usufructuary mortgagee is not entitled to file a suit for declaration that he had become an owner merely on the expiry of 30 years from the date of the mortgage. [Para 15][1450-C-E] H 1412 SINGH RAM (D) THR. L.Rs. v. SHEO RAM & ORS. 1413 2. The right of usufructuary mortgagor to recover A possession is specially dealt with under Section 62 of Transfer of Property Act. The said right of usufructuary mortgagor though styled as 'right to recover possession' is for all purposes, right to redeem and to recover possession. Thus, while in case of any other mortgage, B right to redeem is covered under Section 60, in case of usufructuary mortgage, right to recover possession is dealt with under Section and commences on payment of mortgage money out of the usufructs or partly out of the usufructs and partly on payment or deposit by the C mortgagor. This distinction in a usufructuary mortgage and any other mortgage is clearly borne out from provisions of Sections 58, 60 and 62 of the T.P. Act read with Article 61 of the Schedule to the Limitation Act. Usufructuary mortgage cannot be treated at par with any o other mortgage, as doing so will defeat the scheme of Section 62 of the T.P.Act and the equity. This right of the usufructuary mortgagor is not only an equitable right, it also has statutory recognition u/s. 62 of the T.P. Act. There is no principle of law on which this right can be defeated. E Any contrary view, which does not take into account the special right of usufructuary mortgagor u/s. 62.of the T.P. Act, has to be held to be erroneous on this ground or has to be limited to a mortgage other than a usufructuary mortgage. Therefore, in case of usufructuary mortgage, F mere expiry of a period of 30 years from the date of creation of the mortgage does not extinguish the right of the mortgagor u/s. 62 of the T.P. Act. [Para 12] [1427-D-H; 1428-A-C] . Harbans v. Om Prakash (2006) 1 SCC 129 : 2005 G (5) Suppl. SCR 141; State of Punjab & Ors. v. Ram,Rakha & Ors. (1997) 10SCC172: 1997 (1) SCR' 1022; Seth Gangadhar v. Shankar Lal 1959 SCR 509; Parichhan Mistry (Dead) by L.Rs. &Anr .. v. Acchiabar Mistry & Ors. (1996) 5 SCC 526: H 1414 A B c D E F G H SUPREME COURT REPORTS [2014] 14 S.C.R. 1996 (5) Suppl. SCR 161 ; Achaldas Ourgaji Oswa/ (Dead) Thr. L.Rs. v. Ramvi/as Gangabisan Heda (Dead) Thr. L.Rs. & Ors. (2003) 3 SCC 614: 2003 (1) SCR 340; Prithi Nath Singh v. Suraj Ahir (1963) 3 SCR 302; Hamza bi & Ors. v. Syed . Karimuddin & Ors. 2001 (1) S~C 414: 2000 (5) Suppl. SCR 99; Sampuran Singh & Ors. v. Niranjan Kaur (smt.) & Ors. (1999) 2 SCC 679: 1999 (1) SCR 841 - relied on. Sampuran Singh & Ors. vs. Niranjan Kaur (smt.) & Ors. (1999) 2 sec 679: 1999 (1) SCR 841 - approved. Prabhakaran & Ors. v. M. Azhagiri Pillai & Ors. (2006) 4 SCC 484: 2006 (3) SCR 28; Bhandaru Ram (D) Thr. L.R. Ratan Lal v. Sukh Ram AIR 2012 (H.P.) 1 (FB)- disapproved. Jayasingh Dhyanu Mhoprekar & Anr. v. Krishna Babaji Patil & Anr. 1985 (4) SCC 162: 1985 (2) Suppl. SCR 308 - distinguished. Rama Prasad v. Bishambhar Singh AI
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