The JAMMU AND KASHMIR RESTITUTION OF MORTGAGED PROPERTIES ACT, 1976

RESTITUTION OF MORTGAGED
PROPERTIES ACT, 1976
( Act No. XIV of 1976)

THE JAMMU AND KASHMIR RESTITUTION OF
MORTGAGED PROPERTIES ACT, 1976
(Act. No. XIV of 1976)
CONTENTS
SECTION.
1. Short title, extent and commencement.
2. Mortgage of immovable  property to which this Act applies
3. Definitions.
4. Jurisdiction to hear petitions.
5. Suits for redemption or foreclosure to be tried as petitions under this Act.
6. Stay of proceeding in suits and executions of a decree for ejectment or arrears
of rent against the mortgagors before  the Civil Courts.
7. Petitions for restitution.
8. Power of transfer.
9. Procedure for dealing with petition for restitution.
10.  Petition when to be dismissed
11. Power of the Tribunal to order restitution of mortgaged property.
12. Deposit of amount due by the mortgagor.
13. Power of the Tribunal.
14. Appeal and revision.
15. Limitation for appeal.
16. Jurisdiction of Civil Courts barred.
17. Rule making power.
18. Effect of provisions inconsistent with enactment.
19. Repeal and saving.
________
   THE JAMMU AND KASHMIR RESTITUTION OF
MORTGAGED PROPERTIES ACT, 1976
(Act No. XIV  of 1976)
[Received the assent of the Governor on 21st April, 1976 and published
in Government Gazette, dated 23rd April, 1976 ( Extra).]
An Act to provide for the restitution of certain mortgaged properties
in 1[the Union territory of Jammu and Kashmir].
Be it enacted by the Jammu and Kashmir State Legislature in the Twenty-
seventh year of the Republic of India as follows :—
1. Short title, extent and commencement. ––(1) This Act may be called
the Jammu and Kashmir Restitution of Mortgaged Properties Act, 1976.
(2) It shall extend to the whole of 1[the Union territory of Jammu and
Kashmir].
2[(3) It shall come into force on such date as the Government may, by
notification in the *[Government Gazette], appoint.]
2. Mortgages of immovable property to which this Act applies. ––(1)
Notwithstanding anything contained in any Law for the time being in force,
this Act shall, subject to the provisions of sub-section (2) apply to—
(a) a mortgage of immovable property with or without  possession
whether in writing and registered under 3[the Registration Act, 1908
(16 of 1908)] or not, in which principal money or the value of the
goods actually advanced by the mortgagees to the mortgagor does
not exceed ten thousand rupees and which is subsisting on the date
this Act comes into force ; and
(b) a mortgage securing lone for purposes of building of a house-boat
regardless of the amount of the principal money or the value of the
goods actually advanced by the  mortgagee to the mortgagor and
which is subsisting on the date this Act comes into force.
RESTITUTION OF MORTGAGED PROPERTY ACT, 1976391
1. Substituted for “the State of Jammu and Kashmir” by S.O. 1229(E) dated 31.03.2020.
2. Enforced vide SRO-802 dated 23rd of October, 1976 w.e.f. 26th January, 1977.
* Now Official Gazette.
3. Substituted by S.O. 1229(E) dated 31.03.2020 for “the Jammu and Kashmir Registration Act,
Samvat 1977”.
392 RESTITUTION OF MORTGAGED PROPERTY ACT, 1976
Explanation 1.—Mortgage in clause (b) shall include pledging of a houseboat
also.
Explanation 2.—In this sub-section the expression ‘value of the goods’ shall
mean the value agreed upon by  the parties and, where there
is no such agreement, the value to be determined by the
Tribunal according to the market rates prevailing at the time
the goods were actually advanced.
(2) Nothing is this Act shall apply to—
(i) mortgage of  lands  for  which  provisions  for  redemption have
been made in Jammu and Kashmir Agrarian Reforms Act, 1976 ;
(ii) mortgages held by the State Land Development Bank, or Land
Development Bank as defined in the Jammu and Kashmir Co-
operative Societies Act, 1960* 1[or any institution  mentioned in
section 4 (A) of the Jammu and Kashmir Alienation of Land Act,
Svt, 1995] 2[x x x x] ;
(iii) mortgages held by or on behalf of  3[the Lieutenant Governor or
the Government of the Union territory of Jammu and Kashmir] ;
(iv) mortgages held by or on behalf of President of India or the
Government of India ; and
(v) mortgages held by or on behalf of such other institutions  in the
4[Union territory of Jammu and Kashmir] as may be notified by the
Government.
Explanation.— A mortgage shall be deemed to be subsisting notwithstanding
decree or order for its redemption or foreclosure or sale or
auction having been passed :
Provided that redemption or foreclosure  of sale or auction as the case
may be, has not taken place before the commencement of this Act.
* Now The Jammu and Kashmir Cooperative Societies Act, 1989.
1. In view of the repeal of the Act, the words within the brackets have become obsolete and need to be
deleted.
2. Omitted by S.O. 1229(E) dated 31.03.2020.
3. Substituted ibid.
4. Substituted ibid for “State”.
RESTITUTION OF MORTGAGED PROPERTY ACT, 1976 393
3. Definitions.–– In this Act unless there is anything repugnant in the
subject or context—
(i) “benefits” includes any payments made by the mortgagor in kind
or in cash ;
(ii) “Collector” means the officer designated as such under the Jammu
and Kashmir Land Revenue Act, Svt. 1996 ;
1[(iia)“Government” means the Government of the Union territory of
Jammu and Kashmir ;]
(iii) “mortgagor” and “mortgagee” respectively shall include the
assignee, successor-in-interest and legal representative of such
mortgagor or mortgagee, as the case may be ;
(iv) “prescribed” means prescribed by rules made under this Act ;
(v) “Subordinate Judge” means the Subordinate Judge appointed
under the Jammu and Kashmir Civil Courts Act, Svt. 1977 ;
(vi) the expressions “mortgage”, “mortgagor”, “mortgagee”,
“mortgage-deed” shall have the same meanings as are assigned
to them in 2[the Jammu and Kashmir Transfer of Property Act,
Svt. 1977] ; and
(vii) the words and expression used in this Act but not defined have
the meaning assigned to them in 3[the Transfer of Property Act,
1882 (4 of 1882)].
4. Jurisdiction to hear petitions.–– The Government may, by
notification empower a Collector, a Chairman of the Debt Conciliation
Board, appointed under the Jammu and Kashmir Debtors Relief Act, 1976
or a Judicial officer not below the rank of Subordinate Judge to act as the
Tribunal under this Act and to hear and dispose of all petitions under this
Act and may likewise determine the pecuniary and territorial jurisdiction
of the officers so empowered. The Tribunal shall, while exercising powers
under this Act, be deemed to be a Court.
1. Clause (iia) inserted by S.O. 1229(E) dated 31.03.2020.
2. Now the Transfer of Property Act, 1882 (4 of 1882).
3. Substituted by S.O. 1229(E) dated 31.03.2020 for “the Jammu and Kashmir Transfer of Property
Act, Samvat 1977”.
394 RESTITUTION OF MORTGAGED PROPERTY ACT, 1976
5. Suits for redemption or foreclosure to be tried petitions under this
Act. —(1) The provisions of this Act shall apply to all suits for redemption,
sale or foreclosure in respect of the mortgages specified in section 2 and
such suits shall be triable as petitions under this Act.
(2) Where in any such suit or any proceeding arising out of any such
suit, pending in any Court on the date  on which this Act comes into force,
the Court finds that the provisions of this Act apply thereto, such suit or
proceedings shall be transferred by that Court to the Tribunal exercising
jurisdiction in that area under this Act.
Explanation.— The word “proceeding” in this section and in section 8
shall include an appeal, an application for revision or review
and an application for execution.
6. Stay of proceeding in suits and execution of a decree for ejectment
or arrears of rent against the mortgagors before the Civil Courts.–– Where
possession of the mortgaged property is retained by the mortgagor as a tenant
on payment of rent, all proceedings in a suit by the mortgagee for ejectment
of such mortgagor from such property or for arrears of its rent, or for both,
or for execution of decree of ejectment or rent shall be stayed by the court,
in which such suit is pending, on receipt of an intimation from the Tribunal,
established under this Act, to the effect that an application under this Act is
pending in respect of the said mortgaged property.
7. Petitions for restitution. ––(1) Within six months from the
commencement of this Act or within such extended period as the Government
may, by a notification in the *[Government Gazette], specify in this behalf a
mortgagor to the mortgagee to whose property the provisions of this Act apply,
may present a petition to the Tribunal for restitution of the mortgaged property.
2[x x x x].
(3) Every petition made under this section shall be accompanied by such
Court-fee as may be notified by the Government and shall be verified in such
manner as may be prescribed.
8. Power of transfer.–– On the application of any of the parties and after
notice to the parties and after hearing such of them as desire to be heard or
suo moto without such notice the Revenue Minister may transfer any petition
for restitution  or other proceeding pending before any Tribunal to any other
Tribunal competent to try or dispose of the same.
* Now Official Gazette.
1. Sub-section (2) omitted by S.O. 1229(E) dated 31.03.2020.
RESTITUTION OF MORTGAGED PROPERTY ACT, 1976 395
(2) Where any petition for restitution or any other proceeding has been
transferred under sub-section  (1), the Tribunal, which thereafter hears such
petition or proceeding, may, subject to any special direction in the order of
transfer either re-hear it or proceed from the point at which it was transferred.
9. Procedure for dealing with petition for restitutions.–– On receipt of
such petition the Tribunal shall after such enquiry, as it may consider necessary,
record an order in writing giving reasons whether this Act applies or not to
the mortgage with respect to  which the petition is made.
10. Petition when to be dismissed.–– Where the Tribunal finds in a case,
other than the one transferred to it under section 5, that the mortgage is one
to which this Act does not apply, it shall dismiss the petition and such order
of dismissal shall, subject to the provisions of the section 14, be final.
11. Power of the Tribunal to order restitution of mortgaged property.––
(1) Notwithstanding anything contained in any other law for the time being
in force or any decree, Judgement or order of any Court where the mortgage
is one to which this Act applies and the Tribunal finds that the value of the
benefits enjoyed by the mortgagee, equals or exceeds the costs of improvements,
if any, effected by such mortgagee in accordance with the terms of the mortgage,
plus one and a half times the amount of the principal money, or the pecuniary
value of the goods actually advanced under the mortgage, it shall order in
writing—
(a) That the mortgage be extinguished ; and
(b) Where the mortgagee is still in  possession, that the mortgagor
be put into possession of the mortgaged property as against the
mortgagee and that the title deeds, if any be restored to the
mortgagor ; and
(c) Where the mortgagee has received  money in excess of one and
a half times the amount of the principal money, or the pecuniary
value of the goods  actually advanced, and the cost of such
improvements if any, that such excess amount be 1[recovered from
the mortgagee and paid to the mortgagor.]
(2) If in cases to which this Act applies, the Tribunal finds that the value
of the benefits enjoyed by the mortgagee while in possession, is less than the
cost of improvements, if any, effected by such mortgagee plus one and a half
1. Substituted by Act XXXIV of 1978, s. 2.
396 RESTITUTION OF MORTGAGED PROPERTY ACT, 1976
times the principal money or the pecuniary value of the goods actually advanced,
it shall, by order in writing and notwithstanding anything contained in any other
law for the time being in force, direct that the mortgaged property be restored
to the mortgagor and he be put in possession after payment of amount if any,
due to the mortgagee :
Provided that, in calculating the amount due interest shall not be charged
except on the principal money or the pecuniary  value of the goods actually
advanced, at a rate higher than 5 per cent per annum :
Provided further that the principal sum plus interest shall not exceed
one and a half items the principal sum or the pecuniary value of the goods
actually advanced :
Provided also that where a mortgagee has been in possession of the
mortgaged property for a  period of ten years or more, it shall be conclusive
proof of the fact that such mortgagee has received one and a  half times the
amount of the principal money or pecuniary value of the goods actually advanced
as well as the cost of improvement, if any.
12.  Deposit of amount due by the mortgagor. ––(1) Where the Tribunal
finds that any sum is due to the mortgagee under section 11, the Tribunal
may order the deposit of the amount found due from the mortgagor in such
instalment as the Tribunal, with due regard to the paying capacity of the
mortgagor, deems fit.
(2) In determining the amount due, the Tribunal shall, where the mortgagee
is in possession of mortgaged property, give credit to the mortgagor for the
value of the benefits to be enjoyed by the mortgagee during the period covered
by the instalments.
(3) The Tribunal may order that, in lieu of the deposit of the amount
found due, the mortgagee shall enjoy the profits of the mortgaged property
for such period, not exceeding ten years, reckoned from the date the
mortgagee came into possession of such property, as may be determined
by the Tribunal with due regard to the amount found due and the profits
accruing from the property.
(4) The mortgagor shall be deemed to have complied with the order of
deposit, if the whole of the amount found due is deposited within the period
covered by instalments.
(5) The provisions of this section and section 11 shall, in so far as they
are applicable, also apply to mortgages without possession.
RESTITUTION OF MORTGAGED PROPERTY ACT, 1976 397
13. POwer of the Tribunal. ––(1) The Tribunal may, after declaring the
rights of the mortgagee extinguish, eject the mortgagee and order delivery of
possession of the mortgaged property to the mortgagor. In case of resistance
the Tribunal may exercise all the powers conferred on a Civil Court by 1[rules
97 and 98 of order XXI of the Code of Civil Procedure, 1908 (5 of 1908)].
(2) Where the Tribunal orders recovery of excess amount from the
mortgagee under clause (c) of sub-section (1) of section 11, such recovery shall
be made as if such order were a decree for money passed by a Civil Court
and in executing such decree the Tribunal shall have all the powers of a civil
Court executing a decree.
14. Appeal and revision. ––(1) Any person aggrieved by a final order
of the Tribunal under this Act may appeal to an Appellate Authority appointed
by the Government and there shall be no further appeal. The memorandum of
appeal shall be accompanied by such Court-fee as may be notified by the
Government.
(2) Whenever it is made to appear to the Government that a case decided
finally by a Tribunal or an Appellate Authority involves a substantial question
of law or a question of public interest, it may call for the records of the case
and pass such order thereon as it thinks fit :
Provided that the Government shall not pass an order under this
sub-section against any person without giving him an opportunity of being
heard.
15. Limitation for appeal. ––(1) The period of limitation for an
appeal under section 14 shall be sixty days from the date of the order
appealed against :
Provided that period of limitation for appeal from persons residing in
the areas specified in section 7 of the Act shall be twice such period.
(2) In computing the period of limitation for an appeal under this section
the period requisite for obtaining copies of the order appealed against shall
be excluded.
(3) The provisions of section 5 of 2[the Limitation Act, 1963 (36 of
1963)], shall apply to all appeals under this Act.
1. Substituted by S.O. 1229(E) dated 31.03.2020.
2. Substituted ibid for “the Jammu and Kashmir Limitation Act, 1995”.
398 RESTITUTION OF MORTGAGED PROPERTY ACT, 1976
16. Jurisdiction of Civil Courts barred.–– No Civil Court shall have
jurisdiction to entertain any claim to enforce any right under a mortgage
declared extinguished under this Act or to question the validity of any
proceedings under this Act.
17. Rule making power. ––(1) The Government may make rules for the
purpose of giving effect to the provisions of this Act,
(2) In particular and without prejudice to the generality of the foregoing
power the Government shall make rules regulating or determining the following
matters, namely :—
(a) the presentation and verification of petitions under section 7 of this
Act ;
(b) The procedure by which the Tribunal shall deal with such petitions
under sections 9, 10, and 11, of this Act ;
(c) the procedure and principal by which  the Tribunal shall assess
the amount due under mortgage  and the value of the benefits
accruing to the mortgagee, while in possession ;
(d) the procedure for making the deposit provided by section 12 of
 the Act ;
(e) the procedure for enforcing ejectment of the mortgagee and delivery
of possession to the mortgagor under section 13 of this Act ;
(f) all other matters for carrying out generally the purposes of this
Act.
18. Effect of provisions inconsistent with enactment.–– The provisions
of this Act shall have effect notwithstanding anything inconsistent therewith
contained in any other enactment or in any instrument having effect by virtue
of any other enactment.
19. Repeat and saving. ––(1) The Jammu and Kashmir Restitution of
Mortgaged Properties Act, 2006 is hereby repeated.
(2) Notwithstanding such repeal, nothing is this Act shall effect or be
deemed  to effect  the previous  operation  of the Act  mentioned  in  sub-
section (1).
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