Supreme Court: No Limitation Period In Case Of A Usufructuary Mortgage

 The plaintiff is in appeal before this Court.

The plaintiff is the Mortgagee under Ram Lal,

Mortgagor. The grievance of the appellants is that

the Mortgage was 45 years before filing of the suit,

therefore, they have become owners of the suit

property. The Full Bench of Punjab and Haryana High

Court, in “Ram Kishan & Ors. Vs. Sheo Ram & Ors.”,

has held that there is no limitation period in case

of usufructuary mortgage. “Once a mortgage always a

mortgage” was the principle applied. The said

Judgment has been upheld by this Court in “Singh Ram

(D) Through LRS Vs. Sheo Ram & Ors.” reported in

(2014) 9 SCC 185.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1541 OF 2011

RAM RATTAN  Vs DEVI RAM 

Dated: OCTOBER 07, 2021.

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When usufructuary mortgagee shall be entitled to evict tenant from tenanted premises?

Whether the expression 'landlord' in Sub-section (1) of Section 13 of the Act cannot be said to include 'an usufructuary mortgagee' where the tenanted premises is the subject of usufructuary mortgage, is the question which requires our answer in the light of the provisions of the Act. As could be seen from the definition of 'usufructuary mortgage' in Clause (d) of Section 58 of the Transfer of Property Act, 1882 - the T.P. Act, an usufructuary mortgagee is a transferee of a right to possession of the mortgaged property and the right to receive the rents and profits accruing from such property. When a lessor of a leased property creates an usufructuary mortgage in respect of such property what he transfers under Section 109 of the T.P. Act as a mortgagor in favour of the usufructuary mortgagee includes his right to possession of such property and the right to receive the rents and profits accruing from it. Thus Section 109 of the T.P. Act entitles the usufructuary mortgagee from the lessor, as against the lessee, for all rights which the lessor had against such lessee. From this, it follows that tenanted premises, if is mortgage by the landlord by way of usufructuary mortgage, the usufructuary mortgagee thereunder would become entitled to receive the rents and profits accruing from such property in his own right and on his own account. Clause (3) of Section 5 of the Act which contains the definition of 'landlord', states that under the Act 'landlord' means any person who is for the time being receiving or entitled to receive rent in respect of any premises on his own account and includes any person not being a tenant who from time to time derives title under a landlord, unless (here is anything repugnant to the subject or context. There, comes Section 13(1) of the Act entitling landlord to recover possession of any premises from his tenant on the ground envisaged under Clause (c) thereof, that is, the tenant or any person residing with the tenant being guilty of conduct which is a nuisance or annoyance to the adjoining or neighbouring occupiers, and that Section 13(1) contains nothing repugnant in its subject or context which would disentitle an usufructuary mortgagee, as a landlord of the tenanted premises to recover its possession from the tenant on the said ground. Further, if the legislative intendment was that the usufructuary mortgagee was not to be regarded as a landlord for recovering possession of a tenanted premises on any of the grounds envisaged under Sub-section (1) of Section 13 of the Act, it would not have omitted to state so, expressly, particularly when it had been so stated in Clause (b) of the explanation to Sub-section (2) of Section 13 of the Act, as regards 'rent farmer' or a 'rent collector' or an 'estate manager' who would have been otherwise a landlord entitled to recover possession of a tenanted premises from the tenant under Clause (g) of Sub-section (1) of that section.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 447 of 1982

Decided On: 18.03.1993

Narpatchand A. Bhandari

Vs.

Shantilal Moolshankar Jani and another

Hon'ble Judges/Coram:

N.M. Kasliwal and N.G. Venkatachala, JJ.

Citation:(1993) 3 DCC 351

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How to ascertain limitation for redemption of usufructuary mortgage?

On the question of limitation on redemption of
usufructuary mortgage, the High Court has placed reliance on
Sampuran Singh & Others Vs. Niranjan Kaur & Others reported in
(1999) 2 SCC 679 and Prabhakaran & Others Vs. M. Azhagiri
Pillai reported in (2006) 4 SCC 484. The position taken by
the High Court in those decisions has been held to be no more
good law in Singh Ram Vs. Sheo Ram and Others reported in

(2014) 9 SCC 185 wherein it has been held that the starting
point of limitation for redemption of usufructuary mortgage
should run from the date the mortgage money is paid or is
otherwise satisfied.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 788-789 OF 2016

MOHAN LAL
 V
MOHAN LAL.
Dated:JANUARY 29, 2016

Citation:(2016) 13 SCC 90

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