Holding

In a usufructuary mortgage, the mortgagor’s right to recover possession (and redemption) – and thus the commencement of the limitation period under Article 61 – arises only when the mortgage money is paid out of the rents and profits or partly out of them and partly by the mortgagor, not merely on the expiry of 30 years.

Summary

The case involved a usufructuary mortgage executed in 1903 where the mortgagee claimed ownership after the statutory 30‑year limitation period had elapsed, while the mortgagor sought declaration of title by prescription. The trial and appellate courts held that, under Section 62 of the Transfer of Property Act, the mortgagor’s right to recover possession (and thus to redeem) only arises when the mortgage money is discharged out of the rents and profits or partly thereof and partly by the mortgagor, so the limitation period under Article 61 of the Limitation Act does not begin until that moment. The Supreme Court affirmed this view, rejecting the argument that mere expiry of 30 years extinguishes the mortgagor’s right and that the mortgagee can claim ownership by declaration. Consequently, the appeals were dismissed and the High Court’s decision upheld.

Issues considered

The date from which the limitation period under Article 61 of the Schedule to the Limitation Act, 1963 begins to run in a usufructuary mortgage.
Whether the expiry of the 30‑year period automatically extinguishes the mortgagor’s right of redemption and possession.
Whether a usufructuary mortgagee can claim ownership of the mortgaged property by a declaration after the limitation period has elapsed.

Legislation cited

Limitation Act, 1963s. Article 61
Transfer of Property Act, 1882s. 58, s. 60, s. 62

Subjects

usufructuary mortgagelimitation periodArticle 61Transfer of Property Actright of redemptionmortgageemortgagorequity of redemptionprescriptionmortgage law

Judgment

[2014] 14 S.C.R. 1412

A SINGH RAM (D) THR. L.Rs.
v.
SHEO RAM & ORS.
'
(Civil Appeal No. 5198 of 2008)
B
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 SUPREME COURT REPORTS [2014] 14 S.C.R.

A 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 .
B 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.)
c & 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
D 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.
E Rama Prasad v. Bishambhar Singh AIR 1946 All
400 - referred to.
CASE LAW REFERENCE
AIR 2012 (H.P.) 1 (FB) disapproved Para 8
F
2006 (3) SCR 28 disapproved Para 13
1985 (2) Suppl. SCR 308 distinguished Para 13
2005 (5) Suppl. SCR 141 relied on Para 13
1997 (1) SCR 1022 relied on Para 13
G
1959 SCR 509 relied on Para 13
1996 (5) Suppl. SCR 161 relied on Para 13
2003 (1) SCR 340 relied on Para 13.
H
SINGH RAM (D) THR. L.Rs. v. SHEO RAM & ORS. 1415

(1963) 3 SCR 302 relied on Para 13 A
AIR 1946All 400 referred to Para 13
2000 (5) Suppl. SCR 99 relied on Para 13
1999 (1) SCR 841 approved Para 13
B
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
5198 of 2008.
From the judgment and order dated 12.12.2007 passed
by the High Court of Punjab and Haryana in RSA No. 1029 of
1988. c
WITH
Civil Appeal Nos. 1113, 5562, 7573 and 8551 of 2009
Civil Appeal No. 9616 of 2010
Civil Appeal Nos. 5727 and 8132 of2011
D

Civil Appeal No. 5256 of 2012
Civil Appeal Nos. 7941, 7942, 7943, 7947, 7944, 7948,
7951, 7954, 7955, 7956-58, 7959, 6014 and 7953 of 2014
E
Mahabir Singh, Neeraj Kumar Jain, Sr. Advs., Nikhil Jain,
Gagan Deep Sharma, Aman Singhal, Preeti Singh, Vikram
Singh Gulia, Prem Malhotra, Rishi Malhotra, Ravneet Singh
Joshi, Sanjay Singh, Manoj Swarup, Akshat Goel, Karan
Kapoor, J.S. Bhatia, Vikas Upadhyay, AbhishekAtrey, Sanjay F
Sarin, Ms. Gagandeep Kaur, Ms. Manjusha Wadhwa,
Sudarshan Lal Aneja, Gagan Gupta, Shekhar Prit Jha, Sun ii
Puri, Vikrant Bhardwaj, R.K. Kapoor, Ms. Rekha Giri, Ranvijay,
Rajesh Sharma, Ravinder Kumar, Ms. Shalu Sharma, Ajay
Singh, Sushi! B., Yash Pal Dhingra, Anil Mittal, V. Sushant G
Gupta, Dr. Kailash Chand,AnisAhmed Khan, A. V. Palli, Mrs.
Rekha Palli, Umang Shankar, Ugra Shankar Prasad, P.K. Jain
and Debasis Misra, Advs., for the Appellant.
Mahendra Anand, Sr. Adv., J.P. Dhanda, Ms. Raj Rani
Dhanda, Vineet Dhanda, N.A. Usmani, Pratham Kant, H
1416 SUPREME COURT REPORTS [2014] 14 S.~.R.
1

A -Ms. Abha R. Sharma, Kundan Kr. Mishra, Nirmajeet Singh
. Sidhu, Sunil Kumar, Debasis Misra, Sanjeev K. Bhardwaj,
Manoj Joshi, Md. Shahid Anwar, K. Singhal, Siddharth Mittal,
Dr.(Mrs.) Vipin Gupta, Jagdev Singh Manhas, Gagan Gupta,
Parmanand Gaur; Mrs. Kanchan Kaur Dhodi, Ravindra
B KeshavraoAdsure, Prem Malhotra, Ugra ShankarPrasad and
BrijBhusan,Advs., for the Respondents.
· The Judgment of the Court was delivered by
'•· I . JI

ADARSH KUMAR GOEL, J. 1. Leave granted in SLPs.
c 2. These matters have been put up before this Be~ch in
pursuance of the order passed by a Bench of two Judges on
18.08.2008, as under:-
"As it appears that observations made by this Court in
D Prabhakaran & Ors. vs. M.-Azhagiri Pillai & Ors,,
reported in 2006 (4) sec 484, in regard to the
interpretation and/or application of Article 61 of the
Schedule appended to the Limitation Act, 1963 are
contrary to.the principles laid down by this Court in a large
number of decisions, including 'Jayasingh Dhyanu
E
Mhoprekar & Anr. vs. Krishna Babaji Patil & Anr.,
[1985 (4) sec
162] as also various decisions referred
to by the Full Bench of the High Court, we are of the
opinion that the matter should be heard by a larger
Bench."
F
Before adverting to the question of reconciling conflicting
opinions in various decisions, including the two decisions
referred to above, we consider.it appropriate to mention that
by the impugned judgment, the Full Bench of the High Court of
G Punjab and Haryanaat Chandigarh, considered the question
"whether there is any-time limit for_usufructuary mortgagor to
seek redemption?" and decided the said question in the
negative, in favour of the respondent- mortgagor as follows:-

H
SINGHRAM (D)THR. L.Rs. v. SHEO RAM &ORS. 1417
[ADARSH KUMAR GOEL, J.]

''Therefore, we answer the questions framed to hold that A
in case of usufructuary mortgage, where no time limit is
fixed to seek redemption, the right to seek redemption
would not arise on the datEj! of mortgage but will.arise on
the date when the mortgagor pays or tenders to the
mortgagee or deposits in Court, the mortgage money or B
the balance thereof. Thus, it is held that once a mortgage
always a mortgage and is always redeemable."
The correctness of the above view is the subjecfmatter
of consideration before this Court.
c
3. The predecessor of the respondents mortgaged the
suit property on 11.08.1903 to the predecessor of the
appellants for a sum of Rs.80/-. The appellant-plaintiffs filed a
suit for declaration that the suit land having not been redeemed
for a period of more than 60 years, the defendants lost all rights, D
title and interest therein and the appellants became the owners
by prescription.
4. The trial Court considered the matter under Issue No.2
and held that limitation starts rurJning from the date when the
mortgagee demands the money and the mortgagor refused E
the same. Dis~ussion on the sai(l issue is as follows:-
"There is merit in the second contention made on behalf
of the defendants. It is case of usufructuary mortgage
and in case of usufructuary mortgage and no period for F
the payment of mortgage amount was fixed. It is not the.
case of the plaintiffs that the plaintiffs ever made demand
for the mortgage amount and they refused. In this
situation, no cause of action could accrue to the plaintiffs,
which could only accrue on demand of the mortgage G
amount from the defendants and refusal of same by the
defendants. This view also finds support from the
decision in the case of Nilkanth Balwant Natu & Ors. vs.
Vidya Narasinh Bharathi Swami & Ors. AIR 1930 PC
188).
H
1418 SUPREME COURT REPORTS (2014) 14 S.C.R.

A The law laid down in several cases referred to by the
learned counsel for the plaintiffs relating to the
interpretation of provisions of Section 28 and Article 148
of the Limitation Act, does not apply on the facts of the
instant case at all as the periods of limitation is to run
B from the date on which the cause of action arises. In the
result, I hold that the plaintiffs have not become owners
of the suit land on the expiry of period of more than 60
years. Issue No.1 is thus decided in favour of the plaintiffs
and against the defendants, and Issue No.2 is decided
c against the plaintiffs and in favour of defendants."
The above view was affirmed by the appellate Court as
follows:-
"I find force in the contention of the learned counsel for
the respondents. The present one is a case of
D
usufructuary mortgage and in case of such a mortgage
no period of payment is fixed.A reading of the mortgage
deed would show that no time had been fixed. The
plaintiffs had nowhere pleaded that they ever made
demand forthe mortgage amount and it was refused. In
E
such a situation, the trial Court was right in coming to the
conclusion that no cause of action could accrue to the
plaintiffs which could only accrue on demand of the
mortgage amount from the defendants and the refusal of
the same by them. Reliance was rightly placed by the
F
trial court on Nilkanth Balwant Natu & Ors. vs. Vidya
Narasingh Bhorathiswami & Ors., AIR 1930 PC 188. No
contrary view law has been cited to persuade me to take
a contrary view."

G 5. On second appeal by the plaintiffs before the High
Court, the matter was directed to be placed before the Full
Bench to consider the following questions:-
"1. Whether the right to seek redemption would arise on
the date of mortgage itself in case of usufructuary
H mortgage when no time limit is fixed to seek redemption?
SINGHRAM(D)THR.L.Rs. v.SHEORAM&ORS. 1419
[ADARSH KUMAR GOEL, J.]

2. Whether there is any time limit in the case of a A
usufructuary mortgagor to get his property redeemed?"
6. The Full Bench held that in case of usufructuary
mortgage, limitation for r.ecovery of possession under Article
61 of the Limitation Act starts on payment of mortgage money
as provided under Section 62 of the Transfer of Property Act B
(for short 'the T.P. Act') and not from the date of mortgage.
Relevant observations are:-
" After considering the aforesaid judgments, we
respectfully agree with the view of the Full Bench of this c
Court in Lachhman Singh's case (supra) and that of
Patna High Court in Jadubans Sahai's case (Supra).
The provisions of Sections 60, 62 and 67 of the Transfer
of Property Act are not applicable within the jurisdiction
of this Court. Therefore, these provisions are required to 0
be interpreted keeping in view the principles of equity
and good conscience. Since the mortgage is essentially
and basically a conveyance in law or an assignment of
chattels as a security for the payment of debt or for
discharge of some other obligations for which it is given, E
· the security must, therefore, be redeemable on the
payment or discharge of such debt or obligation. That is
the view of the Hon'ble Supreme Court in Pomal Kanji
Govindji's case (supra) wherein it has also been held
that poverty should not be unduly permitted to curtail one's F
right to borrow money. Since at one point of time the
mortgagor for one or the other reason mortgaged his
property to avail financial assistance on account qf
necessities of life, the mortgagor's right cannot be
permitted to be defeated only on account of passage of
time. The interpretation sought to be raised by the G
mortgagee is to defeat the right of the mortgagor and is
wholly inequitable and unjust The mortgagee remains in
possession of the mortgaged property; enjoys the
usufruct thereof and, therefore, not to lose anything by
H
1420 SUPREME COURT REPORTS [2014] 14 S.C.R.

A returning the security on receipt of mortgage debt.
Section 60 of the Act is general in nature applicable to
all kinds of mortgages including usufructuary mortgage
which is evident from clause (b) of Section 60 of the Act,
where the mortgagee in possession of the mortgaged
B property is required to deliver possession to the
mortgagor. But Section 62 of the Act is a special
provision dealing only with the rights of usufructuary
mortgagor. In terms of clause( a) of Section 62 of the Act,
the suit is for possession after the mortgage comes to
c an end by self redeeming process as the mortgagee is
authorised to pay himself the mortgage money from the
rents .and profits of the property. The mortgagee has to
look to the rents and profits only to repay himself and
when his entire charge is so liquidated he must re-deliver
D possession of the mortgaged property to the mortgagor.
However, in terms of clause(b) of Section 62 of the Act,
the right of the mortgagor will arise only after rents and
profits derived by the mortgagee out of the usufruct of
the mortgaged property are adjusted towards the interest
E or the principal and on mortgagor paying the balance in
the manner prescribed. In such mortgages, rents and
. profits are to be set off against interest and the
mortgagee is entitled to retain possession until such time
as the mortgagor chooses to redeem on payment of the
F principal sum secured. Such right for possession will
accrue after the mortgage money is paid off.
. The limitation of 30 years under Article 61 (a) begins to
run "when the right to redeem or the possession accrues".
The right to redemption or recover possession accrues
G to the mortgagor on payment of sum secured in case of
usufructuary mortgage, where rents and profits are to be
set off against interest on the mortgage debt, on payment
or tender to the mortgagee, the mortgage money or
balance thereof or deposit in the court. The right to seek
H
SINGH RAM {D) THR. L.Rs. v. SHEO RAM & ORS. 1421
[ADARSH KUMAR GOEL, J.]

foreclosure is co-extensive with the right to seek A
redemption. Since right to seek redemption accrues only
on payment of the mortgage money or the balance
thereof after adjustment of rents and profits from the
interest thereof, therefore, right of foreclosure will not
accrue to the mortgagee till such time the mortgagee B
remains in possession of the mortgaged security and is
appropriating usufruct of the mortgaged land towards the
interest on the mortgaged debt. Thus, the period of
redemption or possession would not start till such time
usufruct of the land the profits are being adjusted towards C
interest on the mortgage amount. In view of the said
interpretation, the principle that once a mortgage, always
a mortgage and, therefore always redeemable would be
applicable.
The argument that after the expiry of period of limitation D
to sue for foreclosure, the mortgagees have a right to
seek declaration in respect of their title over the suit
property is not correct. From the aforesaid discussion, it
is apparent that the mortgage cannot be extinguished
by any unilateral act of the mortgagee. Since the E
mortgage cannot be unilaterally terminated, therefore, the
declaration claimed is nothing but a suit for foreclosure.
It is equally well settled that it is not title of the suit, which
determines the nature of the suit. The nature of the suit is
required to be determined by reading all the averments F
in the plaint. Such declaration cannot be claimed by an
usufructuary mortgagee.
Thus, we prefer to follow the dictum of law laid down by
the larger Bench in Seth Ganga Dhar's case(supra) G
as well as judgments of Hon'ble Supreme Court in
Jaysingh Dnyanu Mhoprekar's case(supra), Pomal
Kanji Govindji's case(supra), Panchannan
Sharma's case(supra) and Harbans's case(supra)
in preference to the judgments relied upon by the
H
1422 SUPREME COURT REPORTS (2014] 14 S.C.R.

A mortgagees in Prabhakaran's case(supra) and
Sampuran Singh's case (supra)."
. 7. We have heard learned counsel for the parties.
, 8. The main contention urged on behalf of the appellants
B is that the right of mortgagor to redeem is governed by Article
61 of the Schedule to the Limitation Act and the right to redeem
or recover possession accrues on the date of the mortgage
itself, unless a different time is agreed between the parties.
Since the mortgagor has right to redeem on payment of the
c mortgage money and there can be no restriction on the
mortgagor to exercise his right on the date of mortgage itself,
period of limitation starts on the date of mortgage and on expir)t
thereof, right to recover possession comes to an end. The
expiry of limitation not only bars the remedy but also the right
0 to seek possession as provided under Section 27 of the
Limitation Act. It is submitted that this Court has dealt with the
issue in Sampuran Singh & Ors. vs. Niranjan Kaur (smt.)
& Ors., (1999) 2 sec 679. There is no occasion to reconsider
the said view. Reliance is also placed on a Full Bench decision
E of the High Court of Himachal Pradesh in Bhandaru Ram
(D) Thr. L.R. Ratan Lal vs. Sukh Ram, AIR 2012 (H.P.) 1
(FB) wherein the impugned judgment of the Full Bench of the
Punjab and Haryana High Court has been expressly dissented
from and it has been concluded that the period oflimitation for 1.

F filing a suit for recovery of possession of immovable property
or redemption of usufructuary mortgage, which have not fixed ·
any time for repayment of mortgage money, is 30 years from
the date of mortgage, as prescribed under Article 61 of the
Schedule to the Limitation Act, 1963 (60 years under Article
148 as per indian Limitation Act, 1908). · ·
G
9. Learned counsel for the respondents support the view
taken by the High Court and submit that the usufructuary
mortgage was different from any other mortgage and the
person, who parts with possession of his property from rents
H
SINGH RAM (D) THR. L.Rs. v. SHEO RAM &ORS. 1423
[ADARSH KUMAR GOEL, J.]

and profits of which the mortgagee was entitled to recover the A
mortgage money, could not be placed at par with a mortgagor
who had not given possession of the property to mortgagee
and allowed the usufruct of the property to be used for payment
of mortgage money. In such cases, limitation could not run from
the date of mortgage but from the date mortgage money is B
paid out of rents and profits of the property to the knowledge
of the mortgagor or from the date of payment or deposit by the
mortgagor. Mere expiry of time from the date of mortgage could
not extinguish the right of redemption and to recover
possession. c
10. We have given our anxious consideration to the
question of law arising in the cases.
11. We are in agreement with the view taken in the
·· impugned judgment that in a usufructuary mortgage, right 0
to recover possession continues till the money is paid from
the rents and profits or where it is partly paid out of rents and
profits when the balance is paid by the mortgagor or deposited
in Court as provided under Section 62 of the T.P. Act.
12. It will be appropriate to refer to the statutory provisions E
of the T.P. Act and the Limitation Act:-
"T.P. Act
58. "Mortgage", "mortgagor", "mortgagee'',
"mortgage-money" and "mortgaged" defined. F
(a) A mortgage is the transfer of an interest in specific
immoveable property for the purpose of securing the
payment of money advanced or to be advanced by way
ofloan, an existing or'future debt, or the performance
of an engagement which may give rise to a pecuniary G
liability.
The transferor is called a mortgagor, the transferee a
mortgagee; the principal money and interest of which
payment is secured for the time being are called the.
H
,

1424 SUPREME COURT REPORTS '
[2014)14 S.C.R.

A mortgage-money, and the instrument (if any) by which
the transfer is effected is called a mortgage-deed.
'(b) Simple mortgage-Where, without delivering
possession of the mortgaged property, the mortgagor
B . binds himself personally to pay the inortgage-money,
· and agrees, expressly or impiiedly, that, in the event of
his failing to pay according to his contract, the
mortgagee shall have a right to cause the mortgaged
property to be sold and the proceeds of sale to be
c applied, so far as may be necessary; in payment of the
mortgage- money, the transaction is called a simple
mortgage and the mortgagee a simple mortgagee.
(c) Mortgage by conditional sale-Where, the mortgagor
D ostensibly sells the mortgaged property-
on condition that on default of payment of the mortgage-
mone y on a certain date the sale shall become
absolute, or
E 0n condition that on such payment being made the sale.
shall become void, or
on condition that on such payment being made the
buyer shall transfer the property to the seller,

F the transaction is called a mortgage by conditional sale
and the mortgagee a mortgagee by conditional sale:
PROVIDED that no such transaction shall be deemed
to be a mortgage, unless the condition is embodied in
· the document which effects or purports to effect the
G sale.
(d) Usufructuary mortgage-Where the mortgagor
delivers possession or expressly or by implication binds
himself to deliver possession of the mortgaged
property to the mortgagee, and authorizes him to retain
H
SINGH RAM (D) THR. L.Rs. v. SHEO RAM & ORS. 1425
[ADARSH KUMAR GOEL, J.]

such possession until payment of the mortgage-money, A
and to receive the rents and profits accruing from the
property or any part of such rents and profits and to
_ . appropriate the same in lieu of interest or in payment
of the mortgage-money, or partly in lieu of interest or
partly in payment of the mortgage- money, the B
·transaction is called a usufructuary mortgage and the
mortgagee a usufructuary mortgagee.
(e) English mortgage-Where the mortgagor binds
himself to repay the mortgage-money on a certain date,
and transfers the mortgaged property absolutely to the C
mortgagee, but subject to a proviso that he will re-
transfer it to the mortgagor upon payment of the
mortgage-money as agreed, the transaction is called
an English mortgage.
D
(f) Mortgage by deposit of title-deeds-Where a person
in any of the following towns, namely, the towns of
Calcutta, Madras, and Bombay, and in any other town
which the State Government concerned may, by
notification in the Official Gazette, specify in this behalf, E
delivers to a creditor or his agent documents of title to
immovable property, with intent to create a security
thereon, the transaction is called a mortgage by deposit
of title-deeds.
(g) Anomalous mortgage-A mortgage which is not a F
simple mortgage, a mortgage by conditional sale, a
usufructuary mortgage, an English mortgage or a
· mortgage by deposit of title-deeds within the meaning
of this section is ca/led an anomalous mortgage.
G
60. Right of mortgagor to redeem
At any time after the principal money has become due,
the mortgagor has a right, on payment or tender, at a
proper time and place, of the mortgage- money, to
H
1426 SUPREME COURT REPORTS [2014] 14 S.C.R.

A require the mortgagee (a) to deliver to the mortgagor
the mortgage-deed and all documents relating _to the
mortgaged property which are in the possession or
power of the mortgagee, (b) where the mortgagee is in
possession of the mortgaged property, to deliver
possession thereof to the mortgagor, and (c) at the cost
of the mortgagor either to re-transfer the mortgaged
property to him or to such third person as he may direct,
or to execute and (where the mortgage has been
effected by a registered instrument) to have registered
c an acknowledgment in writing that any right in
derogation of his interest transferred to the mortgagee
has been extinguished:
Provided that the right conferred by this section has not
been extinguished by the act of the parties or by decree
D ofa court.
xxx xxx xxx
62. Rightofusufructuary mortgagor to recover
possession
E In the case of a usufructuary mortgage, the mortgagor
has a right to recover possession of the property
together with the mortgage-deed and all documents
relating to the mortgaged property which are in the
possession or power of the mortgagee, -
F
(a) where the mortgagee is authorised to pay himself
the mortgage-money from the rents and profits of the
property,-when such money is paid;
(b) where the mortgagee is authorised to pay himself .
G from such rents and profits or any part thereof a part
only of the mortgage-money, when the term (if any)
prescribed for the payment of the mortgage-money has
expired and the mortgagor pays or tenders to the
mortgagee the mortgage money or the balance thereof
H or deposits it in court hereinafter provided.
SINGH RAM (D) THR. L.Rs. v. SHEO RAM & ORS. 1427
[ADARSH KUMAR GOEL, J.]

xxxxxxxxx A
Limitation Act:-
Art. 61 By a mortgagor

a) To redeem or . Thirty \11/hen the right to
recover years redeem or to B
possession of recover
immovable possession
property accrues
mortgaged
b) xxxxxxx xxxxxx xxxxxxxx c
'
'
(emphasis supplied)
A perusal of above provisions shows that Article 61 refers
·to right to redeem or recover possession. While right of D
mortgagor to redeem is dealt with under Section 60 of the T.P.
Act, the right of usufructuary mortgagor to recover possession
is specially dealt with under Section 62. Section 62 is
applicable only to usufructuary mortgages and not to any other
mortgage. The said right of usufructuary mortgagor though E
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, right to redeem is covered under Section
60, in case of usufructuary mortgage, right to recover
possession is dealt with under Section 62 and commences F
o.n payment of mortgage money out of the usufructs or partly
out of the usufructs and partly on payment or deposit by the
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 G
the Schedule to the Limitation Act. Usufructuary mortgage
cannot be treated at par with any 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 has statutory recognition under Section 62 H
1428 SUPREME COURT REPORTS [2014] 14 S.C.R.

A of the T.P. Act. There is no principle of law on which this right
can be defeated. Any contrary view, which does not take into
account the special right of usufructuary mortgagor under
Section 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
B usufructuary mortgage. Accordingly, we uphold the view taken
by the Full Bench that in case of usufructuary mortgage, mere
expiry of a period of 30 years from the date of creation of the
mortgage does not extinguish the right of the mortgagor under
Section 62 of the T. P. Act.
c 13. We may now refer to decisions of this Court.
(i) In Prabhakaran & Ors. vs. M. Azhagiri Pillai & Ors.,
(2006) 4 sec 484, suit of mortgagor for redemption was held
to be within limitation. However, in para 13, it was observed:-
D "13. Article 148 of the Limitation Act, 1908 (referred to·
as "the old Act") provided a limitation of 60 years for a
suit against a mortgagee to redeem or to recover
possession of immovable property mortgaged. The,
corresponding provision in the Limitation Act, 1963 ("the
E new Act" or "the Limitation Act" for short), is Article 61 (a)
which provides that the period of limitation for a suit by a
mortgagor to redeem or recover possession of the
immovable property mortgaged period of limitation
begins to run is 30 years. The when the right to redeem
F or to recover possession, accrues. In the case of a
usufructuary mortgage which does not fix any date for
repayment of the mortgage money, but merely stipulates
that the mortgagee is entitled to be in possession till
redemption, the right to redeem Would accrue
G immediately on execution of the mortgage deed and the
mortgagor has to file a suit for redemption within 30 years
from the date of the mortgage. Section 27 of the Limitation
Act provides that "at the determination of the period
hereby limited to any person for instituting a suit for
H
SINGH RAM (D) THR. L.Rs. v. SHEO RAM & ORS. 1429
[ADARSH KUMAR GOEL, J.]

possession of any property, his right to such property shall A
be extinguished". This would mean that on the expiry of
the period of limitation prescribed under the Act, 'the
mortgagor would lose his right to redeem and the
mortgagee would become entitled to continue in
possession as the full owner." B
The above observations do not take into account the
special right of usufructuary mortgagor under Section 62 of
the T.P. Act to recover possession which commences after
mortgage money is paid out of rents and profits or partly out of
rents and profits and partly paid or deposited by mortgagor. C
Thus, we are unable to accept the same as correct view in
law.
(ii) jn Jayasingh Dhyanu Mhoprekar & Anr. vs.
Krishna Babaji Patil &Anr., 1985 (4) SCC 162, the question D
of limitation for redemption was riot involved. Question was
wheti.er mortgagor's right of redemption was affected when
mortgaged larid was allotted to mortgagees by way of grant
under the provisions of the Bombay Paragana and Kulkarni
Watans (Abolition)Act, 1950, it was observed:- · E
"6. The.only question which arises for decision in this
case is whether by reason of the grant made in favour of
the defendants the right to redeem the mortgage can be
treated as having become extinguished. It is well settled
that the right of redemption under a mortgage deed can F
come to an end only in a manner known to law. Such
extinguishment of right can take place by a contract
between the parties, by a merger or by a statutory
provision which debars the mortgagor from redeeming
the mortgage. A mortgagee who has entered into G
possession of the mortgaged property under a mortgage
will have to give up possession of the property when the
suit for redemption is filed unless he is able to show that
the fight of redemption has come to an end or that the
H
1430 SUPREME COURT REPORTS [2014] 14 S.C.R. ·

A .suit is liable to be dismissed on some other valid ground.
This flows from the legal principle which is applicable to
all mortgages, namely "Once a mortgage, always a
mortgage" ..It is no doubt true that the father of the first
defendant and the second defendant have been granted
B occupancy right by the Prant Officer by his order dated
February 5, 1964 along with Pandu, the uncle of
Defendant 1. But it is not disputed that the defendants
would not have been able to secure the said grant in their
favour but for the fact that they were in actual possession
C of the lands. They were able to be in possession of the
one-half share of the plaintiffs in the lands in question.
only by reason of the mortgage deed. If the mortgagors
had been in possession of the lands on the relevant date,
the lands would have automatically been granted in their
D favour, since the rights of the tenants in the watan lands
were allowed to subsist even after the coming into force
of the Act and the consequent abolition of the watans by .
virtue of Section 8 of the Act. The question is whether the
position would be different because they had mortgaged
. E land with possession on the relevant date."
Apart from judgments mentioned in reference order,
reference may be made to some other judgments dealing with
the issue. ·
(iii) In Harbans vs. Om Prakash, (2006) 1 SCC 129,
F this Court upheld the view that limitation for redemption does
not start from date of mortgage in a usufructuary mortgage
and held that view in State of Punjab & Ors. vs. Ram Rakha
& Ors., (1997) iO sec 172 was contrary to earlier view in
G Seth Gangadhar vs. Shankar Lal, 1959 SCR 509. It was
observed:-
"7. Reference may be .made to certain paragraphs in
Seth Ganga Dhar v. Shankar Lal, 1959 SCR 509 which .
read as follows:
H
SINGH RAM (D) THR. L.Rs. v. SHEO RAM & ORS. 1431
[ADARSH KUMAR GOEL, J.]

"[4.] It is admitted that the case is governed by the A
Transfer of Property Act. Under Section 60 of that Act, .
at any time after the principal money has become due,
the mortgagor has a right on payment or tender of the
mortgage money to require the mortgagee to reconvey
the mortgaged property to him. The right conferred by B
this section has been called the right to redeem and
the appellant sought to enforce this right by his suit.
Under this section, however, that right can be exercised
only after the mortgage money has become due. In
Bakhtawar Begam v. Husaini Khanam,ILR (1914) 36 c
All 195 (IA at p. 89) also the same view was expressed
in these words:
'Ordinarily, and in the absence of a special condition ·
entitling the mortgagor to redeem during the term for
which the mortgage is created, the right of redemption D
can only arise on the expiration of the specified period.'
Now, in the present case the term of the mortgage is
eighty-five years and there is no stipulation entitling the
mortgagor to. redeem during that term. That term has E
not yet expired. The respondents, therefore, contend
that the suit is premature and liable to be dismissed.
•••
[6.] The rule against clogs on the equity of redemption
is that, a mortgage shall always be redeemable and a F
mortgagor's right to redeem shall neither be taken away
nor be limited by any contract between the parties. The
principle behind the rule was expressed by Lindley,
M.R. In Sant~ey v. Wilde, (1899) 2 Ch. 474 in these
words: G
'The principle is this: a mortgage is a conveyance of
land or an assignment of chattels as a security for the
payment of a debt or the discharge of some other
obligation for which it is given. This is the idea of a
H
1432 SUPREME COURT REPORTS [2014] 14 S.C.R.

A mortgage:. and the security is redeemable on the
payment or discharge of such debt or obligation, any
provision to the contrary notwithstanding. That, in my
opinion, is the law. Any provision· inserted to prevent
redemption on payment or performance of the debt or
B obligation for which the security was given is what is
meant by a clog or fetter on the equity of redemption and
is therefore void. It follows from this, that "once a
.. mortgage always a mortgage".'
[7.] The right of redemption, therefore, cannot be taken
c away. The courts will ignore any contract the effect of
which is to deprive the mortgagor of his right to 'redeem
the mortgage. One thing, therefore, is clear, namely, that
the term in the mortgage contract, that on the failure of
the mortgagor to redeem the mortgage within. the
D specified period of six months the mortgagor will have
no claim over' the mortgaged property, and the mortgage
deed will be deemed to be a deed of sale in favour of
the mortgagee, cannot be sustained. It plainly takes away
altogether, the mortgagor's right to redeem the mortgage
E after the specified period. This is not permissible, for
'once a. mortgage always a mortgage' and therefore
' always redeemable. The same result also follows from
Section 60 ofthe Transfer of Property Act. So it. was said
in Mohd. Sher Khan v. Seth Swami Dayal, AIR 1922 PG
F 17:
'An anomalous mortgage enabling a mortgagee after
a lapse of time and in the absence of redemption to
enter and take the rents in satisfaction of the interest
would be perfectly valid if it did not als9 hinder an existing
G
right to redeem. But.it is this that the present mortgage
undoubtedly purports to effect. It is expressly stated to
be for fiv~ -years, and after that period the principal
•.:. money became payable. This, under Section 60 of the
..
; ;
Transfer of Property Act, is the event on which the.
H
SINGH RAM (D) THR. L.Rs. v. SHEO RAM & ORS. 1433
[ADARSH KUMAR GOEL, J.]

mortgagor had a right on payment of the mortgage A
money to redeem.
[14.] In comparatively recent times Viscount Haldane,
L. C. repeated the same view when he said in G and C.
Kreglinger v. New Patagonia Meat and Cold Storage
Co. Ltd, 1914AC 25 (AC at pp. 35-36): B
'This jurisdiction was merely a special application ofa
more general power to relieve against penalties and to
mould them into mere securities. The case of the
common law mortgage of land was indeed a gross one. c
The land was conveyed to the creditor upon the
condition that if the money he had advanced to the
feoffor was repaid on a date and at a place named, the
fee simple would revest in the latter, but that if the ,
condition was not strictly and literally fulfilled he should D
lose the land forever. What made the hardship on the
debtor a glaring one was that the debt still remained
unpaifi and could be recovered from the feoffor
notwithstanding that he had actually forfeited the land
to the mortgagee. Equity therefore, at an early date E
began to relieve against what was virtually a penalty by
compelling the creditor to use his legal title as a security.
My Lords, this was the origin of the jurisdiction which
we are now considering, and it is important to.bear that
origin in mind. For the end to accomplish which the F
jurisdiction has been evolved ought to govern and limit
its exercise by·equity juqges. That end has always been
to ascertain, by para/ evidence if need be, the real ·
nature and substance of the transaction, and if it turned
out to be in truth one of mortgage simply, to place it on G
that footing. It was, in ordinary cases, only where there
was conduct which the Court of Chancery regarded as
unconscientious that it interfered with freedom of
contract. The lending money, on mortgage or other'l'iise,
H
1434 SUPREME COURT REPORTS [2014] 14 S.C.R.

A was looke.d on with suspicion, and the court was on the
alert to discover want of conscience in the terms imposed
by lenders.'
.[15.} The reason then justifying the Court's power to
relieve a mortgagor from the effects of his bargain is its
B want of conscience. Putting it in more familiar language ·
the Court's jurisdiction to relieve a mortgagor from his
bargain depends on whether it was obtained by taking
advantage of any difficulty or embarrassment that he
might have been in when he borrowed the moneys on
c the mortgage. Was the mortgagor oppressed? Was he
imposed upon? If he was, then he may be entitled to
relief.· '
{16.) We then have to see if there was anything
unconscionable in the agreement that the mortgage
D
·would not be redeemed for eighty-five years. Is it
oppressive? Was he forced to agree to it because of
his difficulties? Now this question is essentially one of
fact and has to be decided on the circumstances of each
case. It would be wholly unprofitable in enquiring into
E
this question to examine the large number of reported
cases on the subject, for each turns on its own facts.
The section is unqualified in its terms, and contains no
saving provision as other sections do in favour of
F contracts to the contrary. Their Lordships therefore see
no sufficient reason for withholding from the words of
the section their full force and effect.'
[17.} First then, does the length of the term -. and in
this case it is long enough being eighty-five years itself
G lead to the conclusion that it was an oppressive term?
In .our view, it does not do so. It is not necessary for us
to go so far as to say that the length of the term of the
mortgage can never by itself show that the bargain was
oppressive. We do not desire to say anything on·that.
H
SINGH RAM (D) THR. LRs. v. SHEO RAM & ORS. 1435
[ADARSH KUMAR GOEL, J.]

question in this case. We think it enough to say that we A
have nothing here to show that the length of the term
was in any way disadvantageous to the mortgagor. It is
quite conceivable that it was to his advantage. The suit
for redemption-was brought over forty- seven years after
the date of the mortgage. It seems to us impossible B
that if the term was oppressive, that was not realised
much earlier and the suit brought within a short time of
the mortgage. The learned Judicial Commissioner felt
that the respondents' contention that the suit had been
brought as the price of landed property had gone up . C .
after the war, was justified. We are not prepared to say
that he was wrong in this view. We cannot also ignore,
as appears from a large number of reported decisions,
that it is not uncommon in various parts of India to have
long-term mortgages. Then we find that the property was o
subject to a prior mortgage. We are not aware what the
term of that mortgage was. But we find that that mortgage
included another property which became free from it
as a result of the mortgage in suit. This would show that
the mortgagee under this mortgage was not putting any· E
pressure on the mortgagor. That conclusion also
receives support from the fact that the mortgage money
under the present mortgage was more than that under
the earlier mortgage but the mortgagee in the present
case was satisfied with a smaller security. Again, no F
complaint is made that the interest charged, which was
to be measured by the rent of the property, was in any
manner high. All these, to our mind, indicate that the
mortgagee had not taken any unfair advantage of his
position as the lende.~ nor that the mortgagor was under G
any financial embarrassment.
[18.] It is said that the mortgage instrument itself
indicates that .the bargain is hard, for, while the
mortgagor cannot redeem for eighty-five years, the
mortgagee is free to de.mand payment of his dues at H
1436 SUPREME COURT REPORTS [2014] 14 S.C.R.

A any time he likes. This contention is plainly fallacious.
There is nothing in the mortgage instrument permitting
the mortgagee to demand any money, and it is well settled
that the mortgagee's right to enforce the mortgage and
the mortgagor's right to redeem are coextensive."
s. 8. On the contrary, learned counsel for the respondent
submitted that in Panchanan Sharma v. Basudeo
Prasad Jaganani, 1995 Supp (2) SCC 574 it was clearly
held that when there is no stipulation regarding period
of limitation it can be redeemed at any time. It was, inter
c alia, held as"fo/lows: (SCC p. 576, para 3)
"The sale certificate, Ext: C-11 does not bind the
appellant and, therefore, the mortgage does not stand
.extinguished by reason of the sale. It is inoperative as
against the appellant."
D
9. Though the decision in State of Punjab case prima
facie supports the stand of the appellant, the decision
rendered by a three-Judge Bench of this Court in Ganga
Dhar case according to us had dealt with the legal
E position deliberately and stated the same succinctly." .
(iv) In Parichhan Mistry (Dead) by L.Rs. & Anr. vs.
Acchiabar Mistry & Ors., (1996) 5 SCC 526, it was
observed:-

F "2. The High Court came to the conclusion that the
mortgagors having failed to pay a portion of the rent for
realisation of which the landlord had filed a suit and
obtained a decree and that said decree being put to
execution and the mortgagee having paid up the
decretal dues, the mortgagor loses his right or
G
redemption and, therefore the suit for redemption must
fail. The learned Judge came to the conclusion that the
equity of redemption, in the facts and circumstances of
the case was extinguished and, therefore, the mortgagor
.is not entitled to redeem. The short question that arises
H
SINGH RAM (D) THR. L.Rs. v. SHEO RAM &ORS. 1437
[ADARSH KUMAR GOEL, J.]

for consideration is whether in the facts and A
circumstances of the case the High Court was right in
coming to a conclusion that right of redemption got
extinguished and the mortgagor had no right of
redemption. It is true that a right of redemption under a
mortgage deed can come to an end, but only in a B
manner known to law. Such extinguishment of right can
take place by contract between the parties or by a
decree of the court or by a statutory provision which
debars the mortgagors from redeeming the mortgage.
The mortgagor's right of redemption is exercised by the c
payment or tender to the mortgagee at the proper time
and at the proper place, of the mortgage money. When
it is extinguished by the act of the parties fhe act must
take the shape and obseNe the formalities which the
law prescribes. The expression "act of parties" refers to o
some transaction subsequent to the mortgage and
standing apart from the mortgage transaction. A
usufructuary mortgagee cannot by mere assertion of
his own or by a unilateral act on his part, convert his
position on moiety of the property as mortgagee into E
that of an absolute owner. It is no doubt true that the
mortgagee would be entitled to purchase the entire
equity of redemption from the mortgagor. The
mortgagee occupies a peculiar position and, therefore,
the question as to what he purchases at a court sale is F
a vexed question, but being in an advantageous
position where the mortgagee availing himself of his
position gain§ an advantage he holds, such advantage
is for the benefit of the mortgagor. It has been so held
by this Court in the case of Sidhakamal Nayan G
Rama nu} Das v. Bira Nayak,AIR 1954 SC 336 and
Mritunjoy Pani v. Narmanda Bala Sasmal, (1962) 1
SCR 290. This being the position of law if for some
default in payment of rent a rent decree is obtained and
the mortgagee pays off the same even then the H
1438 SUPREME COURT REPORTS [2014] 14 S.C.R.

A mortgage in question is liable to be redeemed at the
option of the mortgagor. The mortgagee cannot escape
from his obligation by bringing the equity of redemption
to sale in execution of a decree on the personal
covenant. By virtue of purchase of the property by the
B mortgagee in court sale, no merger takes place between
the two rights nor the mortgage stands extinguished."
(v) In Achaldas Durgaji Oswal (Dead) Thr. L.Rs. vs.
Ramvilas Gangabisan Heda (Dead) Thr. L.Rs. & Ors.,
(2003) 3 SCC 614, this Court upheld the view that right of
C redemption was not lost despite failure of a mortgagor in a
usufructuary mortgage to make deposit in terms of a
preliminary decree for redemption. It was observed:-
"7. Mr Mohta, learned Senior Counsel appearing on
behalf of the respondents on the other hand, would
D
submit that whereas Order 34 Rufe 7 would apply both
in respect of the suit for foreclosure and redemption of
mortgage, Order 34 Rule 8 thereof refers to final decree
in redemption suit only. The learned counsel would
contend that having regard to the well-established rule
E
"once a mortgage always a mortgage", the right of a
mortgagor to redeem the mortgage would continue
unless .the same is extinguished either by reason of a
decree passed by a court of law or by an agreement of
parties. The learned counsel pointed out that in this case
F
the application for drawing up of a final decree was filed
within a period of three years from the date of making
.the deposit and thus the same was not. barred by
limitation.
G Findings
8. Usufructuary mortgage is defined in Section 58(d) of
the Transfer of Property Act in the following terms:
"58. (d) Where the mortgagor delivers possession O(
expressly or by implication binds himself to deliver
H
SINGH RAM (D) THR. L.Rs. v. SHEO RAM & ORS. 1439
[ADARSH KUMAR GOEL, J.]

possession of the mortgaged property to the mortgagee, A
and authorises him to retain such possession until
payment of the mortgage-money, and to receive the
rents and profits accruing from the property or any part
of such rents and profits and to appropriate the same
in lieu of interest, or in payment of the mortgage-money, B
or partly in lieu of interest or partly in payment of the
mortgage- money, the transaction is called an
usufructuary mortgage and the mortgagee an
usufructuary mortgagee."
9. Mortgagor, despite having mortgaged the property C
might still deal with it in any way consistent with the rights
of the mortgagee. He has an equitable right to redeem
the property after the day fixed for payment has gone
by but his right or equity of redemption is no longer
strictly an equitable.estate or interest although it is still D
in the nature of an equitable interest. (See Halsbury's
Laws of England, 4th Edn, Vol. 32, p. 264.)
10. The right of the mortgagor, it is now well settled, to
deal with the mortgaged property as well as the limitation E
to which it is subject depends upon the nature of this
ownership which is not absolute, but qualified by reason
of the right of the mortgagee to recover his money out
of the proceedings. The right to redeem the mortgage
is a very valuable right possessed by the mortgagor.
F·
Such a right to redeem the mortgage can be exercised
before it is foreclosed or the estate is sold. The equitable
right of redemption is dependent on the mortgagor
giving the mortgagee reasonable notice of his intention
to redeem and on his fully performing his obligations G
under the mortgage.
11. The doctrine of redemption of mortgaged property
was not recognised by the Indian courts as the essence
of the doctrine of equity of redemption was unknown to
H
1440 SUPREME COURT REPORTS [2014] 14 S.C.R.

A the ancient law oflndia. The Privy Council in
Thumbasawmy Mudelly v. Mohd. Hossain Rowthen
called upon the legislature to make a suitable
amendment which was given a statutory recognition by
reason of Section 60 of the Transfer of Property Act
B which reads thus:
"60. Right of mortgagor to redeem.-At any time after
the principal money has become due, the mortgagor
· has a right, on payment or tender, at a proper time and
place, of the mortgage-money, to reqL1ire the mortgagee
c (a) to deliver to the mortgagor the mortgage-deed and
al/documents relating to the mortgaged property which
are in the possession or power of the mortgagee, (b)
. where the mortgagee is in possession of the mortgaged
property, to deliver possession thereof to the mortgagor,
D and (c) at the cost of the mortgagor either to retransfer
the mortgaged property to him or to such third person
as he may direct, or to execute and (where the mortgage
has been effected by a registered instrument) to have
registered an acknowledgement in writing that any right
E in derogation of his interest transferred to the mortgagee
has been extinguished:
Provided that the right conferred by this section has not
been extinguished by act of the parties or by decree of
F a court.
The right conferred by this section is called a right to
redeem and a suit to enforce it is called a suit for
redemption.
Nothing in this section shall be deemed to render
G
invalid any provision to the effect that, if the time fixed
for payment of the principal money 17as been allowed
to pass or no such time has been fixed, the mortgagee
shall be entitled to reasonable notice before payment
or tender of such money."
H
SINGH RAM (D) THR. L.Rs. v. SHEO RAM &ORS. 1441
[ADARSH KUMAR GOEL, J.]

12. A right of redemption, thus, was statutorily A .
recognized as a right of a mortgagor as an incident of
mortgage which subsists so long as the mortgage itself
subsists. The proviso appended to Section 60, as
noticed hereinbefore, however, confines the said right
so long as the same is not extinguished by an act of B
the parties or by a decree of court:
13. In the Law of Mortgage by Dr Rashbehary Ghose
at pp. 231-32 under the heading "Once a mortgage,
always a mortgage", it is noticed:
c
"In 1681 Lord Nottingham in the leading case of Howard
v. Harrisi firmly laid down the principle: 'Once a
mortgage, always a mortgage'. This is a doctrine to
protect the mortgagor's right of redemption: it renders
all agreements in a mortgage for forfeiture of the right 0 .
to redeem and a/so encumbrances of or dealings with
the property by the mortgagee as against a mortgagor
coming to redeem. In 1902 the well-known maxim, 'once
a mortgage, always a mortgage', was supplemented by
the words 'and nothing but a mortgage' added by Lord
Davey in the leading case of Noakes v. Rice§. in which E
the maxim was explained to mean 'that a mortgage
cannot be made irredeemaf)le and a provision to that
effect is void'. The maxim has been supplemented in
the Indian context by the words 'and therefore always F,
redeemable', added by Justice Sarkar of the Supreme
Court in the.case of Seth Ganga Dhar v. Shankar Lal.
It is thus evident that the very conception of mortgage
involves three principles. First, there is the maxim: 'once
a mortgage, always a mortgage'. That is to say, a G
mortgage is always redeemable and if a contrary
provision is made, it is invalid. And this is an exception
to the aphorism, modus et conventio vincunt /egem
(custom and agreement overrule law). Secondly, the
H
1442 SUPREME COURT REPORTS [2014] 14 S.C.R.

.A mortgagee cannot reserve to ·himself any collateral
advantage outside the mortgage agreement. Thirdly,
as a corollary from the first another principle may be
deduced, namely, 'once. a mortgage, always a
mortgage, and nothing but a mortgage'. In other words,
B any stipulation which prevents a mortgagor from getting
back the prop·erty mortgaged is void. That is, a
mortgage is always redeemable.
The maxim 'once a mortgage always a mortgage' may
be said to be a logical corollary from the doctrine, which
c is the very foundation of the law of mortgages, that time·
is not of the essence of the contract in such transactions;
for the protection which the law throws around the
mortgagor. might be rendered wholly illusory, ifthe right
to redeem could be limited by contract between the.
D parties. Right to redeem is an incident of a subsisting
mortgage and is inseparable from it so that the right is
· coextensive with the mortgage itself. The right subsists
until it is appropriately and effectively extinguished
either by the acts of the parties concerned or by a proper
E decree of the competent court."
4. In The Law of Mortgages by Edward F. Cousins at p.
294, In relation to protection of the right to redeem, it is
stated:
F "But the protection of embarrassed mortgagors could
not be achieved by the mere creation of the equitable
right of redemption. As soon as the practice in equity to
allow redemption after the contract date became known,
mortgagees sought to defeat the intervention of equity
G by special provisions in the mortgage-deed. These
provisions were designed either to render the.legal right
to redeem illusory, and thus prevent the equity of
•
redemption from arising at all, or to defeat or clog the
equity of redemption after it had arisen. For example,
H
SINGH RAM (D) THR. L.Rs. v. SHEO RAM & ORS. 1443
[ADARSH KUMAR GOEL, J.]

the mortgage contract might provide for an option for A
the mortgagee to purchase the mortgaged property, thus
defeating botti the legal and equitable right to redeem,
or might allow redemp,tion after the contract date only
upon payment of an additional sum or upon
performance of some additional obligation. B
Consequently, the Chancellor began to relieve
mortgagors against such restrictions and fetters on the
legal and equitable rights to redeem imposed by
special covenants in the mortgage.
· The protection of a mortgagor against all attempts to C
defeat or clog his right of redemption involved the
creation of subsidiary rules of equity, invalidating the
various contrivances which ingenious conveyancers
devised. These rules are sometimes summed up in a
maxim of equity 'once a mortgage always a mortgage'. D
This means that once a contract is seen to be a
mortgage no provision in the contract will be valid if
itis inconsistent with the right of the mortgagor to
recover his security on discharging his obligations.
Provisions offending against the maxim may either E
touch the contractual terms of redemption, rendering
the right to redeem illusory, or they may touch only the
equitable right to redeem after the passing of the
contract date, hampering the exercise of the right.
Provisions of the latter kind are te(med 'clogs' on the F
equity of redemption. Greene, M.R. in Knightsbridge
Estates v. ByrneZ emphasized that provisions touching
the contractual right to redeem are not properly to be
classed as clogs on the equity of redemption. But it is
·evident that such provisions are in substance clogs on G
the equity of redemption, since they tend to defeat it
a/together."

H
1444 SUPREME COURT REPORTS [2014] 14 S.C.R.

A 15. In Fisher and Lightwood's Law of Mortgage, the
nature of the right of redemption is stated thus:
"The rights of redemption.- The right to redeem a ·
mortgage was formerly conferred on the mortgagor by
a proviso or condition in the mortgage to the effect that,
B ifthe mortgagor or his representative should pay to the
mortgagee the principal sum, with interest at the rate
fixed, on a certain day, the mortgagee,. or the person in
whom the estate was vested, would, at the cost of the
person redeeming, reconvey to him or as he should
c direct (a). This is still the practice in the case of .a
mortgage effected by an assignment of the mortgagor's
interest (b). A proviso for reconveyance was no longer
appropriate after 1925 for a legal mortgage of land
[which has to be made by demise (c)], and it is not
D necessary to have a proviso for surrender of the term
in such a mortgage, since the term ceases on
repayment (d). Nevertheless, in order to define the
rights of the mortgagor and the mortgagee, a proviso is
inserted expressiy stating that the term will cease at the
E date fixed (e).
It has been seen (f) that, at law, whatever form the
mortgage took, upon non-payment by the appointed
time, the estate of the mortgagee be_came absolute and
irredeemable, but that equity intervened to enable the
F
mortgagor to redeem after the date of repayment.
There are, therefore, two distinct Tights of redemption
- the legal or contractual right to redeem on the
appointed day and the equitable right to redeem
G thereafter (g). The equitable right to redeem, which only
arises after the contractual date of redemption has
passed, must be distinguished from the equity of
redemption, which arises when the mortgage is made
(g)."
.H
SINGH RAM (D)THR. L.Rs. v. SHEO RAM & ORS. 1445
[ADARSH KUMAR GOEL, J.]

16. The question which falls for consideration in this A
appeal must be considered keeping in view the statutory
right of the mortgagor in terms of Section 60 of the
Transfer of Property Act. By reason of Article 61 of the
Limitation Act, 1963, the /imitation provided for a suit {o
redeem or recover the possession of immovable B
property mortgaged by a mortgagor is thirty years from
the date of accrual of right to redeem or recover
possession. Article 137 which is a residuary provision
provides for limitation of three years in a case where no
period of limitation is provided. c
20. The statutory provisions, as noticed hereinbefore,
are required to be construed having regard to the
redeeming features of usufructuary mortgage, namely,
(a) there is a delivery of possession to the mortgagee,
(b) he is to retain possession until repayment of money D
and to receive rents and profits or part thereof in lieu of . ,•
interest, or in payment of mortgage~money, or part/yin
lieu of interest and partly in payment of mortgage-
money, (c) there is redemption when the amount due is
personally paid or is discharged by rents or profits E
received, and (d) there is no remedy by sale or
foreclosure. •'

21. Order 34 Rules 7 and 8 do not confer any right upon
the usufructuary mortgagee to apply for final decree F
which is conferred on the mortgagee on other types of
mortgages. By reason of sub-rule (1).of Rule 8 of Order
34, a mortgagor is entitled to make an application for
final decree at any time before. a final decree debarring
the plaintiff from all rights to redeem the mortgaged G
property has been passed or before the confirmation
of a sale held in pursuance of a final decree passed
un<Jer sub-rule (3) of this Rule. No such application is
again contemplated at the instance of the usufructuary
mortgagee. By reason of sub-rule ( 1) of Rule 8 of Order , H
.1446 SUPREME COURT REPORTS [2014] 14 S.C.R.

A 34, a right of redemption is conferred upon the
mortgagor of a usufructuary mortgage. Such a
provision has been made evidently having regard to
the right of redemption of a' mortgagor in terms of
Section 60 of the Transfer of Property Act and further,
B having regard to the fact that a usufructuary mortgagee
would be entitled to possess the property in question
till a final decree of redemption is passed.
, 22. The right of redemption of a mortgagor being a
statutory right, the same can be taken away only in terms
c of the proviso appended to Section 60 of the Act which
is extinguished either by a decree or by act of parties.
Admittedly, in the instant case, no decree has been
passed extinguishing the right of the mortgagor nor has
such right come to an end by act of the parties.
D . '
23. A right for obtaining a final decree for sale or
foreclosure can be exercised only on payment of such
money. Such a right can be exercised at any time even
before the sale is confirmed although the final decree
might have been passed in the meanwhile. The
E
mortgagee is also not entitled to receive any payment
under the preliminary decree nor is the mortgagor
required to make an application to recover before
paying the same.
F 24. Even, indisputably, despite expiry of the time for
deposit Of the mortgaged money in terms of the
preliminary decree, a second suit for redemption would
·be maintainable." ·
(vi) In Prithi Nath Singh vs. SurajAhir, (1963) 3 SCR
G 302, this Court approved the observations df Allahabad High
Court in Rama Prasad vs. Bishambhar Singh, AIR 1946 All
400, that Sections 60 and 62 of T.P. Act make distinction iri
right of a usufructuary mortgagor and other mortgagor as
follows:-
H
SINGH RAM (D) THR. L.Rs. v. SHEO RAM & ORS. 1447
[ADARSH KUMAR GOEL, J.]

"11. In Ramprasad v. Bishambhar Singh, AIR 1946All A -
400, the question formulated for determination was
whether the suit being a suit to recover possession of
the mortgaged property after the mortgage money had
been paid-off was a suit "against the mortgagee to
redeem" or "to recover possession. of immovable B
property mortgaged".
Braund, J., said, at p. 402:
"Now, it is quite obvious that that section (Section 60 of
the Transfer of Property Act) can only refer to a case in C
which a mortgagor under a subsisting mortgage
approaches the Court to establish his right to redeem
and to have that redemption carried out by the process
of the various declarations and orders of the Court by
which it effects redemption. In other words, Section 60 Q
contemplates a case in which the mortgage is still
subsisting and the mortgagor goes to the Court to obtain
·the return of his property on repayment of what is still
due. Section 62, on the other hand, is in marked contrast
to Section 60. Section 62 says that in the case of a E
usufructuary mortgage the mortgagor has a right to
"recover possession" of the property when (in a case in
which the mortgagee is authorised to pay himself the
mortgage money out of the rents and profits of the
property) the principal money is paid-off. As we see it, F
that is not a case of redemption at all. At the moment
when the rents and profits of the mortgaged property
sufficed to discharge the principal secured by the
mortgage, the mortgage came to an end and the
correlative right arose in the mortgagor "to recover
possession of the property". The framers of the Transfer G
of Property Act have clearly recognised the distinction
between the procedure. which follows a mortgagor's
desire to redeem a subsisting mortgage and the
procedure which follows the arising of a usufructuary _
H
·. ..
1448 . SUPREME' COURT REPORTS r2014J 14 s:c.R
'
·A . mortgagor's right to get his property ·back after the
principal has been paid-off."
(vii) In Hamzabi & Ors. vs. Syed Karimuddin & Ors.,
(2001) 1 scc·414, it was observed:-
"2. The right of the mortgagor to redeem had its origin
B
· as ah equitable principle for giving relief against
forfeiture even after the mortgagor defaulted in making
payment under the mortgage deed. It is a right which
has been jealously guarded over the years by courts.
The maxim of "once a mortgage always a mortgage"
c
. and the avoidance ofprovisions obstructing redemption
·as "clogs on redemption" are expressions of this judicial
protection. (See: Poma/ Kanji Govindji v. Vrajlal
Karsandas Purohit (1989) 1 SCC 458 in this context.)
As far as this country is concerned, the right is statutorily
D
recognised in Section 60 of the Transfer of Property
,_
~~
.'.·;,;,, Act.' The section gives the mortgagor right to redeem
· the property at any time·after the principal money has
become due by tendering the mortgage money and
claiming possession of the mortgaged property from
E the mortgagee. The only limit to this right is contained
in the proviso to the section which reads:
~. "Provided that the right conferred by this section has
I
not been extinguished by act orthe parties or by decree
F of a court."
3. While the expression "decree of court" is explicit
ehoUgh, the phrase "act of parties" has given rise to
controversy. One such act may be· .. when the
mortgagor sells the equity of redemption to the
G mortgagee. This Court in Narandas Karsondas v. S.A.
Kamtam, (1977) 3 SCC 247 has said that: (SCC p. 254,
para34)"
(viii) Contrary view has been expressed in Sampura~
Singh & Ors. vs. Smt; Nfnjan Kaur(smt.) & Ors., (1999)
H 2 sec 679 as follows:- ' '
'
'
.
\
·_'11,

SINGH RAM (D) THR. L.Rs. v. SHEO RAM & ORS.· . 1449
[ADARSH KUMAR GOEL, J.] . . . .,

"14. Submission was, as aforesaid, fhat right to redee~ ).
.....
only accrues when either the mortgagors tender th~ ' '·

amount of mortgage or the mortgagees communicate
s.atisfaction of .the mortgage amount through the
usufruct from the land. This submission . is
misconceived, as aforesaid, if this interpretation is B
" accepted, then till this happens the period of limitation
' never start running and it could go on. for an infinite .
period. We have no.hesitation to reject this submission.
The language recorded above makes it clear that right
ofredemption accrues from the very first day unless c
restricted under the mortgage deed. When there is no
restriction the mortgagors have.a right to redeem the
mortgage from that very date when the mortgage was
executed. Right accruing means, right either existing
or coming info play thereafter. Where no period in the o
mortgage is specified, there exists a right to a mortgagor
to redeem the mortgage by paying the amount that very
day in case he receives the desired money for which
he has mortgaged his land or any day" thereafter.. This
right could only be restricted through law or in terms of E
a .valid mortgage deed. There is no such restriction
shown or pointed out. Hence, in our considered opinion
the period of limitation would start from the very date
the valid mortgage is said to have b~en. executed .and
hence the period of /imitation of 60 years would start F
from. the very date of oral mortgage, that would be from
March 1893. In view of this, we do not find any erroi_in .
the decision of the first appellate court or the High Court
holding that the suit of the present appellants is time-
barred." ·G
However, facts mentioned in para 3 show that
possession remained with mortgagor and it was not a case of
usufructuary mortgage.

H
'
1450 SUPREME COURT REPORTS. [2014] 14 S.C.R.

A' 14. We need not multiply reference to other judgments.
Reference to above judgments clearly spell out the reasons
for conflicting views. In cases where distinction in usufructuary
mortgagor's right under Section 62 of the T.P. Act has bee"n
noted, right to redeem has been held to continue till the
B mortgage money is paid for which there is no time limit while
in other cases right to redeem has been held to accrue on the
date of mortgage resulting in extinguishment of right of
redemption after 30 years.
15. We, thus, hold that special right of usufructuary
C mortgagor under Section 62 of the T.P. 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 n~t start for purposes of
D 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. We answer the question accordingly.
E 16. On this conclusion, the view taken by the Punjab and
.Haryana High Court will stand affirmed and contrary view taken
by the Himachal Pradesh High Court in Bhandaru Ram (D)
Thr. L.R. Ratan Lal vs. Sukh Ram (supra) will stand
over-ruled.
F 17. The appeals are dismissed. '

Kalpana K. Tripathy Appeals dismissed.