Holding

The limitation period for redemption of a valid oral mortgage starts on the date of its execution, rendering the 1980 suit time‑barred.

Summary

The appellants, SAMPURNAN SINGH and others, purchased land in 1959 that had been orally mortgaged in March 1893 for Rs. 53. The mortgagee rights were sold to the respondents on 11 January 1960. The appellants filed a suit in 1980 seeking possession by redemption, but the respondents contended the suit was barred by limitation. The Supreme Court held that an oral mortgage executed before the extension of Section 59 of the Transfer of Property Act was valid and enforceable, and that the limitation period for redemption under Article 61(a) of the Limitation Act, 1963 begins on the date of the valid mortgage. Since the 60‑year period expired in 1953, the suit filed in 1980 was time‑barred. The Court also rejected the argument that Section 18 of the Limitation Act could revive the limitation after the expiry, and held that the Redemption of Mortgages (Punjab) Act, 1913 does not affect the limitation period. Consequently, the appeal was dismissed.

Issues considered

Whether an oral mortgage executed in 1893 in Punjab, prior to the applicability of Section 59 of the Transfer of Property Act, is valid and enforceable.
When does the limitation period for redemption of a mortgage commence under the Limitation Act, 1963.
Whether an acknowledgement of the mortgage under Section 18 of the Limitation Act can revive a limitation period that has already expired.
Whether the Redemption of Mortgages (Punjab) Act, 1913 is applicable to the limitation period for redemption of the mortgage.

Legislation cited

Limitation Act, 1963s. 18, s. Article 61(a) Schedule Part V
Transfer of Property Act, 1872s. 59

Subjects

oral mortgagelimitation periodredemption of mortgageSection 18 Limitation ActTransfer of Property ActSection 59Punjab lawtime‑barred suitmortgagee rights

Judgment

•

•
~ SAMPURAN SINGH AND ORS. A
v.
NIRANJAN KAUR AND ORS.

FEBRUARY 23, 1999

(A.P. MISRA AND N. SANTOSH HEGDE, JJ.] B

~
"" Limitatio11 Act, 1963 :

Article 61 (a }-Oral mortgage--Redemptio11 orlmmovable property
morlgaged for Rs. 53 i11 1893 before exte11sio11 of S. 59 of Tra11sfer of Property
Act, which required registratio11 of a mortgage, to State of Pu11jab-Held : c
Such mortgage is valid a11d legally e11forceable-As there is 110 restrictio11 in
the mortgage deed, right to redeem accrues from the very date of execution of
valid mortgage-Therefore, limitatio11 for fili11g suit expired i11 195:r-Hence,
suit filed in 1980 is time-ba1Ted-Tra11sfer of Property Act, 1872, S. 59.
,. Sectio11 18-Applicability-Liability-Ack11owledgement of-Held : For
D
limitatio11 to revive afresh, the acknowledgement must be during subsiste11ce
of period of limitation.

Redemption of Mortgages (Punjab) Act, 1913.
E
Mortgage-Redemption of-Period of limitation-Applicability of
Act-Held : Act has no co-relation with period of limitation in case of
redemptio11 of niortgages-Hence, not applicable to redemptio11 of mortgages.

One R and others originally mortgaged the suit land for Rs. 53 by
A-
an oral mortgage in favour of B and others in March 1983 in the State of F
> Punjab Prior to the extension of Section 59 of the Transfer of Property Act,
1872, which required registration of a mortgage. Mutation was sanctioned.
The appellants had purchased the suit land in· the year 1959 from the
original mortgagors by execution of registered sale deeds. Subsequently,
on 11.1.1960 the mortgages sold their mortgagee rights byway of registered
G
sale deed to the respondents.

.~ The appellants filed a suit in 1980 for possession by way of redemp-
... lion of the suit land. The respondents contended that 'the suit was barred
by limitation. According to the appellants till 1960-61 it were the
mortgagors who remained in possession of the suit land and were getting H
841
842 SUPREME COURT REPORTS [1999] 1 S.C.R.
A the same cultivated though their tenants. The appellants further con-
tended that since in the year 1960 the respondents had acknowledged the
existence of the original mortgage, a fresh period of limitation for redemp-
tion of the mortgage in question had begun to run from 11.1.1960. The
Trial Court decreed the suit on the ground that a fresh period of limitation
B under Section 18 of the Limitation Act, 1963 started from 11.1.1960. The
first Appellate Court set aside this judgment. The High Court dismissed
the second appeal. Hence this Appeal.
' ..
On behalf of the appellants it was contended that in an oral
mortgage till the Redemption of Mortgages (Punjab) Act, 1913 came into
C force, there was no period of limitation and the right for redemption
accrued only after this Act came into force, and so limitation could not
start before the date when this Act came into force and thus as in the
present case neither mortgagors offered to pay the mortgage amount nor
mortgagees communicated that the mortgage amount had been paid,
therefore, right to redeem mortgage had not accrued; and that right to
D redeem under Article 6l(a) of Part V of the Schedule to the Limitation Act,
1963 only accrued when either the mortgagors tendered the amount of
mortgage ur the mortgagees communicated satisfaction of the mortgage
amount through the usufruct from the land.

E Dismissing the appeal, this Court

HELD : 1. The oral mortgage was executed in March 1893 in the
State of Punjab, prior to the extension of the provisions of Section 59 of
the Transfer of Property Act, 1882, ~hich requires registration of a
mortgage.' ·Therefore, the transaction was valid and legally enforceable.
F Further, the suit land was mortgaged with possession for Rs. 53 i.e. less
than Rs. 100. So the mortgage could have been effected either by a
registered instrument or by delivery of possession of the land in ques-
tion. Hence, a valid mortgage came into existence on the very day of its
execution. [846-D; 845-H; 846-A]
G
Sri Chand v. Nathi (P & H), CR No. 345 of (1981) decided on
21.1.1983, approved.
'
lnder Singh v. Kishno, (1966) Punj LR 408 (P & H), overruled.

H Puntshottam Dass v. S.M. Dedouza, AIR (1950) Ori 213 and C.
SAMPURNAN SINGH v. NIRANJAN KAUR 843

Beepatahumma v. V.S. Kadambolithaya, [1964] 5 SCR 836, held inap- A
plicable.

2. The period of limitation starts from the very day of a valid
mortgage. The court has only to see, whether a mortgage is valid or not.
If it is valid, right to redeem to the mortgagors accrues from that very
date, unless any restraint in the mortgage deed is provided specifying B
restriction under it. When there is no restriction 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 into play
thereafter. Where no period in the mortgage is specified, there exists a
right to a mortgagor to redeem the mortgage by paying the amount that C
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 a valid mortgage deed. There is no such restriction
shown or pointed out. Hence, the period of limitation would start from the
very date the valid mortgage is said to have been executed and, therefore, D
the period of limitation of 60 years would start from the very date of oral
mortgage, which would be from March 1983. The submission based on the
language of Article 6l(a) of Part V of the Schedule to the Limitation Act,
1963 is misconceived. [849-H; 851-A-C]

3. The submission regarding applicability of Section 18 of the E
Limitation Act is without any force. The acknowledgement, if any, has to
be prior to th~ expir11tion of the prescribed period for filing the suit, in
other words, if the limitation has already expired, it would not revive under
this Section. It is only during subsistence of a period of limitation, if any,
,,.. such document is executed, the limitation would be revived afresh from the F
• said date of acknowledgement. In the present case, admittedly, the oral
mortgage deed is in March 1893. If the period of limitation for filing the
suit for redemption is 60 years than limitation for filing a suit would expire
in the year 1953. Thus, by the execution of the document dated 11.1.1960
it canuot be held by virtue of Section 18 that the period of limitation is
revived afresh from this date. [847-G-H] G

4. The Redemption of Mortgages (Punjab) Act, 1913 has no co-rela-
tion with the period of limitation in case of redemption of mortgages. In
any case, even from the date of this Act, viz., 1913, the period of limitation
expires in 1973, hence the suit still is barred by time. [850-C] H
844 SUPREME COURT REPORTS [1999] 1 S.C.R.
A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4544 of .():
1984.

From the Judgment and Order dated 4.2.83 of the Punjab & Haryana
High Court in R.S.A. No. 2362 of 1982.

B A.B. Rohtagi, Harinder Mohan Singh for the Appellants.
~
G.K. Bansal for the Respondents.
•
The Judgment of the Court was delivered by

c mortgagor-appellants
MISRA, J. The only question raised by the learned counsel for the
is and, that is, what is also decided by the courts
below is whether his suit for redemption is barred by time? This is a case
of oral mortgage executed in the year 1893 for a sum of Rs. 53 and further,
a question is raised, whether fresh period of limitation would revive from
11th January, 1960, on which date the original mortgagee sold his
D mortgagee right by a registered deed to the respondents, who acknowledge >o
the existence of the mortgage in question?

To appreciate the controversy, it is necessary to refer to the following
short facts of this case. The suit land comprising of 37 kanals 15 marlas in
Khewat No. 260, Khatauni No. 448, Rect. No. 45, Killa No. 14(8-0), 19(8-0),
E
21(5-15), 22(8-0) situated in village Sambhli, Tehsil and District Kamal
(Haryana) was originally mortgaged by Rekha and others for a sum of Rs.
53 in favour of Bakhatwara, Raju and Matu S/o Sahu on 21st March 1893.
Mutation was sanctioned. Subsequently, on 11th January, 1960, the
mortgagee-Matu s/o Raju and Smt. Dasondha Wd/o Parsa D/o Sahu sold
F their mortgagee rights vide registered sale deed in the even date to the ....
respondents.
.
On the other hand, the appellants had purchased the suit land in
the year 1959 from the original mortgagor-Rekha and others vide three
separate registered sale deeds. According to the appellants till 1960-61 it
G were the mortgagors who remained in possession of the suit land were
getting the same cultivated through their tenants. The appellants state that
1""""'
since in the year 1960 the original mortgagees had acknowledged the
1'
original mortgage, therefore, a fresh period of limitation for redemption of
the mortgage in question begun to run from 11th January, 1960 and prayed
H for possession by way of redemption on payment of Rs. 53.
SAMPURNAN SINGH v. NIRANJAN KAUR [MISRA, J.] 845

b-, On these facts, the appellants filed the present suit in the year 1980 A
for possession by way of redemption of the suit land as against the respon-
dents. The respondents contested the suit and raised preliminary objec-
tions that the present suit is hopelessly time barred and also raised other
objections which are not necessary to refer, as both the parties pressed only
issue of limitation not only before us but even when the matter was before
the courts below. Respondents' case is that they are in possession of the
B
suit property as owners as their predecessors-in-interest mortgi:ges with
·~ " possession transferred their entire right by means of registered sale deed
dated 11th January, 1966 to the respondents, as aforesaid. At that time
there was no agreement in subsistence as originally mortgagees became
owners. As stated earlier, the original oral mortgage was for a sum of Rs. c
53.

The Trial Court decreed the suit for redemption on payment of Rs.
53 and held that the suit is within time and hence they have right to redeem
the mortgage. The Trial Court held that the suit is within time by holding D
that the acknowledgement by the respondents, on behalf of the original
" mortgagees vide sale deed dated 11th January, 1960, a fresh period of
limitation start from the date of this deed. It further placed reliance in the
case of lnder Singh & Ors. v. Mst. Kishno & Ors., (1966) Punjab Law Report
408, to hold that the period of limitation would only run after expiry of 12
years from the date of mortgage, in cases of unregistered mortgage. Since E
the present case is also a case of unregistered mortgage it held that such
mortgage and possession would only become valid after a period of 12
years from the date of such mortgage. The present oral mortgage in
question was of the year 1893 thus the limitation would only start after 12
years of this date which would be in the year 1905 and adding 60 years F
, > from this, the limitation for filing suit would only expire in the year 1965
and since there is acknowledgement by the mortgagees on 11th January,
1960, as aforesaid, a fresh limitation starts from this date hence the suit is
within limitation. However, the first Appellate Court set aside this judg-
ment. It held that the aforesaid decision in lnder Singh (supra) is of no help
to the plaintiffs (mortgagors) as it is not disputed by the parties and rather G
conceded that earlier, specially during the year in question, oral agreement
was permissible in the State of Punjab and was treated to be a valid
~
.. agreement. This coupled with the fact that the principal money secured
under the said agreement was less than Rs. 100, so the mortgage could
have been effected either by a registered instrument or by delivery of H
846 SUPREME COURT REPORTS (1999) 1 S.C.R.

A possession of the land in question. In this view of the matter, admittedly,
the land in the suit was mortgag~d with possession for Rs. 53 in March
1893. Hence, a valid mortgage came into existence on the very day of its
execution. In view of this, it held that the period of limitation of redemption
of the land in suit started on that very date of the execution and thus period
B of 60 years is to be counted from March 1893, hence the suit is barred by
time. When the matter was taken in second appeal the High Court relied
on its Full Bench decision in Civil Revision No. 345 of 1981, titled, Sli
Chand & Ors. v. Nathi, dated 21st January 1983, in which it over-ruled its . ~

earlier decision in Inder- Singh (supra) and hence dismissed the appeal of
the present appellants.
c
Learned senior counsel for the appellants, Mr. A.B. Rohtagi, fairly
stated that the aforesaid Full Bench decision is no doubt against the
appellants but made submissions for holding contrary to what has been
held therein. In the said case of Sli Chand & Ors. (supra) one of the core
D question raised was, whether an oral mortgage was valid in the eyes of law,
which.is executed on 14th June 1948 in the State of Punjab, prior to. the
extension of the provisions of Section 59 of the Transfer of Property Act,
1882 which requires registration of a mortgage. It is also not in dispute that
the Transfer of Property Act by virtue of Section 1 is only extended in the
State of Haryana on the 5th August 1967, to which the Full Bench was
E concerned and to the State of Punjab after 1st November 1956, to which
we are concerned. It held that there was no bar to give effect to an oral
mortgage in a case where mortgagor gave possession of the land to a
mortgagee. The Full Bench held :

F "Now once that is so on the admitted stand that an oral mortgage
was made on June 14, 1948 it seems to inflexibly follow that no
legal infirmity attached thereto and the transaction was in essence,
legally valid and enforceable. All that, therefore, remains for ad-
judication is as to what would be the period of limitation for the
redemption of such a valid, oral mortgage."
G
The Full Bench decision rightly over-ruled the decision of Inder Singh
(supra) as that decision wrongly based its conclusion on an earlier decision
in the case of Purnshottam Dass and Anr. v. S.M. Dedouza & Anr., AIR 37
(1950) Orissa 213. The facts in that ca~e were that the mortgage was for
H an amount for more than Rs. 100 and was unregistered which was executed
SAMPURNAN SINGH v. NIRANJAN KAUR [MISRA, J.) 847

~-
after the Transfer of Property Act was made applicable to the State of A
Orissa hence the mortgage was invalid. It is for this reason it held that the
period of limitation would only start after the expiry of 12 years of such
invalid mortgage as such possession would prefect into a valid mortgage
after the expiry of this period. Hence Full Bench rightly held that the
principle of Pwushottam Dass & Anr. (supra) was wrongly applied in the
B
lnder Singh (supra). The Full Bench finally concluded :
-o,
~ "In the present case, admittedly the oral mortgage had been made
on June 14, 1948. At that time the relevant provisions of the
Transfer of Property Act had not been made applicable to the
area. The said transaction at that time was therefore, valid and c
legally enforceable one and the fact whether the mortgage was
registered or not was wholly irrelevant with regard to the issue of
its validity. Consequently, the terminus for the limitation for
redemption has to run from the aforesaid date of June 14, 1948 ...".

D
We find no error committed in coming to the said decision by the
.. "'
,- Full Bench. No sustainable submission has been advanced to hold a con-
trary view.

In his endeavour, learned counsel for the appellants, referred to
Section 18 of the Limitation Act to hold that the acknowledgement by the E
original mortgagees to the respondents, through the said registered docu-
ment dated 11th January 1960, the period of limitation is revive which
would only start from that date of acknowledgement hence the suit filed in
the year 1980 would be within limitation. The said submission is without
any force. Section 18, sub-section (1), itself starts with the words "Where, F
).-
before the expiration of the prescribed period for a suit or application in
... respect of any property or right, an acknowledgement of liability in respect
of such property or right has been made ...". Thus, the acknowledgement, if
any, has to be prior to the expiration of the prescribed period for filing the
suit, in other words, if the limitation has already expired, it would not revive
under this Section. It is only during subsistence of a period of limitation, G
if any, such document is executed, the limitation would be ·revived afresh

-- ~
from the said date of acknowledgement. In the present case, admittedly the
oral mortgage deed is in March 1893. If the period of limitation for filing
suit for redemption is 60 years then limitation for filing a suit would expire
in the year 1953. Thus, by the execution of this document dated 11th H
848 SUPREME COURT REPORTS (1999] 1 S.C.R.
A January 1960 it cannot be held by virtue of Section 18 that the period of
limitation is revived afresh from this date.

Learned counsel for the appellants has also made reference in the
case reported in C. Beepathwnma & Ors. v. V.S. Kadambolithaya & Ors.,
B (1964] 5 SCR 836. In view of this decision it was submitted that since
mortgagee-respondents continued to enjoy the property with possession
under the mortgage they cannot shirk from accepting their obligatiol). under >
it. This court held : . •

"...That doctrine is that a person who accepts a benefit under a
c deed or will or other instrument must adopt the whole contents of
the instrument, must conform to all its provisions and renounce all
rights that are inconsistent with it, in other words a person cannot
approbate and reprobate the same transaction."

D This has no relevance to the present case. Present case is not a case where
mortgagee has received any benefit under any instrument and renouncing
to perform any obligation under it. In the present case, there is neither any
deed or document of mortgage. Even under oral mortgage the only
obligation for a mortgagee was to hand over possession of the property
mortgaged at the moment mortgagor pays the mortgage money. It is
E nobody's case that the mortgagor has paid back the money. This part of
the judgment only refers to the doctrine of election. There is no obligation
under the oral mortgage which could be said not performed by the
mortgagee. We are only concerned here, whether the suit filed by the
appellants is within time or not. It is significant that this very decision also
F makes reference about the limitation in filing such suits. Here a suit was
filed for redemption of mortgage deed, Ex. P-2 by the 1st and 2nd respon-
dents. The first respondent purchased Schedule 'A' property and under-
took to redeem the mortgage property described in Schedules 'A" and 'B'
and hand over possession of Schedule 'B' property to the legal repre-
sentatives in the family of one Madana. Before this on 14th April 1842
G Madana, who was then Ejaman of the family, usufructuarily mortgaged the
'A', 'B' and 'C' Schedule properties under Ex. P-1. This deed did not
contain any provision for repayment of the amount or for the usufructuary
mortgage to be worked off. So no period was stated for redemption. Then
it was later converted into a mortgage specifying time through Ex. P-2, as
H aforesaid. in 1862. The Court held :
SAMPURNAN SINGH v. NIRANJAN KAUR [MISRA, J.] 849

.... ~ ".. .Jn 1842 when Ex. P-1 was executed, there was no law prescribing A
a period of limitation for the redemption of a usufructuary
mortgage. Such limit came in 1859 for the first time and a period
of 60 years from the date of the mortgage was prescribed. It is this
statute which seems to have been the cause for the execution of
Exs. P-2 and P-2(a); the mortgagees Were perhaps afraid that the
B
mortgage could be redeemed at any time within 60 years from the
..;._ date of the 11101tgage of 1842. The last date for redemption thus was
1902. By getting the term certain for 40 years, the date for redemp-
" tion was shifted by them to 1902 and redemption could not take
place till that year. the mortgagors also benefited, because they
obtained a release of some properties and received Rs. 100 in cash. c
The period of 60 years was repeated in the Act of 1871; but it
contained a rider that if during the period of 60 years, there was
an acknowledgement then the period would run from the date of
that acknowledgement. Art. 148 of the Limitation Act as it stands
today was introduced by the Act of 1877. It makes the 60 years'
D
... period run from the time when redemption is due ... "

(Emphasis supplied)

The aforesaid passage clearly shows that the mortgage could be redeemed
at any time within 60 years from the date of mortgage. E

Hence we find that this case, instead of supporting, is against the
submissions of learned counsel for the appellants. Lastly, learned counsel
for the appellants faintly made reference to the Redemption of Mortgages
(Punjab) Act, 1913 to submit that in an oral mortgage, till this Act came. F
)-- into force, there was no period of limitation and the right for redemption
> accrued only after this Act came into force, hence limitation cannot start
before the date when this Act came into force and thus as in the present
case neither mortgagors offered to pay the mortgage amount nor
mortgagees communicated that the mortgage amount has been paid, hence
right to redeem mortgage could not be said to have accrued, so question G
of running any period of limitation never arose till this 1913 Act came into
force. This submission is misconceived without any merit and has no force.
We have already recorded that the period of limitation starts the very first
date of a valid mortgage. Court has only to see, whether a mortgage is valid
or not. If it is valid, right to redeem to the mortgagors accrues from that H
850 SUPREME COURT REPORTS (1999] 1 S.C.R.
A very date, unless any restrain in the m01tgage deed is provided specifying
restriction under it as in the case of C. Beepathumma & Ors. (supra)
specific restriction was contained under Ex. P-2. So far, this 1913 Art, the
statement of objects and reasons clearly reveal that this Act was only
brought in, as under Section 7(5) of the Punjab Alienation of Land Act, as
B subsequently amended in 1907, the Deputy Commissioner has, in the case
of mortgages made under Section 6 of that Act, certain powers to restore
mortgagors to possession of their property was provided, therefore, 1913
Act was passed to confer similar powers in respect of other mortgages not
covered under Section 6. This also provided for a summary procedure in
. .
the matter of redemption mortgages. This has no co-relation with the
C period of limitation in case of redemption of mortgages. In any case, even
from the date of this Act, viz., 1913 the period of limitation expires on 1973
hence the suit still is barred by time.

Learned counsel also referred to the language of Section 61(a)
of part V of the Schedule to the Limitation Act, which is quoted
D hereunder:
)<

11
61. By a mortgagor -

Description of suit Period of Time from which
limitation period begins to run
E
(a) to redeem or When the right to
recover possession of Thirty Years redeem or to recover
immovable property possession accrues.
mortgaged;"
F
It is not in dispute at the relevant time period of limitation under this ~

was 60 years and not 30 years.
.
Submission. was, as aforesaid, right to redeem only accrue when
either mortgagors tender the amount of mortgage or the mortgagees
G communicate satisfaction of the mortgage amount through the usufruct
from the land. This submission is misconceived, as aforesaid, if this inter-
pretation is 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
H clear that right .of redemption accrues from the very first day unless
SAMPURNAN SINGH v. NIRANJAN KAUR [MISRA, J.] 851

restricted under the mortgage deqd. \}'hen there is no restriction A
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 into play thereafter. Where no period in the mortgage is specified,
there eXist 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
B
restricted through law or in terms of 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 been executed hence the period of limitat\on of 60 years
wo~ld star\ from the very date of oral mortgage that would be f~om March, c
1893. In vitw of this, we do not find any error in the decision of the first
Appellate Court or the High Court hoiding that the suit of the present
appellants is time barred. I

Hence, for the reasons recorded above, we do not find any merit or
force in the submissions made by the learned counsel for the appellants. D
Accordingly, the present appeal is dismissed. Costs on the parties.
(
v.s.s. Appeal dismissed.