Limitation for Redeeming a Usufructuary Mortgage Runs Only After Tender of Mortgage Money, Rules Allahabad HC
Allahabad High Court dismisses Article 227 petition, holding that the 30-year limitation under Article 61(a) of the Limitation Act for redemption of a usufructuary mortgage begins only when the mortgagor tenders or pays the mortgage money — not from the date the mortgage deed was executed.
A 1978 usufructuary mortgage over a house in Bareilly became the centre of a limitation dispute when the mortgagee-defendants argued that the mortgagor's heirs had filed a redemption suit nearly four years after the 30-year window had closed. Justice Manish Kumar Nigam, sitting singly at Allahabad, rejected that argument on 1 July 2026, dismissing the Article 227 petition filed by the defendants after two successive courts had already refused to throw out the plaint. The judgment tracks the Supreme Court's authoritative ruling in Singh Ram (D) Thr. L.Rs. v. Sheo Ram and Others, AIR 2014 SC 3447, which settled that for a usufructuary mortgage, limitation under Article 61(a) of the Limitation Act 1963 does not tick from the date of execution but from the date the mortgagor pays or tenders the mortgage money.
The Dispute Before the High Court
In 1978, one Jagdish Prasad Johri mortgaged House No. 333, Mohalla Kunwapur, Bareilly, admeasuring 168.81 sq. metres, to the petitioners (Ram Prakash and three others) by way of a usufructuary mortgage. The mortgage secured a debt of Rs. 15,000. Under the deed, the petitioners were put in possession; the rent of the house was to be adjusted towards interest on the sum advanced; and the mortgage period was stated to be four years. The deed further provided that until the entire debt was paid, the property would remain in the petitioners' possession, and the mortgagor would be entitled to redeem on payment.
Jagdish Prasad Johri died on 26 October 2015. His heirs — the respondents in this petition — then tendered Rs. 15,000 by bank pay order along with a notice dated 30 December 2015, demanding that the defendants get the mortgage deed cancelled and hand over possession. The defendants returned the bank pay order by reply notice dated 12 January 2016, admitting the mortgage deed and admitting it had never been redeemed, but asserting the plaintiffs had no right to redeem.
On 3 March 2016, the heirs of Jagdish Prasad Johri instituted Original Suit No. 35 of 2016 before the Civil Judge (Junior Division), Bareilly, seeking execution of documents for rehan wapsi (cancellation of the mortgage deed) and delivery of possession, along with damages from the date of notice.
The Order 7 Rule 11 Application and the Limitation Argument
Defendant nos. 2 to 4 moved an application under Order 7 Rule 11 CPC for rejection of the plaint. Their case was precise: the mortgage was executed on 28 March 1978 for a four-year period; the four years expired on 28 March 1982; the 30-year limitation for redemption under Article 61(a) of the Limitation Act therefore expired on 28 March 2012; the suit filed on 3 March 2016 was thus time-barred on its face.
The plaintiffs objected, contending that the document was a usufructuary mortgage governed by Section 62 of the Transfer of Property Act, 1882. In their submission, limitation for recovery of possession in a usufructuary mortgage commences only when the mortgagor pays or tenders the mortgage money, which happened here for the first time on 30 December 2015.
The Civil Judge (Junior Division), Bareilly, rejected the Order 7 Rule 11 application on 13 October 2017, holding the suit was not barred by limitation because the right to redeem arose on 30 December 2015, when the plaintiffs gave notice accompanied by payment. The defendants took the matter up in Civil Revision No. 117 of 2017 before the Additional District Judge, Court No. 9, Bareilly. That revision was dismissed on 8 May 2019. The defendants then filed the present petition under Article 227 of the Constitution.
The Statutory and Doctrinal Framework
Justice Nigam set out the relevant provisions at length. Section 58(d) of the Transfer of Property Act defines a usufructuary mortgage as one where the mortgagor delivers possession to the mortgagee, authorises him to retain possession until payment of the mortgage money, and to receive rents and profits in lieu of interest or in payment of the mortgage money, or partly both. Section 60 of the Act confers the right of redemption on any mortgagor once the principal money has become due — a statutory right that cannot be extinguished except by act of the parties or by a court decree in the prescribed form.
Section 62, the provision that proved decisive, deals specifically with the usufructuary mortgagor's right to recover possession. Under clause (a), where the mortgagee is authorised to pay himself the mortgage money from rents and profits, the right to recover possession arises when such money is paid. Under clause (b), where the mortgagee recovers only part of the mortgage money from rents and profits, the right arises when the term (if any) prescribed for payment has expired and the mortgagor pays, tenders, or deposits in court the mortgage money or the balance thereof.
Article 61(a) of the Limitation Act 1963 prescribes a 30-year period for a suit by a mortgagor to redeem or recover possession of immovable property mortgaged, running from “when the right to redeem or to recover possession accrues.”
The court also reproduced the maxim “once a mortgage, always a mortgage” — tracing it through Dr. Rashbehary Ghose's Law of Mortgage, the Privy Council, and Indian Supreme Court authority — as establishing that the right of redemption is co-extensive with the mortgage itself and subsists until extinguished by a proper decree or act of the parties.
How the Petitioners' Case Was Built and Why It Failed
Counsel for the petitioners relied on two Supreme Court decisions. In Prabhakaran and Others v. M. Azhagiripillai (Dead) by LRs. and Others, (2006) 3 SCC 484, and in Sampuran Singh v. Niranjan Kaur, (1999) 2 SCC 679, the Supreme Court had taken the position that in a usufructuary mortgage which fixes no date for repayment, the right to redeem accrues immediately on execution of the mortgage deed, and the mortgagor must file a redemption suit within 30 years from that date. In Sampuran Singh, the Court had rejected the argument that limitation could not begin until the mortgagor tendered payment, observing that such a construction would mean limitation never started.
On those premises, the petitioners argued that since the mortgage was executed on 28 March 1978 and a four-year period was specified, the right to redeem accrued at the latest on 28 March 1982, and 30 years ran out on 28 March 2012. The suit filed in 2016 was, on this reading, barred by over three years.
Justice Nigam accepted that these were genuine Supreme Court pronouncements but held they no longer represented good law. Counsel for the respondents had pointed out that both Prabhakaran and Sampuran Singh were placed before a larger bench of the Supreme Court, which answered the reference in Singh Ram (D) Thr. L.Rs. v. Sheo Ram and Others, AIR 2014 SC 3447.
The larger bench in Singh Ram examined the question: whether in a usufructuary mortgage where no time limit is fixed for redemption, the right to redeem arises on the date of the mortgage or only when the mortgage money is paid or tendered. It answered that the special right of a usufructuary mortgagor under Section 62 of the Transfer of Property Act to recover possession commences only in the manner specified in that section — that is, when mortgage money is paid out of rents and profits, or partly out of rents and profits and partly by payment or deposit by the mortgagor. Until that moment, limitation does not start for the purposes of Article 61 of the Limitation Act. The larger bench held that the observations in Prabhakaran “do not take into account the special right of usufructuary mortgagor under Section 62 of the T.P. Act” and were accordingly not the correct view in law.
Justice Nigam noted that the view taken by the Punjab and Haryana High Court's Full Bench in Ram Kishan and Others v. Sheo Ram, AIR 2008 P&H 77 — which the larger bench in Singh Ram affirmed — had answered the same question in the negative: the right to redemption in a usufructuary mortgage does not arise on the date of the mortgage but on the date the mortgagor pays or tenders the mortgage money or the balance thereof. A very recent judgment, Harminder Singh (D) through L.Rs. v. Surjit Kaur (D) through L.Rs. and Others, 2022 Legal Eagle SC 1365, reaffirmed the position in Singh Ram.
The Court's Reasoning on the Four-Year Mortgage Period
The petitioners had a secondary argument: even if the general rule did not help them, the mortgage deed here specifically stated a four-year period. The cause of action for redemption therefore accrued on 28 March 1982, and 30 years ran out well before 2016.
Justice Nigam dealt with this briefly but clearly. He held that the four-year period specified in the mortgage deed could, at best, be understood as a restriction on the mortgagor's ability to file a redemption suit during those four years — meaning the mortgagor could not have sued for redemption before 28 March 1982. Whether such a restriction itself amounted to a clog on the mortgagor's rights was a question he expressly declined to decide. What he did decide was that the four-year period could not be read as the trigger from which the 30-year limitation clock started running. The limitation framework for a usufructuary mortgage under Section 62 does not shift merely because a fixed term is mentioned in the deed.
Application to the Facts
Applying the settled legal position to the facts, the court found it admitted that the first-ever tender of the principal sum of Rs. 15,000 was made by the plaintiff-respondents on 30 December 2015, when they sent a bank pay order along with notice to the defendants. The defendants refused to accept it. That date of tender was therefore the date on which the right to recover possession accrued under Section 62 of the Transfer of Property Act, and from which limitation under Article 61(a) commenced. The suit was filed on 3 March 2016, plainly within the 30-year period starting from 30 December 2015. The plaint could not be rejected on limitation grounds under Order 7 Rule 11 CPC.
Order
Justice Manish Kumar Nigam dismissed the Article 227 petition on 1 July 2026. He held that no error had been committed by either the Civil Judge (Junior Division), Bareilly, in its order dated 13 October 2017, or by the Additional District Judge, Court No. 9, Bareilly, in its order dated 8 May 2019, in dismissing the defendants' application under Order 7 Rule 11 CPC. No order as to costs was made. Any interim order in operation stood discharged.