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Thursday, September 4, 2014

Sec.62 of T.P. Act & Art.61 of Indian Limitation Act - limitation for redemption of mortgaged property when time not fixed for payment - suit for declaration after 60 years by mortgagee predecessors against the mortgagor predecessors - trial court dismissed the suit as the plaintiff never pleaded that he or his predecessors made demands for payment of mortgage money and the mortgagor or his predecessors refused to pay the same - Appellant court and High court too confirmed the same - Apex court held that In cases where distinction in usufructuary mortgagor’s right under Section 62 of the T.P. Act has been noted, right to redeem has been held to continue till the 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.We, thus, hold that special right of usufructuary 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 not start for 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. We answer the question accordingly. 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.The appeals are dismissed.= CIVIL APPEAL NO.5198 OF 2008 Singh Ram (D) Thr. L.Rs. ... Appellant (s) Versus Sheo Ram & Ors. ... Respondent (s) = 2014 - Aug. Part - http://judis.nic.in/supremecourt/filename=41839

Sec.62 of T.P. Act & Art.61 of Indian Limitation Act - limitation for redemption of mortgaged property when time not fixed for payment - suit for declaration after 60 years by mortgagee predecessors against the mortgagor predecessors - trial court dismissed the suit as the plaintiff never pleaded that he or his predecessors made demands for payment of mortgage money and the mortgagor or his predecessors refused to pay the same - Appellant court and High court too confirmed the same - Apex court held that In cases where distinction in usufructuary mortgagor’s right under Section 62 of the T.P. Act has been noted, right to redeem has been held to continue till the 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.We, thus, hold that special right of usufructuary 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 not start for 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. We answer the question accordingly. 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.The appeals are dismissed.=

“1. Whether the right to seek redemption would arise on the date of
mortgage itself in case of usufructuary mortgage when no time limit is
fixed to seek redemption?
2. Whether there is any time limit in the case of a usufructuary
mortgagor to get his property redeemed?”

“As it appears that observations made by this Court
in Prabhakaran & Ors. vs. M. Azhagiri Pillai & Ors., reported in 2006 (4) SCC 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 Mhoprekar & Anr. vs. Krishna Babaji Patil & Anr., [1985 (4) SCC 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.”=

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, 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 running from the date when the mortgagee demands the
money and the mortgagor refused the same.
Discussion on the said 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 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 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).
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 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 against
the plaintiffs and in favour of defendants.”=
T.P. Act and the Limitation Act:-
“T.P. Act

58. "Mortgage", "mortgagor", "mortgagee", "mortgage-money" and "mortgaged"
defined.

(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 of loan, an existing or future debt, or the performance of
an engagement which may give rise to a pecuniary 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 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 binds himself personally to pay the mortgage-money,
and agrees, expressly or impliedly, 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 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 ostensibly sells the
mortgaged property-

on condition that on default of payment of the mortgage-money on a certain
date the sale shall become absolute, or

on 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,

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 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 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, or partly in lieu of interest or partly in payment of
the mortgage-money, the 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 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.

(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, 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 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 called an anomalous mortgage.

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 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 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 of a court.

xxx xxx xxx

62. Right of usufructuary mortgagor to recover possession

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,-

(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 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 or deposits it in court hereinafter provided.

xxx xxx xxx

Limitation Act:-

Art. 61 By a mortgagor

|a) To redeem or |Thirty |When the right to |
|recover possession of|years |redeem or to recover |
|immovable property | |possession accrues |
|mortgaged | | |
|b) xxxxxxx | |xxxxxxxx |
| | | |
| |xxxxxx | |

In
cases where distinction in usufructuary mortgagor’s right under Section 62
of the T.P. Act has been noted, right to redeem has been held to continue
till the 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 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 not start for 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. We answer
the question accordingly.

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.
17. The appeals are dismissed.

2014 - Aug. Part - http://judis.nic.in/supremecourt/filename=41839

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5198 OF 2008

Singh Ram (D) Thr. L.Rs. ... Appellant (s)
Versus
Sheo Ram & Ors. ... Respondent (s)

With

Civil Appeal No. 7941 of 2014 @ S.L.P.(C) No. 26861 of 2008, Civil Appeal
No. 1113 of 2009, Civil Appeal No. 7942 of 2014 @ S.L.P.(C) No. 2097 of
2009, Civil Appeal No. 7943 of 2014 @ S.L.P.(C) No. 6355 of 2009 Civil
Appeal No. 5562 of 2009, Civil Appeal No. 7944 of 2014 @ S.L.P.(C) No.
22604 of 2009, Civil Appeal No. 7947 of 2014 @ S.L.P.(C) No. 23963 of
2009, Civil Appeal No. 8551 of 2009, Civil Appeal No. 7948 of 2014 @
S.L.P.(C) No. 25422 of 2011, Civil Appeal No. 7951 of 2014 @ S.L.P.(C) No.
34380 of 2011, Civil Appeal No. 7953 of 2014 @ S.L.P.(C) No. 1274 of 2012,
Civil Appeal No. 7954 of 2014 @ S.L.P.(C) No. 1275 of 2012, Civil Appeal
No. 5256 of 2012, Civil Appeal No. 7955 of 2014 @ S.L.P.(C) No. 19048 of
2012, Civil Appeal No. 7956-58 of 2014 @ S.L.P.(C) Nos. 772-774 of 2013,
Civil Appeal No. 7959 of 2014 @ S.L.P.(C) No.5790 of 2013, Civil Appeal
No. 9616 of 2010, Civil Appeal No. 6014 of 2014, Civil Appeal No. 5727 of
2011, Civil Appeal No. 8132 of 2011 and Civil Appeal No. 7573 of 2009

J U D G M E N T

Adarsh Kumar Goel, J.

1. Leave granted in SLPs.

2. These matters have been put up before this Bench 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 Prabhakaran & Ors.
vs. M. Azhagiri Pillai & Ors., reported in 2006 (4) SCC 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 Mhoprekar & Anr. vs. Krishna Babaji Patil & Anr., [1985 (4) SCC
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.”

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 Punjab and Haryana at 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:-

“Therefore, we answer the questions framed to hold that in case of
usufructuary mortgage, where no time limit is fixed to seek redemption, the
right to seek redemption would not arise on the date 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 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 subject matter of consideration
before this Court.

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, 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 running from the date when the mortgagee demands the
money and the mortgagor refused the same. Discussion on the said 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 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 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).
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 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 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 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 for the mortgage amount and it was refused. In
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 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.”

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 mortgage when no time limit is
fixed to seek redemption?
2. Whether there is any time limit in the case of a usufructuary
mortgagor to get his property redeemed?”

6. The Full Bench held that in case of usufructuary mortgage, limitation
for recovery 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 (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 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 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, 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
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 of 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 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 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 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 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 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 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 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 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 foreclosure is co-extensive with the right to seek
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 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 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 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 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 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) 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 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 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
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 expiry thereof, right to recover possession
comes to an end. The expiry of limitation not only bars the remedy but also
the right 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 SCC 679. There is
no occasion to reconsider the said view. Reliance is also placed on a Full
Bench decision 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
of limitation for 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).

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 and profits of which the mortgagee was entitled to recover the
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 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.
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 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 of the
T.P. Act and the Limitation Act:-
“T.P. Act

58. "Mortgage", "mortgagor", "mortgagee", "mortgage-money" and "mortgaged"
defined.

(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 of loan, an existing or future debt, or the performance of
an engagement which may give rise to a pecuniary 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 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 binds himself personally to pay the mortgage-money,
and agrees, expressly or impliedly, 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 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 ostensibly sells the
mortgaged property-

on condition that on default of payment of the mortgage-money on a certain
date the sale shall become absolute, or

on 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,

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 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 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, or partly in lieu of interest or partly in payment of
the mortgage-money, the 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 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.

(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, 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 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 called an anomalous mortgage.

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 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 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 of a court.

xxx xxx xxx

62. Right of usufructuary mortgagor to recover possession

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,-

(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 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 or deposits it in court hereinafter provided.

xxx xxx xxx

Limitation Act:-

Art. 61 By a mortgagor

|a) To redeem or |Thirty |When the right to |
|recover possession of|years |redeem or to recover |
|immovable property | |possession accrues |
|mortgaged | | |
|b) xxxxxxx | |xxxxxxxx |
| | | |
| |xxxxxx | |

(emphasis supplied)

A perusal of above provisions shows that Article 61 refers to right to
redeem or recover possession. While right of 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 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 on 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 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 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 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.
13. We may now refer to decisions of this Court.
(i) In Prabhakaran & Ors. vs. M. Azhagiri Pillai & Ors., (2006) 4 SCC
484, suit of mortgagor for redemption was held to be within limitation.
However, in para 13, it was observed:-
“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 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 is 30 years. The period of limitation begins
to run when the right to redeem 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
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 possession
of any property, his right to such property shall 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.”

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. Thus, we are unable to accept the same as correct view in law.
(ii) In Jayasingh Dhyanu Mhoprekar & Anr. vs. Krishna Babaji Patil & Anr.,
1985 (4) SCC 162, the question of limitation for redemption was not
involved. Question was whether mortgagor’s right of redemption was affected
when mortgaged land was allotted to mortgagees by way of grant under the
provisions of the Bombay Paragana and Kulkarni Watans (Abolition) Act,
1950, it was observed:-
“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 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 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 right of redemption
has come to an end or that the 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 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
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 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 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, 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) 10 SCC 172 was contrary to earlier view in 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:

“[4.] It is admitted that the case is governed by the 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 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. [pic]Husaini Khanam,ILR (1914)
36 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 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 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 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 Santley v.
Wilde, (1899) 2 Ch. 474 in these words:

‘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
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 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 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 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 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 of the
Transfer of Property Act. So it was said in Mohd. Sher Khan v. Seth Swami
Dayal, AIR 1922 PC 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 [pic]satisfaction
of the interest would be perfectly valid if it did not also hinder an
existing right to redeem. But it is this that the present mortgage
undoubtedly purports to effect. It is expressly stated to be for five
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
mortgagor had a right on payment of the mortgage 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, 1914 AC 25 (AC at pp. 35-36):

‘This jurisdiction was merely a special application of a 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. 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 lose the land forever. What made
the hardship on the debtor a glaring one was that the debt still remained
unpaid and could be recovered from the feoffor notwithstanding that he had
actually forfeited the land to the mortgagee. Equity therefore, at an early
date 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 jurisdiction has been evolved ought to govern and
limit its exercise by equity judges. That end has always been to ascertain,
by parol 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 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
otherwise, was looked 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 want of conscience. [pic]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 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 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 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 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 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 question in this case. We think it enough to say that
we 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 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 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 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 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 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 lender,
nor that the mortgagor was under 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 demand payment of his dues at any time
[pic]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.”

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 alia, held as
follows: (SCC p. 576, para 3)

“The sale certificate, Ext. C-II 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.”

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
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:-
“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 of redemption and, therefore the suit for redemption must
fail. The [pic]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 for consideration is whether in the facts and 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 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 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 the
act must take the shape and observe the formalities which the law
prescribes. The expression “act of parties” refers to 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 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 a
vexed question, but being in an advantageous position where the mortgagee
availing himself of his position gains 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 Ramanuj 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
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 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 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 submit that whereas Order 34 Rule 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 “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 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.

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 or expressly or by
implication binds himself to deliver possession of the mortgaged property
to the mortgagee, 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 [pic]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 transaction is called an usufructuary mortgage and the
mortgagee an usufructuary mortgagee.”

9. Mortgagor, despite having mortgaged the property 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 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 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. 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 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 the ancient law of India. 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 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 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 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 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 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 invalid any provision to
the effect that, if the time fixed for payment of the principal money has
[pic]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.”

12. A right of redemption, thus, was statutorily 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 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:

“In 1681 Lord Nottingham in the leading case of Howard v. Harris4 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 to redeem and also
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. Rice5 in
which the maxim was explained to mean ‘that a mortgage cannot be made
irredeemable and a provision to that effect is void’. The maxim has been
supplemented in the Indian context by the words ‘and therefore always
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 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 legem (custom and agreement overrule
law). Secondly, the 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, any stipulation
which prevents a mortgagor from getting back the property 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 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, if the right to redeem could be limited
by contract between the 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
[pic]appropriately and effectively extinguished either by the acts of the
parties concerned or by a proper 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:

“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 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, the mortgage contract might
provide for an option for the mortgagee to purchase the mortgaged property,
thus defeating both the legal and equitable right to redeem, or might allow
redemption after the contract date only upon payment of an additional sum
or upon performance of some additional obligation. 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 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’. This means that once a contract is seen to be a
mortgage no provision in the contract will be valid if it is inconsistent
with the right of the mortgagor to recover his security on discharging his
obligations. Provisions offending against the maxim may either 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 termed ‘clogs’ on the equity of redemption. Greene, M.R. in
Knightsbridge Estates v. Byrne7 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 the equity of redemption, since they tend to defeat it
altogether.”

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, if the 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 [pic]he should
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 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 expressly stating that
the term will cease at the 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 became
absolute and irredeemable, but that equity intervened to enable the
mortgagor to redeem after the date of repayment.

There are, therefore, two distinct rights of redemption — the legal or
contractual right to redeem on the appointed day and the equitable right to
redeem 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).”

16. The question which falls for consideration in this 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 limitation provided for a suit to redeem or
recover the possession of immovable 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.

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 and to receive rents and
profits or part thereof in lieu of interest, or in payment of mortgage-
money, or partly in 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 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 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 property has been passed or before the confirmation of a sale
held in pursuance of a final decree passed under 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 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, 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 of the proviso appended to Section 60
of the Act which is extinguished either by a decree or by act of parties.
[pic]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.

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 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.

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. Suraj Ahir, (1963) 3 SCR 302, this Court
approved the observations of Allahabad High Court in Rama Prasad vs.
Bishambhar Singh, AIR 1946 All 400, that Sections 60 and 62 of T.P. Act
make distinction in right of a usufructuary mortgagor and other mortgagor
as follows:-
“11. In Ramprasad v. Bishambhar Singh, AIR 1946 All 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 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 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 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
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, 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 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
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 as an 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” and the avoidance of provisions obstructing
redemption as “clogs on redemption” are expressions of this judicial
protection. (See: Pomal Kanji Govindji v. Vrajlal Karsandas Purohit (1989)
1 SCC 458 in this context.) As far as this country is concerned, the right
is statutorily recognised in Section 60 of the Transfer of Property Act.
The section gives [pic]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 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 not been
extinguished by act of the parties or by decree of a court.”

3. While the expression “decree of court” is explicit enough, 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 mortgagee. This Court
in Narandas Karsondas v. S.A. Kamtam, (1977) 3 SCC 247 has said that: (SCC
p. 254, para 34)”

(viii) Contrary view has been expressed in Sampuran Singh & Ors. vs.
Smt. Niranjan Kaur(smt.) & Ors., (1999) 2 SCC 679 as follows:-
“14. Submission was, as aforesaid, that right to redeem only accrues when
either the mortgagors tender the amount of mortgage or the mortgagees
communicate satisfaction of the mortgage amount through the usufruct from
the land. This submission is misconceived, as aforesaid, if this
interpretation 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
clear that right of redemption accrues from the very first day unless
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 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 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, in our considered opinion the
period of limitation would start from the very date the valid mortgage is
said to have been executed and hence the period of limitation of 60 years
would start from the very date of oral mortgage, that would be from March
1893. In [pic]view of this, we do not find any error in the decision of the
first appellate court or the High Court holding that the suit of the
present appellants is time-barred.”

However, facts mentioned in para 3 show that possession remained with
mortgagor and it was not a case of usufructuary mortgage.
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 been noted, right to redeem has been held to continue
till the 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 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 not start for 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. We answer
the question accordingly.

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.
17. The appeals are dismissed.

.............................................J.
[ T.S. THAKUR ]

............................................J.
[ C. NAGAPPAN ]

...........................................J.
[ ADARSH KUMAR GOEL ]
New Delhi
August 21, 2014

Sec.29 & Sec.31 of State Financial Corporations Act - Sale of mortgaged property of guarantor to third parties as the original borrower failed to pay installments and not made available his hypothicated vehicle for sale directly under sec.29 - Writ - High court allowed - Apex court held that High court rightly allowed the writ and further held that However, the appellant before us is the purchaser of the property sold under Section 29 of the Act, who parted with the money in order to purchase the property. He is a victim of an illegal procedure adopted by the Orissa State Financial Corporation. The law regarding the authority of the State Financial Corporations to invoke the provisions of Section 29 with respect to properties other than those belonging to defaulter industrial concern is clearly declared by this Court in Karnataka State Financial Corporation (supra) by its judgment dated 30th March, 2008 whereas the sale in question before us is dated 9th February, 2009, almost a year later. The authorities of the 9th respondent Corporation sold the properties to the appellant herein in flagrant violation of the settled position of law. We, therefore, direct the 9th respondent to refund the amount of Rs.10,09,000/- (rupees ten lakhs nine thousands) to the appellant with interest calculated at the rate 12% per annum. However, it is open to the Orissa State Financial Corporation to recover the amounts either from the defaulter - industrial concern or from such other third party against whom the Corporation has a legal right to proceed.= CIVIL APPEAL NO.7936 OF 2014 (Arising out of SLP(C) No. 12961 of 2011) Subhransu Sekhar Padhi …Appellant Versus Gunamani Swain & Others …Respondents = 2014 - Aug. Part - http://judis.nic.in/supremecourt/filename=41836

Sec.29 & Sec.31 of State Financial Corporations Act - Sale of mortgaged property of guarantor to third parties as the original borrower failed to pay installments and not made available his hypothicated vehicle for sale directly under sec.29 - Writ - High court allowed - Apex court held that High court rightly allowed the writ and further held that However, the appellant before us is the purchaser of the property sold under Section 29 of the Act, who parted with the money in order to purchase the property. He is a victim of an illegal procedure adopted by the Orissa State Financial Corporation. The law regarding the authority of the State Financial Corporations to invoke the provisions of Section 29 with respect to properties other than those belonging to defaulter industrial concern is clearly declared by this Court in Karnataka State Financial Corporation (supra) by its judgment dated 30th March, 2008 whereas the sale in question before us is dated 9th February, 2009, almost a year later. The authorities of the 9th respondent Corporation sold the properties to the appellant herein in flagrant violation of the settled position of law. We, therefore, direct the 9th respondent to refund the amount of Rs.10,09,000/- (rupees ten lakhs nine thousands) to the appellant with interest calculated at the rate 12% per annum. However, it is open to the Orissa State Financial Corporation to recover the amounts either from the defaulter - industrial concern or from such other third party against whom the Corporation has a legal right to proceed.=

Some time in the financial year 2002-2003, the 9th
respondent i.e. the Orissa State Finance Corporation (hereinafter referred
to as “OSFC”) sanctioned a term loan of Rs. 5,26,500/- for purchase of a
TATA truck in favour of the 6th respondent who is wife of the 7th
respondent.
The said loan transaction is secured by a mortgage of certain
piece of land by the father-in-law of the 6th respondent and father of the
7th respondent (since died).

3. As the borrower did not make the repayments in terms of the agreement
between OSFC and the borrower, the OSFC attempted to seize the truck which
was also hypothecated to the OSFC.
As the same was not traceable, the OSFC
proceeded against the mortgaged property.
The value of the said property
was estimated at about Rs. 10,08,000/-.
Eventually, the property was
brought to sale by auction on 9.2.2009 where the appellant became the
highest bidder for an amount of Rs.10,09,000/-.
The OSFC confirmed the sale
in favour of the appellant. On 31.3.2009, possession of the mortgaged
property was handed over to the appellant.

4. On 10.6.2009, the OSFC after appropriating the amounts due to it
intimated the three sons of the mortgagor (respondent Nos. 2, 7 and 8
herein) to collect the residue amount of Rs.2,86,460/- from the
Corporation.=

The right of financial Corporation in terms of Section 29 must be
exercised only on a defaulting party. Section 29 does not empower the
Corporation to proceed against the surety even if some properties are
mortgaged or hypothecated to it. Our view is further strengthened by the
provisions of sub-section(4) of Section 29 which lays down appropriation of
sale proceeds with reference to only industrial concern and not surety or
guarantor.

5. Challenging the seizure and sale of the mortgage property, the writ
petition came to be filed by the wife and children of the mortgagor. The
appellant herein and OSFC contested the writ petition. By the impugned
judgment herein, the writ petition was allowed, hence the appeal.=

Whether the OSFC was legally entitled to invoke Section 29 of the Act and
bring the properties of guarantors to sale without resorting to the
procedure contemplated under Section 31 of the Act.

Whether the High Court was right in entertaining a challenge to the sale
from 150 days after the sale took place and the property was handed over to
the auction purchaser (appellant herein)=

in Karnataka State Financial Corporation v. N. Narasimahaiah
& Others, (2008) 5 SCC 176. In that case, this Court categorically held[1]
that it is only the properties of the defaulter which can be proceeded
against under Section 29 of the Act but not against the properties of the
third parties whether they are guarantors, mortgagors etc.

However, the appellant before us is the purchaser of the property
sold under Section 29 of the Act, who parted with the money in order to
purchase the property. He is a victim of an illegal procedure adopted by
the Orissa State Financial Corporation.  The law regarding the authority of
the State Financial Corporations to invoke the provisions of Section 29
with respect to properties other than those belonging to defaulter
industrial concern is clearly declared by this Court in Karnataka State
Financial Corporation (supra) by its judgment dated 30th March, 2008
whereas the sale in question before us is dated 9th February, 2009, almost
a year later. The authorities of the 9th respondent Corporation sold the
properties to the appellant herein in flagrant violation of the settled
position of law.  We, therefore, direct the 9th respondent to refund the
amount of Rs.10,09,000/- (rupees ten lakhs nine thousands) to the appellant
with interest calculated at the rate 12% per annum. However, it is open to
the Orissa State Financial Corporation to recover the amounts either from
the defaulter - industrial concern or from such other third party against
whom the Corporation has a legal right to proceed.

12.   Appeal is dismissed.

2014 - Aug. Part - http://judis.nic.in/supremecourt/filename=41836

Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7936 OF 2014
(Arising out of SLP(C) No. 12961 of 2011)

Subhransu Sekhar Padhi …Appellant

Versus

Gunamani Swain & Others …Respondents

J U D G M E N T

Chelameswar, J.

1. Leave granted.

2. Aggrieved by the judgment dated 6.12.2010 of the High Court of Orissa
in Writ Petition (C) No. 13033 of 2009, one of the respondents therein who
is the purchaser of the property in an auction held under Section 29 of the
State Financial Corporations Act, 1951 (for short “the Act”) preferred the
instant appeal. Some time in the financial year 2002-2003, the 9th
respondent i.e. the Orissa State Finance Corporation (hereinafter referred
to as “OSFC”) sanctioned a term loan of Rs. 5,26,500/- for purchase of a
TATA truck in favour of the 6th respondent who is wife of the 7th
respondent. The said loan transaction is secured by a mortgage of certain
piece of land by the father-in-law of the 6th respondent and father of the
7th respondent (since died).

3. As the borrower did not make the repayments in terms of the agreement
between OSFC and the borrower, the OSFC attempted to seize the truck which
was also hypothecated to the OSFC. As the same was not traceable, the OSFC
proceeded against the mortgaged property. The value of the said property
was estimated at about Rs. 10,08,000/-. Eventually, the property was
brought to sale by auction on 9.2.2009 where the appellant became the
highest bidder for an amount of Rs.10,09,000/-. The OSFC confirmed the sale
in favour of the appellant. On 31.3.2009, possession of the mortgaged
property was handed over to the appellant.

4. On 10.6.2009, the OSFC after appropriating the amounts due to it
intimated the three sons of the mortgagor (respondent Nos. 2, 7 and 8
herein) to collect the residue amount of Rs.2,86,460/- from the
Corporation.

5. Challenging the seizure and sale of the mortgage property, the writ
petition came to be filed by the wife and children of the mortgagor. The
appellant herein and OSFC contested the writ petition. By the impugned
judgment herein, the writ petition was allowed, hence the appeal.

6. Two questions arise for our consideration;

Whether the OSFC was legally entitled to invoke Section 29 of the Act and
bring the properties of guarantors to sale without resorting to the
procedure contemplated under Section 31 of the Act.

Whether the High Court was right in entertaining a challenge to the sale
from 150 days after the sale took place and the property was handed over to
the auction purchaser (appellant herein)

7. In the impugned judgment, the High Court answered the first question
emphatically against the OSFC.
“The right of financial Corporation in terms of Section 29 must be
exercised only on a defaulting party. Section 29 does not empower the
Corporation to proceed against the surety even if some properties are
mortgaged or hypothecated to it. Our view is further strengthened by the
provisions of sub-section(4) of Section 29 which lays down appropriation of
sale proceeds with reference to only industrial concern and not surety or
guarantor.

xxx xxx xxx xxx

In view of the above, we are of the considered view that the OSFC in
exercise of power vested under Section 29 of the SFC Act cannot sell out
the properties mortgaged to it by the guarantors.”

As a consequence of such conclusion, the second question is also answered
against the OSFC.
“14. In view of the above, sale of the properties of the guarantors and
subsequent execution of deed of transfer under Annexure-5 are liable to be
quashed for being done in flagrant violation of the statutory provision
contained in Section 31 of the SFC Act which we direct accordingly.”

8. The High Court rested its judgment rightly on a decision of this
Court reported in Karnataka State Financial Corporation v. N. Narasimahaiah
& Others, (2008) 5 SCC 176. In that case, this Court categorically held[1]
that it is only the properties of the defaulter which can be proceeded
against under Section 29 of the Act but not against the properties of the
third parties whether they are guarantors, mortgagors etc.

9. A submission is sought to be made that the impugned judgment is
contrary to the ratio of the decision of this Court in A.P. State Financial
Corporation v. M/s. GAR Re-rolling Mills & Another, (1994) 2 SCC 647. In
our opinion, the said decision has no application to the facts of the
present case. It was a case where the APSFC initially proceeded against
Section 31 of the Act against the properties mortgaged by the borrower
(industrial concern) and obtained an order/decree but subsequently invoked
the powers under Section 29. The question before this Court was – whether
the Financial Corporation set up under Section 3 of the State Financial
Corporation Act is entitled to take recourse to the remedy available to it
under Section 29 of the Act even after having obtained an order or a decree
after invoking the provisions of Section 31 of the Act but without
executing that decree/order? This Court held[2] that it is always open to
the State Financial Corporation to resort to such a course of action.

10. Therefore, we do not see any merit in the appeal.

11. However, the appellant before us is the purchaser of the property
sold under Section 29 of the Act, who parted with the money in order to
purchase the property. He is a victim of an illegal procedure adopted by
the Orissa State Financial Corporation. The law regarding the authority of
the State Financial Corporations to invoke the provisions of Section 29
with respect to properties other than those belonging to defaulter
industrial concern is clearly declared by this Court in Karnataka State
Financial Corporation (supra) by its judgment dated 30th March, 2008
whereas the sale in question before us is dated 9th February, 2009, almost
a year later. The authorities of the 9th respondent Corporation sold the
properties to the appellant herein in flagrant violation of the settled
position of law. We, therefore, direct the 9th respondent to refund the
amount of Rs.10,09,000/- (rupees ten lakhs nine thousands) to the appellant
with interest calculated at the rate 12% per annum. However, it is open to
the Orissa State Financial Corporation to recover the amounts either from
the defaulter - industrial concern or from such other third party against
whom the Corporation has a legal right to proceed.

12. Appeal is dismissed. Costs quantified at Rs.1,00,000/- (rupees one
lakh) to be borne by the 9th respondent Corporation. It is open to the 9th
respondent Corporation to recover the said amount from such of those
officers who are responsible for taking a wrong decision to proceed against
the property in question under Section 29 of the Act.

13. All the payments, as directed above, shall be made within a period of
30 days from today.

………………………….J.
(J. Chelameswar)

……………………..….J.
(A.K. Sikri)
New Delhi;
August 21, 2014

-----------------------
[1] Para 20. Section 29 of the Act nowhere states that the corporation
can proceed against the surety even if some properties are mortgaged or
hypothecated by it. The right of the financial corporation in terms of
Section 29 of the Act must be exercised only on a defaulting party. There
cannot be any default as is envisaged in Section 29 by a surety or a
guarantor. The liabilities of a surety or the guarantor to repay the loan
of the principal debtor arises only when a default is made by the latter.
[2] Para 17. The relief available to the Corporation under Section 29
of the Act to realise its dues in the manner rescribed therein is wider in
scope than the limited reliefs available to it under Section 31 of the Act
and is not controlled by Section 31 of the Act. The Legislature clearly
intended to preserve the rights of the Corporation under Section 29 of the
Act, by expressly stating in Section 31 of the Act, that its recourse to
action under that section is without prejudice to the provisions of Section
29 of the Act. What alone is not desirable or permitted, by the Act is to
pursue both the remedies simultaneously by the Corporation and not
that it cannot withdraw or abandon the proceedings initiated under
Section 31 at ’any stage’ and then take recourse to the provisions of
Section 29 of the Act. Any interpretation which frustrates the right of the
Corporation to recover its dues must be eschewed. Similarly, if in a given
case, the Corporation has taken recourse to the provisions of Section 29 of
the Act, there is no bar for it without taking those proceedings to their
logical conclusion to abandon them and approach the court under Section 31
of the Act to seek one or more of the reliefs available to it under that
section. Where, the defaulting party fails to honour the order or decree of
the court made under Section 31 of the Act, it has neither any legal nor
even a moral right to object to the Corporation from taking recourse to the
provisions of Section 29 of the Act only on the ground that it has obtained
a proper relief under Section 31 of the Act which relief it does not wish
to pursue any further. Indeed, if the order of the court issued under
Section 31 of the Act has been fully complied and honoured with by the
defaulting concern, no occasion would arise for the Corporation to invoke
the provisions of Section 29 of the Act. However, to hold that since the
Corporation has initially taken action under Section 31 of the Act and
obtained an order/decree from the court, the Corporation is prohibited from
invoking the provisions of Section 29 of the Act, notwithstanding the fact
that the defaulting concern has not honoured the court’s order or decree
made under Section 31 of the Act, would amount to putting premium of the
activities of the defaulting concern aimed at frustrating the order/decree
of the court and
depriving the Corporation of recovering its legitimate dues and
thereby rendering the expression "without prejudice to ..." occurring in
Section 31 otiose. Courts do not favour such a course.

-----------------------
8

Sec.302 r/w 34 & 120 (B) of I.P.C.- mere presence of Accused No.3 present out side of the house - no offence made out- trial court and High court convicted - Apex court held that There is no evidence of his having played any part in the crime. He was merely seen by the witness as standing outside the house when the witness came home. Mahesh did not even act as a guard; he did not prevent Anil Kumar (PW-21) from entering the house. There is no evidence of the formation or sharing of any common intention with the other accused.There is no reference to a third person in the FIR; no evidence that he came with the other accused or left with them. No weapon was seized from him, nor was any property connected with the crime, seized. Having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict Mahesh of the offence of murder with the aid of Sections 34 and 120(B). We therefore, hold that the accused Mahesh (accused no. 3) in Criminal Appeal No. 867 of 2013 is innocent and the conviction against him is set aside.= CRIMINAL APPEAL No. 822 OF 2012 RAJU @ DEVENDRA CHOUBEY …. APPELLANT VERSUS STATE OF CHHATISGARH …. RESPONDENT = 2014 - Aug.Part - http://judis.nic.in/supremecourt/filename=41835

Sec.302 r/w 34 & 120 (B) of I.P.C.- mere presence of Accused No.3 present out side of the house - no offence made out- trial court and High court convicted - Apex court held that There is no evidence of his having played any part in the crime. He was merely seen by the witness as standing outside the house when the witness came home. Mahesh did not even act as a guard; he did not prevent Anil Kumar (PW-21) from entering the house. There is no evidence of the formation or sharing of any common intention with the other accused.There is no reference to a third person in the FIR; no evidence that he came with the other accused or left with them. No weapon was seized from him, nor was any property connected with the crime, seized. Having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict Mahesh of the offence of murder with the aid of Sections 34 and 120(B). We therefore, hold that the accused Mahesh (accused no. 3) in Criminal Appeal No. 867 of 2013 is innocent and the conviction against him is set aside.=

MERE PRESENCE OF ACCUSED - WITH OUT ANY CONTRIBUTIONS NOR IN ACCOMPANY OF OTHER ACCUSED - ENTITLED FOR ACQUITTAL

In particular it was submitted that the role attributed to the
accused was that he merely stood outside the house.
He did not even act as
a guard because when the witness Anil Kumar (PW-21) came to the house, he
was not even stopped by the accused from entering the house.
The learned
counsel for Mahesh (accused no.3) relied on several decisions of this Court
in Suresh Sakharam Nangare Vs. State of Maharashtra (2012) 9 SCC 249, Jai
Bhagwan Vs. State of Haryana AIR 1999 SC 1083 and Ramashish Yadav Vs. State
of Bihar (1999) 8 SCC 555.

21. It is settled law that common intention and conspiracy are matters of
inference and if while drawing an inference any benefit of doubt creeps in,
it must go to the accused vide Baliya Vs. State of M.P. (2012) 9 SCC 696.

22. On a careful conspectus of the facts and the law, we are of the view
that the prosecution has failed to prove the guilt of Mahesh beyond
reasonable doubt.
There is no evidence of his having played any part in
the crime.
He was merely seen by the witness as standing outside the house
when the witness came home.
Mahesh did not even act as a guard; he did not
prevent Anil Kumar (PW-21) from entering the house.
There is no evidence of
the formation or sharing of any common intention with the other accused.
There is no reference to a third person in the FIR; no evidence that he
came with the other accused or left with them.
No weapon was seized from
him, nor was any property connected with the crime, seized.
Having regard
to the role attributed to him and the absence of incriminating factors we
find that it is not safe to convict Mahesh of the offence of murder with
the aid of Sections 34 and 120(B).

23. We therefore, hold that the accused Mahesh (accused no. 3) in
Criminal Appeal No. 867 of 2013 is innocent and the conviction against him
is set aside. His bail bonds stand cancelled and sureties are discharged.

2014 - Aug.Part - http://judis.nic.in/supremecourt/filename=41835

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 822 OF 2012

RAJU @ DEVENDRA CHOUBEY …. APPELLANT

VERSUS

STATE OF CHHATISGARH …. RESPONDENT

WITH

CRIMINAL APPEAL NO. 867 OF 2013

WITH

CRIMINAL APPEAL NO. 589 OF 2014

WITH

CRIMINAL APPEAL NO. 1781 OF 2014
[Arising out of SLP (Crl.) No. 3737 OF 2014]

1 JUDGMENT

S. A. BOBDE, J.

Leave granted in SLP (Crl.) No. 3737/2014.

2 These appeals are preferred by four accused against the common
Judgment of the High Court of Chhattisgarh at Bilaspur, confirming the
Judgment of the Additional Sessions Judge, Bemetara, District Durg,
convicting the appellants under Section 302 read with Sections 34 and 120B
of the Indian Penal Code [hereinafter referred to as “IPC”] and sentencing
each of them to undergo imprisonment for life with a fine of Rs. 1,000/-,
and in default, to undergo additional rigorous imprisonment for three
months. These appeals have been taken up for disposal together since they
arise from a common judgment of the High Court deciding the appeals of the
accused.

3. The appellant - Raju @ Devendra Choubey (accused no. 4) has filed
Criminal Appeal No. 822 of 2012. The appellant - Mahesh (accused no. 3)
has filed Criminal Appeal No. 867 of 2013. The appellant - Beenu @ Chandra
Prakash (accused no. 2) has filed Criminal Appeal No. 589 of 2014. The
appellant - Smt. Shashi Tripathi (accused no. 1) has filed Criminal Appeal
arising out of Special Leave Petition (Criminal) No. 3737 of 2014.

4. PW-1 – Dr. Sharda Prasad Tripathi is the husband of accused Shashi
Tripathi. On 25.11.2003, when PW-1 – Dr. Sharda Prasad Tripathi came home
from his clinic, found that his daughter-in-law Bhavna Tripathi has been
murdered. He lodged a First Information Report (F.I.R.) on 25.11.2003 at
about 20:45 hours. The crime was registered. He deposed in court that on
25.11.2003, when he returned home, he found servant Anil Kumar (PW-21) was
weeping. When he went inside, he found his daughter-in-law - Bhavna and
wife - Shashi lying in the courtyard. Bhavna was dead. Shashi was
unconscious. There were numerous injuries, including incised wounds on
Bhavna, none on Shashi.

5. After registration of the crime, inquest was conducted over the dead
body of Bhavna on 26.11.2003. Post mortem was conducted by Dr. Naresh
Tiwari and Dr. M. Deodhar, who gave their report which is marked as Exhibit
P/18. Spot map was prepared by the Inquiry Officer (IO); bloodstained
cloth of accused Shashi Tripathi was taken into possession along with
broken bangles; bloodstained cement mortar and plain cement mortar were
also taken into possession. Shashi Tripathi, Mahesh and Binu @ Chandra
Prakash were arrested on 29.11.2003. A bloodstained knife was taken into
possession. The accused Raju @ Devendra Choubey was taken into custody on
22.12.2003 and a Suzuki motorcycle was also taken into possession.

6. A test identification was conducted by the Executive Magistrate in
the Sub Jail, Bemetara on 13.12.2003. A similar identification parade of
Raju @ Devendra Choubey was conducted on 26.12.2003 after his arrest.

7. A sealed packet containing hair found in the grip of the deceased and
another sealed packet containing bloodstained cloth of the deceased were
taken into possession vide Exhibit P/35.

8. After committal, the Trial Court framed charges under Section 302
read with Sections 34 and 120B of the IPC. The prosecution examined 32
witnesses. No defence witness was examined after the statements of the
accused were recorded under Section 313 of the Criminal Procedure Code,
1973.

9. According to the prosecution the accused Shashi Tripathi is the step
mother-in-law of deceased Bhavna Tripathi. Bhavna was married to her step
son – Jitendra Kumar in July, 2003. Shashi Tripathi used to be annoyed
with Bhavna Tripathi on account of some domestic dispute. She engaged the
other accused for murdering Bhavna. Bhavna was murdered on 25.11.2003 at
about 18:30 hours in the house where she resided with Shashi Tripathi.

10. There is no dispute that Bhavna’s death is homicidal. Dr. M.
Deodhar, who conducted the postmortem, opined that cause of her death was
neurogenic and hemorrhagic shock. The injuries found on person of the
deceased were as follows:

“External Injuries:

(1) incised wound on left scapular region of size 3 cm x 1 cm;

(2) incised wound on left scapular region of size 4 cm x 1 ½ cm x 1 ½ cm;

(3) one incised wound on left auxiliary region on the posterior auxiliary
region of size 3 cm x 2 cm x 3 cm;

(4) incised wound on lower costal region left of size 3 ½ cm x 2 cm x 1
cm;

(5) incised wound on lower costal region right side on right epigestic
region of size 3 ½ cm x 3 cm with punctured wound;

(6) incised wound over right costal region of size 3 cm x 2 cm x 1 cm;

(7) incised wound on right supra mammary region near middle of size 4 cm x
1 cm x 1 ½ cm;

(8) incised wound on right supra mammary region lateral aspect of size 3 cm
x 1 ½ cm x 1 ½ cm;

(9) incised wound on radial aspect of left forearm near wrist joint of size
2 ½ cm x ½ cm x ½ cm;

(10) incised wound on forearm left hand radial side dorsal aspect on lower
2/3rd region;

(11) incised wound on left forearm middle l/3rd region, radial side and
posterior aspect of size 2 ½ cm x 1½ cm x 1 cm;

(12) incised wound on left hand dorsal aspect on 2nd and 3rd metacarpal
region of size 2½ cm x ½ cm x 1½ cm;

(13) incised wound on ulna region of left hand on lower 1/3rd region of
size 1 cm x ½ cm x 1 cm; and

(14) incised wound over left side of neck, on anterior triangle of size 2
cm x ½ cm x 1 ½ cm.

Internal injuries:

Brain membrane pale; lungs, trachea pale, punctured wound on right and left
lungs of size 2 cm x 1 cm, 2 ½ cm and 1 cm x 3 cm; lobe was cut and there
was 3 cm punctured wound. Incised wound was also present on the right lobe
of size 3 cm x 1/3 cm x 3½ cm. Liver, kidney and spleen were pale. The
deceased was carrying fetus of two months.”

11. The sole eyewitness was a boy of 13 years of age – Anil Kumar (PW-
21), who worked as a servant with the family. Shashi Tripathi had brought
him home from Bilaspur. He participated in the identification parade,
which was held in Sub Jail, Bemetara, and identified the accused persons in
the court by touching them.

12. We have carefully examined the manner in which the identification
parade was conducted and the manner in which the boy – Anil Kumar (PW-21)
identified the accused in Court and we have no reason to doubt the
identification of the accused, which assumes importance in this case since
the boy did not know the accused before the incident.

13. It is Anil Kumar (PW -21), who first informed the head of the family
Dr. Sharda Prasad Tripathi (PW-1), the complainant, about the incident,
when he came home after closing his clinic. He deposed before the Court
that Shashi Didi (accused) brought him to village – Jevra from Bilaspur.
He lived in the house of Shashi Didi. He ate his food there and studied in
a school. He deposed that Doctor Sahab is her husband and Shivendra and
Jitendra are her sons. Jitendra is her step-son and the deceased Bhavna
is the wife of Jitendra. She resided with Shashi Didi. Jitendra is a
doctor, resided and practiced at Khamaria, whereas his wife resided at
Jevra. His brother – Shivendra studies at Calcutta. He referred to Bhavna
as Bhabhi. He stated that Shashi Didi and Bhavna sometimes used to
quarrel.

14. About the assault, he deposed that Devendra caught Bhavna and Chandra
Prakash attacked her with knife 3 to 4 times and she fell down. The
incident occurred in the courtyard and Shashi Didi was present in the
passage. Mahesh, the fourth accused, was standing outside the house.
After the assault, Chandra Prakash went to the TV room where Shashi Didi
had kept some money in a rubber band on the table. The accused – Chandra
Prakash had threatened him not to disclose anything about the incident to
anyone. Thereafter all the three accused fled from there. He further
deposed that Shashi Didi took him upstairs to the terrace and asked him not
to disclose the truth to anyone but to say that thieves came into the house
and committed the crime. Shashi Didi thereafter started shouting. Then
she lay down on the courtyard near Bhavna Bhabhi.

15. This deposition clearly implicates accused Nos. 1, 2 and 4. The
picture that emerges is that Shashi Tripathi caused Bhavna to be killed and
for this purpose engaged Chandra Prakash (accused No. 2) and Raju @
Devendra Choubey (accused No. 4) by paying them money. She also seems to
have had a scuffle with Bhavna, which is apparent from the fact that her
hair was found in the grip of the deceased during investigation. It is
obvious that accused nos. 2 and 4 did not enter the house to commit a
robbery and had a single mission, namely, to kill Bhavana. There is no
evidence that they had any previous animosity with the deceased and
appeared to have acted as contract killers.

16. The prosecution has found it difficult to pinpoint the motive but
Shashi Tripathi’s husband Dr. Sharda Prasad Tripathi (PW-1) deposed before
the Court that she tried to create a hindrance in the marriage of his son
Jitendra since she wanted her daughter Abhilasha to marry him; however, he
went ahead with the marriage of Jitendra to Bhavna, whereupon Shashi
Tripathi remained silent.

17. The credibility of the evidence of Anil Kumar (PW-21) was attacked by
the learned counsel for the appellants, who submitted that the boy is a
tutored witness, who has been influenced by the police with whom he spent a
lot of time. In fact, he even came to the Court in the company of a police
constable after being served summons at Allahabad. The learned counsel
submitted that the evidence of a child witness must be carefully
scrutinized before acceptance since a child can be easy prey for tutoring
and the court must insist on corroboration from other evidence.

18. On a careful perusal of the deposition of this child witness, we have
not found any reason why he would have lied. He was brought to the house
by Shashi Tripathi (accused), who apparently took care of him and sent to
school and gave him food and residence. He had no grouse against her
neither any ulterior motive in identifying the accused, who were not
acquainted to him. There was no reason for the sole eye witness - Anil (PW-
21) to implicate anybody falsely. Merely because he has been some time in
the company of the police at the police station his testimony cannot be
discarded as untrue. The incident occurred within the four walls of the
house of the accused - Shashi Tripathi and the only witness was the boy –
Anil (PW-21). His statement that the accused Chandra Prakash attacked the
deceased is corroborated by the recovery of knife from Chandra Prakash. It
must be remembered that the boy comes from a rural back ground and was 13
years of age when the incident occurred. His presence in the house is
entirely natural and we have no reason to discard his testimony.

19. The learned counsel for the appellants forcefully attacked the
conviction of the other accused viz. Mahesh, Chandra Prakash and Devendra
Kumar, who admittedly were not known to the child witness Anil Kumar. It
was submitted that the test identification parade were delayed and the
identification of these accused by the witness in Court was not reliable.
It is not possible for us to accept this contention. Mahesh and Chandra
Prakash were arrested on 29.11.2003, their identification parade was
conducted on 13.12.2003 - (within a fortnight or so). The accused Devendra
Kumar was arrested on 22.12.2003 and his identification parade was
conducted on 26.12.2003- (within four days). There is no evidence on
record to show that the child witness had an opportunity to see and study
the features of the accused between their arrest and test identification
parade to enable a tutored identification. In any case, the period between
the arrest and the identification parade was not large enough to constitute
inordinate delay. The learned counsel for the appellants relied upon the
Judgment of this Court in Budhsen and Anr. Vs. State of U.P. (1970) 2 SCC
128 where this Court made the following observations:-

“7. Now, facts which establish the identity of an accused
person are relevant under Section 9 of the Indian Evidence Act. As a
general rule, the substantive evidence of a witness is a statement made in
court. The evidence of mere identification of the accused person at the
trial for the first time is from its very nature inherently of a weak
character. The evidence in order to carry conviction should ordinarily
clarify as to how and under what circumstances he came to pick out the
particular accused person and the details of the part which the accused
played in the crime in question with reasonable particularity. The purpose
of a prior test identification, therefore, seems to be to test and
strengthen the trustworthiness of that evidence. It is accordingly
considered a safe rule of prudence to generally look for corroboration of
the sworn testimony of witnesses in court as to the identity of the accused
who are strangers to them, in the form of earlier identification
proceeding. There may, however, be exceptions to this general rule, when
for example, the court is impressed by a particular witness, on whose
testimony it can safely rely, without such or other corroboration. The
identification parades belong to the investigation stage. They are
generally held during the course of investigation with the primary object
of enabling the witnesses to identify persons concerned in the offence, who
were not previously known to them. This serves to satisfy the investigating
officers of the bona fides of the prosecution witnesses and also to furnish
evidence to corroborate their testimony in court. Identification
proceedings in their legal effect amount simply to this: that certain
persons are brought to jail or some other place and make statements either
express or implied that certain individuals whom they point out are persons
whom they recognise as having been concerned in the crime. They do not
constitute substantive evidence. These parades are of the essentially
governed by Section 162, Criminal Procedure Code. It is for this reason
that the identification parades in this case seem to have been held under
the supervision of a Magistrate. Keeping in view the purpose of
identification parades the Magistrates holding them are expected to take
all possible precautions to eliminate any suspicion of unfairness and to
reduce the chance of testimonial error. They must, therefore, take
intelligent interest in the proceedings, bearing in mind two
considerations: (i) that the life and liberty of an accused may depend on
their vigilance and caution and (ii) that justice should be done in the
identification. Those proceeding should not make it impossible for the
identifiers who, after all, have, as a rule, only fleeting glimpses of the
person they are supposed to identify. Generally speaking, the Magistrate
must make a note of every objection raised by an accused at the time of
identification and the steps taken by them to ensure fairness to the
accused, so that the court which is to judge the value of the
identification evidence may take them into consideration in the
appreciation of that evidence. The power to identify, it may be kept in
view, varies according to the power of observation and memory of the person
identifying and each case depends on its own facts, but there are two
factors which seem to be of basic importance in the evaluation of
identification. The persons required to identify an accused should have had
no opportunity of seeing him after the commission of the crime and before
identification and secondly that no mistakes are made by them or the
mistakes made are negligible. The identification to be of value should also
be held without much delay. The number of persons mixed up with the accused
should be reasonably large and their bearing and general appearance not
glaringly dissimilar. The evidence as to identification deserves,
therefore, to be subjected to a close and careful scrutiny by the Court…….”

The observations of this Court undoubtedly lay down the correct law and we
have no reason to doubt them. We, however, do not see how the observations
help the appellants. In the present case, the child witness has been found
to be reliable. His presence is not doubted, since he resided with the
family for whom he worked. He had no axe to grind against any of the
accused. He became the unfortunate witness of a gruesome murder and
fearlessly identified the accused in Court. In his deposition he specified
the details of the part which the accused played with reasonable
particularity. In such a situation, it is considered a safe rule of
prudence to generally look for corroboration of the sworn testimony of
witness in Court as to the identity of the accused who are strangers to
them, in the form of earlier identification proceeding, as observed by this
Court in Budhsen’s case (supra). This Court has not laid down the
requirement in general that all identification parades must be under the
supervision of a Magistrate as in Budhsen’s case (supra). The learned
counsel for the appellants also relied upon the Judgments of this Court in
Subash and Shiv Kumar Vs. State of U.P. (1987) 3 SCC 331, and Mohd. Abdul
Hafeez Vs. State of Andhra Pradesh AIR 1983 SC 367. The facts and
circumstances of the cases are however different and it is not necessary to
consider those cases in detail while dealing with the present case.
Suffice it to say that those cases do not create any doubt as regards the
conviction in this case.

20. Mr. P.C. Agrawala, learned senior counsel for the appellant Mahesh
(accused no. 3), vehemently submitted that this accused ought not to have
been convicted under Section 302 with the aid of Sections 34 and 120 (B) of
IPC. In particular it was submitted that the role attributed to the
accused was that he merely stood outside the house. He did not even act as
a guard because when the witness Anil Kumar (PW-21) came to the house, he
was not even stopped by the accused from entering the house. The learned
counsel for Mahesh (accused no.3) relied on several decisions of this Court
in Suresh Sakharam Nangare Vs. State of Maharashtra (2012) 9 SCC 249, Jai
Bhagwan Vs. State of Haryana AIR 1999 SC 1083 and Ramashish Yadav Vs. State
of Bihar (1999) 8 SCC 555.

21. It is settled law that common intention and conspiracy are matters of
inference and if while drawing an inference any benefit of doubt creeps in,
it must go to the accused vide Baliya Vs. State of M.P. (2012) 9 SCC 696.

22. On a careful conspectus of the facts and the law, we are of the view
that the prosecution has failed to prove the guilt of Mahesh beyond
reasonable doubt. There is no evidence of his having played any part in
the crime. He was merely seen by the witness as standing outside the house
when the witness came home. Mahesh did not even act as a guard; he did not
prevent Anil Kumar (PW-21) from entering the house. There is no evidence of
the formation or sharing of any common intention with the other accused.
There is no reference to a third person in the FIR; no evidence that he
came with the other accused or left with them. No weapon was seized from
him, nor was any property connected with the crime, seized. Having regard
to the role attributed to him and the absence of incriminating factors we
find that it is not safe to convict Mahesh of the offence of murder with
the aid of Sections 34 and 120(B).

23. We therefore, hold that the accused Mahesh (accused no. 3) in
Criminal Appeal No. 867 of 2013 is innocent and the conviction against him
is set aside. His bail bonds stand cancelled and sureties are discharged.

24. In view of the above, Criminal Appeal No. 867 of 2013 is allowed and
Criminal Appeal Nos. 822 of 2012, 589 of 2014 and Criminal Appeal arising
out of SLP (Criminal) No. 3737 of 2014 are dismissed.

………………………….…..........…..J.
[DIPAK MISRA]

.................................………J.

[S.A. BOBDE]

NEW DELHI,
AUGUST 21, 2014

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