limitation for Usufructuary mortgage
Anandakumara MB
(Querist) 30 October 2009
This query is : Resolved
1. In Usufructuary mortgage the Limitation act commences , when mortgagee demanded the money OR refused by Mortgagor OR after the date of mortgage has been executed???? 2. Also Mortgagor retain the possession with them from the date of mortgageexecuted, when the limitation starts?
3. If mortgaged executed in 1945 then which limitation will aplly?? either 1963 or 1908 for the property in litigation.
A V Vishal
(Expert) 30 October 2009
Article 61(a) of the Limitation Act, 1963 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.
Refer Prabhakaran & Ors. Vs. M. Azhagiri Pillai (Dead) by LRs. & Ors.
niranjan
(Expert) 30 October 2009
The law narrated by Mr. Vishal is sufficient to satisfy the uerry. I agree.
Raj Kumar Makkad
(Expert) 30 October 2009
Nothing to add more in the detailed reply given by Vishal. I also go with him.
Anandakumara MB
(Querist) 03 November 2009
The mortgagor retains the possession of the property about 60yrs till date. They enjoying the property peacefully till date, but recently mortgagee filed the suit for declaration. The mortgagor took agricultural loan for the same property from the Co-Operative Society. The mortgagee has the knowledge of the mortgagor enjoying the property.
Whether the mortgagee’s rights has extinguished or Not??
