Right of Redemption – Notes

right-of-redemption

Right of redemption section 60 of Transfer of Property Act describes the right of redemption the word redemption means to make free or get back the mortgaged property by paying mortgage Debt. Redemption is a right of the mortgage by which the mortgaged property is kept secure and the property is returned to the mortgagor.

There are three important provisions made in section 60 of the Transfer of Property Act 1882:

  1. Right of redemption
  2. Clog on Redemption
  3. Once mortgage, always a mortgage.



Section 60 under Right of Redemption

Section 60 Under Transfer of Property Act 1882- Right of the mortgagor to redeem at any time once the principal cash 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 mortgage holder

  • To deliver to the mortgager the mortgage-deed and every one documents concerning the encumbered property that area unit within the possession or power of the mortgage holder,
  • Where the mortgagee has the mortgaged property, to deliver possession thereof to the mortgagor, and
  • At the cost of the mortgagor either to re-transfer the mortgaged property to him or to such person as he could direct or to execute and (where the mortgage has been affected 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 correct presented by this section has not been destroyed by the act of the parties or by decree of a court.

The right presented by this section known as a right to redeem and a suit to enforce it’s called a suit for redemption. Nothing during this section shall be deemed to render invalid any provision to the result that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fastened, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.



Redemption of the portion of encumbered property-Nothing during this section shall entitle someone inquisitive about a share solely of the encumbered property to redeem his own share solely, on payment of a proportionate a part of the quantity remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have nonheritable, in whole or part, the share of a mortgager.

Essential elements of Right of Redemption:

From the above definition following essential of the right of redemption are viewed:

  1. Legal validity of mortgage- the first compulsory element for the applicability of right of redemption is the legal validity of the mortgage. In Vishnu kaya vs Vishnu Maya (A.I.R 1980 Sikkim 1) it was decided by the Sikkim High Court that where registration of mortgage is necessary there a mortgage without registration will be considered illegal and the mortgage does not become entitled to getting compensation on the basis of the mortgage.
  2. Due to principle- the mortgagor can read the mortgage anytime after the mortgage money speed and he can’t be avoided from it accept the degree of the court or any act of the court. IsmiteNathabhaikhatri vs Mooljibhai Shankar Bhai Brahma Bhatt A.I.R. 194 Gujrat. Many times a question arises that whether the mortgage can be redeemed in prior periods? There are different view in this regards. In the case Rozamma vs Rajaratnam 1900 Chennai 33 it has been held that the mortgage can be redeemed prior to the period if nothing is contrary to contract but in the case of Bakhatawar Begum vs HussainiKhanam 1914 Allahabad 195 it has been said that in absence of contract contrary to the mortgage cannot be redeemed prior to the fixed period.
  3. Payment of dues money – The third essential condition of applicability of the right of redemption is the payment of dues money can be done to mortgagee himself or to his agent. Botten vs William’s 1870 C.H.A.655.
    But it is compulsory that such payment must be done without condition and at the proper time and placeVardaraJulu vs Dhanlaxmi1914 M.l.t.365.
  4. Filing of the suit – filling of the suit is compulsory for The Redemption of mortgage the use of the right of redemption cannot be done without filing a suit the suit of redemption can be filed by the mortgagor or by any transferee from his side.



It was decided in the case of Pranil Kumar vs KishoriLal A.I.R 2003 Kolkata 1 that the purchaser of the property by auction can also file a suit of redemption because he has his interest in such property. In the case of Vora Ameen Bhai Ibrahim vs VoraTeharallMohammadee A.I.R 1998 Gujarat 31, it has been held by the Gujarat High Court that the suit of redemption of mortgage can be filed up to A period where the right of redemption does not end.

The doctrine of Clog on Redemption and Once a mortgage, always a mortgage:
Two important principles have been propounded in section 60 of the Transfer of Property Act 1882:

  1. Clog on Redemption and
  2.  Once a mortgage, always a mortgage.

It is mentionable hair that the right of redemption is a right free from restrictions and always remains. In other words, it can be said that the mortgage is always redeemable. It can neither be finished nor making limits. In Rama Shankar Singh vs Silver Screen Corp. Pvt. Ltd ( A.I.R 1998 Kolkata 46) it was decided the right of redemption of mortgagor cannot be finished. In Shiv Dev Singh vs Sucha Singh 2001 L.C.D 121 it was sad that no condition can be put in the deed of mortgage which makes it irredeemable.

In the case Gangadhar vs Shankarlal (A.I.R 1958 SC 770) it has been stated by the supreme court that the right of redemption of mortgage to mortgagor there exist forever this right neither can be finished no limited by any condition of the parties if any such condition is imposed then it will be void.

In Murarilal vs Devkaranit was said that the parties cannot restrict the right of redemption of mortgages Ever After a fixed period if done so such agreement will be void.

It is known that the main object of mortgage is to secure the repayment of mortgage money hence the mortgage exists in the repayment of Debt irrespective of the matter passing of the date of repayment. the right of redemption neither can be extinguished nor be made Limited or restricted.



Exception

Some exception is always there for the rule the right of redemption of mortgage cannot be extinguished under the following circumstances this right can be limited or restricted.

  1. The right of redemption cannot be finished in mortgage deed of the agreement but after it can be finished by submission of the right of redemption or by sale or by any method by the free transaction.
  2. The right can be finished by the degree of court .the mortgagor only has the right to get such decree the right of redemption can be awaited till exercising after the degree for forfeiture of the right of redemption can be passed by the court.
  3. If the right of redemption and interest of mortgage vested in one person then the right is finished.
  4. If the mortgaged property is vested in-state or if the mortgaged property acquisition by the government the right

Once a mortgage, always a mortgage

The rule of opposition on the right of redemption is based on the maximum once a mortgage always a mortgage. Mortgage always remain is mortgage note change or revision can be done in it.  such right of redemption of mortgage cannot be put to an end or cannot be Limited.

In this regard, the case of Knocks vs Roulds (1902 Sc 24) is a good example where under lordDev laid down while making an amendment in the above principle that-

“ once a mortgage always a mortgage and nothing but a mortgage”.

Thus, the word and nothing but a more get had been added in the above magazine by Lord Devy. It has been held in the case of Knocks vs Roulds that the right of redemption of mortgage cannot be filled by any activity that is it cannot be made non-redeemable. If any exercises made then it will null and void. If any condition is imposed by the party then it will also be void. In the instant case, the goodwill and premise were mortgaged by Mr rice to company and a condition was laid down that on payment of mortgage money and interest by Mr rice he will have the right to get back the mortgaged property. The court stated the mortgage deed create a mortgage and search mortgage always remain mortgage. But the limitation of the right of redemption after mortgage by a contract will not be considered an opposition.



 

It is to mention hair that is the condition of converting the mortgage into the sale is also white for the reason of opposition on the right of redemption. A condition that in case of non-payment of mortgage money the mortgagee will hold the mortgaged property as a lease, in the mortgage deed has also been considered illegal and ineffective. At all the intention is that mortgage and the right of redemption of mortgage are co-extensive whether the right of redemption has been a mention or not.

In the case of Vishnu Kaya vs Vishnu Maya (A.I.R 1980 SIKKIM), it has been held by the Sikkim High Court that if any transaction is a transaction of mortgage then on the basis of equity the right of redemption will always be vested in it. It is also the requirement of the principle of natural justice.

On the whole, the mortgage and right of redemption are coextensive whether the right of redemption is described or not, on the whole, the meaning is that once a mortgage is done it will always a mortgage-

  1. It cannot be transferred in any other transaction.
  2. The right of redemption neither can be ended nor can be Limited or restricted.

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