Right to Redemption
Right to Redemption
Answer:
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:
Right
of redemption
Clog
on Redemption
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:
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.
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.
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.
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:
Clog
on Redemption and
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.
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.
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.
If
the right of redemption and interest of mortgage vested in one person then the
right is finished.
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-
It
cannot be transferred in any other transaction.
The
right of redemption neither can be ended nor can be Limited or restricted.
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