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Mortgagor's Right of Redemption

Mortgagor’s Right of Redemption [Section 60]

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:
  1. 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,
     
  2. where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and
     
  3. 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 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 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.1 Redemption of the portion of mortgaged property in this section does not entitle a person interested in a share only of the mortgaged property to redeem his desired share only, on payment of a proportionate amount for the part and the amount due on the mortgage. Exception is only there where a mortgagee or if there are more mortgagees has acquired in whole or in part of the share of mortgagor.

Section 60 has three different provisions described in it 2:

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

The section deals with the mortgage when the principal amount remains due. The redemption varies according to the form of mortgage.

There are three kinds of primary kind of redemption:

  1. Delivery of the possession back to the mortgagor
  2. Delivery of the title documents and the mortgage deed.
  3. Returning the property in favor of the mortgagor. 3

Essential requirements of Right of Redemption

  1. Redemption before time period- Here the essential element is that the time duration mentioned in the mortgage deed is to be followed. Only after getting a decree from the court or with the consent of the both the parties the time duration of deed could be changed and the party can redeem the mortgage before the time mentioned in the deed. The mortgagor cannot avoid it. It was held in Bakhatawar Begum vs HussainiKhanam4, many questions were raised regarding the redemption of the deed before time period mentioned in the deed. The court here held that it can be done through court decree and same view was accepted in Pranil Kumar vs KishoriLal 5, the court further held that the property could be redeemed before the time period mentioned if the contract does not state anything contrary towards the point.
     
  2. Validity of the deed- It is quintessential and primary requirement of the mortgage deed to be legally valid and can be held up in the court of law. It was held in Vishnu kaya vs Vishnu Maya 6 that the deed should be registered fulfilling all the criteria of the registration. It was further held that only after the deed is registered the mortgage can redeem the property after paying the dues or take the mortgagee to the court.
     
  3. Payment of money due- It was first held in VardaraJulu vs Dhanlaxmi7  in India that payment of the dues is essential for the redemption of the property given to the mortgagee.
     
  4. Filing of the suit- Filing of suit is considered to be the primary duty of the mortgagor before redemption of the property. The right of redemption of the property can only be exercised after a suit is filed in the suit.

Rights and Duties of the Mortgagor

The right and duties of the mortgagor are mentioned as follows Rights: 8

  • The mortgagor has the right to redeem the property after the payment of dues.
  • The mortgagor has the true ownership over the property and only he can pass the title.
  • Once an owner is always an owner.
  • The mortgagor has the right to receive the property in the state it was given or in the form as specified in the contract.
  • The mortgagor has the right to redeem the property prior to the time mentioned in the deed by getting a decree of the court.
  • The mortgagor also has the right to extend or renew the lease.

Duties

  • The mortgagor has duty to not waste the property.
  • He has the duty to indemnify for the defective title.
  • He also has the duty to compensate the mortgagee for any loss caused to him.
  • He also the duty to direct rent of a lease of mortgagee.

Exception of Right of Redemption:

  1. The right of redemption can't be done in a mortgage deed of the understanding yet after it tends to be done by the accommodation of the right of redemption or by deal or by any strategy by the free exchange.
  2. The right can be exercised by the decree of the court.
  3. The mortgagor just has the option to get such declaration regarding the right of redemption can be anticipated until practicing after the decree for forfeiture of the right of redemption can be passed by the court.
  4. On the off chance that the right of redemption and interest of mortgage vested in one individual then the right is done.
  5. In the event that the property is vested in-state or if the property secured by the decree of the court.

Once a mortgage always a mortgage

The above-mentioned statement state that once a mortgage deed is always a mortgage deed and it cannot be changed. It will always remain a mortgage deed and revision or change can be done but it should not affect the right of redemption. It was held in the case of Knocks v. Roulds 9, that the right of

redemption on a mortgage can't be filled by any action that makes it non-redeemable. If any changes made at that point it will invalid and void. In the event that any condition is forced by the party, at that point it will likewise be void. The court stated that the deed to make a mortgage and such a contract would remain a mortgage contract. In any case, the constraint of the right of redemption after mortgage by a contract won't be considered as resistance.

It is to make reference here that the transactional state of converting mortgage into sale deed is likewise white for the explanation of opposition on the right of redemption. A condition that in case of non- payment of any installment of mortgage money the mortgagee will hold the mortgaged property as a lease, in the mortgage deed the following is considered to be illicit and ineffective. At all the goal is that contract and the right of redemption of mortgage are co-broad whether the redemption has been noticed or not.

On account of Vishnu Kaya versus Vishnu Maya10, it has been held by the Sikkim High Court that in the event that any transaction is a transaction of mortgage, at that point based on the value the right of redemption will consistently be vested on it. It is likewise the prerequisite of the guideline of common equity and the principle of natural justice.

The mortgage and the right of redemption exist together and whenever there is a mortgage, right of redemption comes along with it. The same goes hand in hand:

  • It cannot be transferred through any other transaction.
  • The right of redemption can neither be ended nor limited, it will remain in a mortgage deed.

Doctrine of Clog on Redemption

The phrase once a mortgagee is always a mortgagee, the following phrase means that the mortgagee would always remain a mortgagee and never become an owner. He cannot transfer the property rights to a third party as he does not have the authority to pass on the benefits of the property. The phrase is a part of equity of fairness.11 To ensure no exploitation takes place the courts developed this phrase.

Accordingly, a mortgage deed establishes two things, one being the right of the creditor which is limited up to his interest and other being deducting the residuary interest of the creditor from it. In a mortgage deed the right of redemption is always there and cannot be written off unless the debtor fails to pay the amount or he wishes to do so. The right is equitable to right to redeem.12

The premise of this doctrine lies in the practice of value, equity, and a good conscience and is applicable to areas where acts are not applicable. On reasonable scrutiny of the functions of a mortgage, it is seen in the majority of the cases that the mortgagor goes into such an agreement as a result of some monetary difficulty. The law perceives the power of the predominant party to embed provisos that will serve his own advantages by making obstacles on the right of redemption13 and the same philosophy was also taken into consideration in U. Nilan v. Kannayyan (Dead) Through Lrs.14

Conclusion
The right of redemption of the mortgagor is the inherent right provided in the mortgage deed. On looking at the various aspects of the mortgage deed, the right of redemption forms a primary part of the mortgage deed. Furthermore, the right of redemption is applicable only after the mortgagor has performed the rights and duties assigned to them.

A mortgage deed cannot be altered and made a sale deed, neither the mortgagee becomes the owner of the property as the same is against basic principle of the mortgage deed. Thus, the right of redemption of a mortgagor is secured by the court and provides them protection against exploitation caused to them. Furthermore Section 60 of TPA aims to secure the interest of the mortgagor and also it provides the essentials of the mortgage deed and the movement of the property.

End-Notes:
  1. The Transfer of Property Act, § 60, 1882.
  2. J. K. (Bombay) Pvt. Ltd. v. New Kaiser-I-Hind Spginning and Weaving Co. Ltd. and Juggilal Kamlapat Bankers and Ors. (Creditors), [1969] 2 SCR 866.
  3. Rashbehary Ghose, Law of Mortgage, (first published in 1875, Kamal Law House 2006).
  4. Bakhatawar Begum vs HussainiKhanam [1914] BOMLR 16 [1914] 344.
  5. Pranil Kumar vs KishoriLal [2002] Kolkata 1 [2002] A.I.R 2003.
  6. Vishnu kaya vs Vishnu Maya [1980] Sikkim 1 [1980] AIR 1980.
  7. VardaraJulu vs Dhanlaxmi [1914] MIT 365.
  8. Mirzawardahbeg ‘Right and Liabilities of the Mortgagor’ (iPleaders, June 27, 2019) accessed April 17 April, 2020.
  9. Knocks v. Rould [1902] Sc 24, [1902].
  10. Vishnu Kaya v. Vishnu Maya [1980] Sikkim 1 [1980] AIR 1980.
  11. Poonam Pradhan Saxena, Property Law (first published 2006, LexisNexis Butterworths 2011) 344.
  12. Ambalal Jasraj v. Ambalal Badarwal, (1955) Raj 321(1955) AIR 1957.
  13. Bhullan v. Bachcha, (1931) All 380 (1931) AIR 1931.
  14. U. Nilan vs Kannayyan (Dead) Through Lrs (1999).

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