HAMZABI Vs. SYED KARIMUDDIN

JUDGEMENT

(1.) The question to be determined in this case is whether Section 53-A of the Transfer of Property Act has any impact on the right of redemption granted by Section 60 of that Act.

(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 vs. Vrajlal Karsandas Purohit, AIR 1989 SC 436 in this context) As far as this country is concerned, the right is statutory recoginised in Section 60 of the Transfer of Property Act. The section gives the mortgagor right to do deem 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:

(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 vs. S. A. Kamtam, AIR 1977 SC 774 has said that "in India it is only on execution of the conveyance and registration of transfer of the mortgagors interest by registered instrument that the mortgagors right of redemption will be extinguished".