Skip to main content

Usufructuary mortgagor has a right to redeem the mortgage at any point of time

Citation : Harminder Singh Vs Surjit Kaur, Civil Appeal  No.89 Of 2012

Date of Judgment/Order : 27th April, 2022

Court/Tribunal : The Supreme Court Of India

Corum : Hemant Gupta & V. Ramasubramanian. J.

Background

One Gulab Singh – mortgaged his share of land in favour of Rajinder Singh on 02.05.1921 with possession. The defendants inherited the estate of Gulab Singh whereas Rajinder Singh - mortgagee died issueless and his rights were inherited by his wife – Rajinder Kaur. Rajinder Kaur sold her mortgagee rights to the plaintiff vide sale deed dated 18.06.1979.

Since the mortgage was not redeemed by the mortgagor within a period of 30 years, the plaintiff filed a suit for declaration that she had become the owner after the extinguishment of the mortgage rights and for permanent injunction.

The suit was decreed by the trial Court. Such decree was affirmed by the First Appellate Court as well but in Second Appeal, the suit was dismissed relying upon the judgment of this Court in ‘Sampuran Singh Vs. Niranjan Kaur’, reported in (1999) 2 SCC 679.

Judgment

Agreeing with the Appellate court and while dismissing the appeal, the Supreme Court observed that  the Full Bench of the Punjab and Haryana High Court in ‘Ram Kishan & Ors. Vs. Sheo Ram & Ors.’ reported in AIR 2008 P&H 77 held that once a usufructuary mortgage is created, the mortgagor has a right to redeem the mortgage at any point of time on the principle that once a mortgage always a mortgage. Such judgment was affirmed by this Court in ‘Singh Ram (Dead) Through Legal Representatives Vs. Sheo Ram & Ors.’ reported in (2014) 9 SCC 185.

The maxim ‘once a mortgage always a mortgage’ means that there can no covenant that modifies the character of the mortgage agreed between the parties that would stop the mortgagor to redeem his property back on payment of the principal and respective interests. It is the connotation of the fact that the mortgagee will always remain as mortgagee and can never become an owner. All acts he commits in order to exalt himself as an owner are perceived to be a clog on redemption.

The doctrine of equity of redemption is expressed in this maxim and it is an exception to the principle, ‘the agreement of the parties overrides the law.’ The maxim, established in 1681 by Lord Nottingham in the case of Harris v. Harris is basically to safeguard the mortgagor’s right to redemption. In the case of Noakes & Co v. Rice, the maxim was interpreted by Lord Davey as ‘That a mortgage cannot be made irredeemable and that a provision to that effect is void’. Therefore, one of the manifestations of this maxim is that the clog on the equity of redemption is void. No matter whether the provision that makes a mortgage irredeemable is there in the mortgage deed itself or any collateral but connected transaction outside the mortgage contract, it is void to the extent to which it prevents the mortgagor from getting his whole of the property back on repayment of the mortgaged money.

Comments

Post a Comment

Most viewed this month

The recovery of vehicles by the financier not an offence - SC

Special Leave Petition (Crl.) No. 8907  of 2009 Anup Sarmah (Petitioner) Vs Bhola Nath Sharma & Ors.(Respondents) The petitioner submitted that  respondents-financer had forcibly taken away the vehicle financed by them and  illegally deprived the petitioner from its lawful possession  and  thus,  committed  a crime. The complaint filed by the petitioner had been  entertained  by  the Judicial Magistrate (Ist Class), Gauhati (Assam) in Complaint Case  No.  608 of 2009, even directing the interim custody of the vehicle (Maruti  Zen)  be given to the petitioner vide order dated  17.3.2009.  The respondent on approaching the Guwahati High  Court against this order, the hon'ble court squashed the criminal  proceedings  pending   before  the  learned Magistrate. After hearing both sides, the Hon'ble Supreme Court decided on 30th...
7 comments
Read more

Valuation Report of Jewellery once made is effective for Four Assessment Years

The division Bench of the Delhi High Court in Pr.Commissioner of Wealth Tax vs. Raghu Hari Dalmia held that a valuation report made by a registered valuer once adopted shall be in effect for four assessment years unless an event has occurred whereby the value is increased or decreased. The High Court made it clear that the event of “search” under Section 132 of the Income Tax Act, 1961 cannot compel the assessee to undertake a fresh valuation.
2 comments
Read more

Mere Agreement To Sell The Leased Property To Tenant Would Not Terminate Landlord-Tenant Relationship

In CIVIL APPEAL Nos. 1237­1238 OF 2019, Dr. H.K. Sharma vs Shri Ram Lal, the tenant had objected against the eviction suit filed by the landlord, claiming that the landlord-tenant relationship between them had ceased to exist by virtue of an agreement for sale entered between them and that he has already paid some money in advance based on the agreement. The tenant contented as the landlord-tenant relationship did not exist, the landlord cannot evict him. The matter went through various forums and finally landed before the Supreme Court in appeal. The Supreme Court referring to the judgment in Shah Mathuradas Maganlal & Co. vs. Nagappa Shankarappa Malage & Ors., held that in the instant case the lease agreement included no clauses on the fate of the tenancy. A fortiori, the parties did not intend to surrender the tenancy rights despite entering into an agreement of sale of the tenanted property. In other words, if the parties really intended to surrender their tenancy ...
2 comments
Read more