[CONCEPT OF MORTGAGE]SUBMITTED TO-PROF. QAZI USMAN

III SEMESTERJAMIA MILLIA ISLAMIAMOHAMMAD JAVED MALIK

TRANSFER OF PROPERTY ACT,1882

PRELIMINARY

l. Short title

This Act may be called the Transfer of Property Act, 1882.

Commencement: It shall come into force on the first day of July, 1882.

Extent: It extends in the first instance to the whole of India except the

territories which,

immediately before the lst November, 1956, were comprised in Part B States

or in the States of

Bombay, Punjab and Delhi.

But this Act or any part thereof may by notification in the Official Gazette

be extended to the

whole or any part of the said territories by the State Government concerned.

And any State Government may from time to time, by notification in the

Official Gazette, exempt,

either retrospectively or prospectively, any part of the territories

administered by such State

Government from all or any of the following provisions, namely,-

Section 54, paragraph 2 and sections 3, 59, 107 and 123.

Notwithstanding anything in the foregoing part of this section, section 54,

paragraphs 2 and 3,

and sections 59, 107 and 123 shall not extend or be extended to any district

or tract of country for

the time being excluded from the operation of the Indian Registration Act,

1908 (XVI of 1908),

under the power conferred by the first section of that Act or otherwise

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THE ACT

A Bill, finally presented to the Legislative Council, became a law on the

17th of February 1882 and came into force from 1st July of the same year.

The Transfer of Property Act, 1882 mainly deals with transfer of immovable

property. It does not apply to transfers by the operation of law such as

transfer of immovable property necessitated by Order of Court for

insolvency or forfeiture among others. The 137 sections contained within

have been divided into 8 chapters.

Interestingly, nowhere does the Act define ‘What is a transfer of property’.

But it does define ‘transfer’ as a standalone in Section 5.

OBJECTIVES

The Transfer of Property Act, 1882 (hereinafter referred to as the ‘T P Act,

1882’) was intended to define and amend the existing laws and not to

introduce any new principle. It applies only to voluntary transfers. The

following may be enumerated as the objectives of the Act:

a) As per the preamble of the Act, the T P Act, 1882 is to amend or

regulate the law relating to transfer of property by the acts of the parties.

b) The Act provides a clear, systematic and uniform law for the transfer

of immovable property.

c) The Act completes the Code of Contract since it is an enacted law for

transfers that take place in furtherance of a contract.

d) With provision for inter-vivos transfers, the T P Act, 1882 provides a

law parallel to the existing laws of testamentary and intestate transfers.

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e) The Act is not exhaustive and provides scope to apply the principles of

Justice, Equity and Good Conscience if a particular case is not governed by

any provision of law.

The Transfer of Property Act 1882 is an Indian legislation which regulates

the transfer of property in India. It contains specific provisions regarding

what constitutes transfer and the conditions attached to it. According to the

Act, 'transfer of property' means an act by which a person conveys property

to one or more persons, or himself and one or more other persons. The act of

transfer may be done in present or for future. The person may include an

individual, company or association or body of individuals, and any kind of

property may be transferred. includes transfer of Immovable Property.

A comprehensive definition of Immovable Property is not given in the

Transfer of Property Act Section 3, the Interpretation of the Act, says

"Immovable property does not includes standing timber, growing crops or

grass".Section 3(26), The General Clauses Act, 1897, defines, " immovable

property" shall include land, benefits to arise out of land, and things attached

to the earth, or permanently fastened to anything attached to the earth.

Also,The Registration Act,1908, 2(6) "immovable property" includes land,

buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or

any other benefit to arise out of land, and things attached to the earth or

permanently fastened to anything which is attached to the earth, but not

standing timber, growing crops nor grass.

A transfer of property passes forthwith to the transferee all the interest which

the transferor is then capable of passing in the property, unless a different

intention is expressed or implied.

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According to Section 43 of the Transfer of Property Act 1882, in case a

person either fraudulently or erroneously represents that he is authorised to

transfer certain immovable property and does some acts to transfer such

property for consideration, then such a transfer will continue to operate in

future. It will operate on any interest which the transferor may acquire in

such property .

This will be at the option of the transferee and can be done during the time

during which the contract of transfer exists. As per this rule, the rights of

bona fide transferee, who has no notice of the earlier transfer or of the

option, are protected. This rule embodies a rule of estoppel i.e. a person who

makes a representation cannot later on go against it.

Every person, who is competent to contract, is competent to transfer

property, which can be transferred in whole or in part. He should be entitled

to the transferable property, or authorised to dispose off transferable

property which is not his own. The right may be either absolute or

conditional, and the property may be movable or immovable, present or

future. Such a transfer can be made orally, unless a transfer in writing is

specifically required under any law.

According to Section 6 of the Transfer of Property Act, property of any kind

may be transferred. The person insisting non-transferability must prove the

existence of some law or custom which restricts the right of transfer. Unless

there is some legal restriction preventing the transfer, the owner of the

property may transfer it. However, in some cases there may be transfer of

property by unauthorised person who subsequently acquires interest in such

property.

In case the property is transferred subject to the condition which absolutely

restrains the transferee from parting with or disposing of his interest in the

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property, the condition is void. The only exception is in the case of a lease

where the condition is for the benefit of the lessor or those claiming under

him. Generally, only the person having interest in the property is authorised

to transfer his interest in the property and can pass on the proper title to any

other person The rights of the transferees will not be adversely affected,

provided: they acted in good faith; the property was acquired for

consideration ; and the transferees had acted without notice of the defect in

title of the transferor.

It should be noted that these conditions must be satisfied :

There must be a representation by the transferor that he has authority to

transfer the immovable property. The representation should be either

fraudulent or erroneous. The transferee must act on the representation in

good faith. The transfer should be done for a consideration. The transferor

should subsequently acquire some interest in the property he had agreed to

transfer. The transferee may have the option to acquire the interest which the

transferor subsequently acquires.

SCOPE

Since the T P Act, 1882 is not a complete code of transfer of property; we

can say its scope is limited. The Act does not apply to all the transfers taking

place in India.

a) Limitation on Transfer: The Act applies to transfer by the act of parties

and not by application of law. Thus, its operations are limited to transfers by

act of parties only except in a few cases saved by Section 2 of the Act.

b) Not Exhaustive: There are various kinds of property and various

modes of transfer of property. The Act does not incorporate rules for all

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modes of transfer in existence. The Act does not even claim to be a complete

code as apparent from omission of the term ‘consolidate’ from its Preamble.

c) Transfer of Immovable Property: The Act mainly deals with transfer of

immovable properties only.

d) Exemption of Muslim Law: In case of a conflict between the T P Act,

1882 and rules of Muslim Law, the latter will prevail. Section 2 of the Act

does not affect inconsistent rules of Muslim Law. Thus, a settlement made in

perpetuity for the benefit of descendants of the settler is a valid wakf

(charitable gift) wherein there is an ultimate gift in favor of a charity.

e) Exemption of Rights and Incidents: Certain incidents of a contract or

the essential nature of property are exemption from the operation of the Act

by

Section 2. The Act also saves certain property rights. For example, the right

to partition of immovable property is an incident of property but this right is

not affected by the provisions of the T P Act, 1882.

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INTRODUCTION.

The concept of mortgage has its foundation on the English Common Law

principle ‘Once a mortgage, always a mortgage’. The idea behind this

principle is that in a transaction of mortgage, the transferor (here Mortgagor)

transfers one of all his interests in his immovable property to the transferee

(Mortgagee). The Mortgagor, even after transferring one of his interests in

the immovable property, retains some interests with him. These remaining

interests entitle him to redeem his immovable property after the repayment

of the debt for which his property was kept as a security.

The Mortgagor, generally, keeps his immovable property as a

security, in the urgent need of money. His intention is not to sell his property

after taking the money from the Mortgagee. This being, a fundamental

consideration of equity, in England as well as in India, the rule ‘once a

mortgage always a mortgage’ has been recognized, in the transactions of

mortgage. There is plethora of cases that point to the acceptability of this

rule in India.

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TRANSACTION OF MORTGAGE.

Section 58 of the Transfer of Property Act, 1882 (hereinafter referred as ‘the

Act’) defines the contract of mortgage in following words:

58. "Mortgage", "mortgagor", "mortgagee", "mortgage-money" and "mortgage-deed" defined —

(a) A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.

The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed.

In the words of Mahmood J.1, “mortgage as understood in this country can

not be defined better than by the definition of adopted by the Legislature in

Sec. 58 of the Transfer of Property act.”

Dwelling upon the definition and the provision of mortgage, under this

section, following essentials of a mortgage transaction can be drawn:

1. Transfer of interest. A transaction of mortgage involves the transfer

of an interest from the mortgagor to the mortgagee. On this point this

differs from sale because in sale, on the contrary, there is complete

transfer of all the interests in the property. The mortgage is transfer of

interest less than ownership.

1 Gopal v. Parsotam, (1883) 5 All 121 (137) (FB).

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2. Specific immovable property. The interest transferred is that of a

specific immovable property. The property, which has to be

mortgaged, must be defined specifically and not in general terms. The

property must also be immovable property.

3. Securing the payment of debt. The transaction involves the transfer of

an interest for the purpose of securing the payment of a debt, which is

in the nature of money advanced or to be advanced by way of loan, an

existing or future debt, or the performance of an engagement which

may give rise to a pecuniary liability.

The debt in lieu of the mortgaged property constitutes the

consideration of the mortgage. The mortgagor may also execute the

mortgage deed before he gets the full amount from the mortgagor.

Mere ground that the mortgagee did not advance the money on the

date of execution of the deed does not render the transaction of

mortgage ineffective2.

The transaction of mortgage involves the right of the mortgagor to redeem

his immovable property, kept as a security by him. The intention is not to

sell his property. It is mere an urgency of money, that makes the Mortgagor

keep his property as a security for the repayment of his debt.

RIGHT OF REDEMPTION.

Section 60 of the Act lays down the provision of the redemption of the

mortgaged property in following words:

60. Right of mortgagor to redeem —

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

2 State of Kerala v. Cochin Chemical Refineries, AIR 1968 SC 67.

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mortgage-money, to require the mortgagee (a) 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, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost 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.

The right of redemption of the mortgaged property is one of several rights

that are vested in the mortgagor. Right to redeem is the right to recover

something by making certain payments. In case of the mortgage,

mortgagor’s right to redeem is called his right to recover or get back the

property, after he repays the loan.

Dwelling upon the provision of section 60 of the Act, the subject

matter of the right of redemption can described as that right of the

mortgagor, or of any third person directed by him, which entitles him to get

back the possession of the mortgaged property after the payment of the

mortgaged money

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However, if the above stated rights have been extinguished by the act

of the parties or by a decree of the court, they can not be exercised.

The right granted under this section is called the right of redemption

and the suit for its enforcement is called the suit of redemption. The

mortgagee has the right to get a reasonable notice before payment or tender

of such money.

It is the most important right of the mortgagor, through which, the

mortgagor after paying-off the money becomes entitle to get back the

property. At any time after the mortgage- money has become due, the

mortgagor has a right on the payment of the mortgage-money to require the

mortgagee to reconvey the mortgaged property to him. This right of the

mortgagor, through which he is entitled to get the property returned to him,

contemporaneously with the discharge of his obligation, is called the right of

redemption.

POSITION IN THE TRANSFER OF PROPERTY ACT.

Unlike England, the Act does not distinguish between the right to redeem

and equity of redemption. In England, this right was evolved by the

Chancery Courts and was known as equity of redemption. On the following

counts, the mortgagor’s right to redeem can be justified:

1. Transfer of an interest. In a mortgage, the mortgagor transfers one of all

his interests in the immovable property. The mortgagor transfers only an

interest in favour of mortgagee and not the whole interest in the property.

2. Residuary ownership. After creating an interest in favour of mortgagee,

the mortgagor still has the remaining interest. The remaining interest is

called the residuary ownership of the mortgagor in the mortgage-

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property. It is the residuary ownership, by virtue of which, the mortgagor

has the right to redemption vested in him.

3. Purpose is only securing the payment of debt. As per the provisions of

the Transfer of Property Act, in the transaction of mortgage, since there is

a transfer of an interest of the immovable property by the mortgagor for

securing the loan, he is entitled to get back that interest on the repayment

of the loan. By making the payment of the loan with its interest, the

mortgagor becomes entitled to redeem, that is call back the ‘interest’

given to the mortgagee as security for repayment.

4. Principles of equity, justice and good conscience. Mortgagor neither

intends nor desires that the property should go absolutely to mortgagee.

Therefore if the mortgagee is unable to repay the debt on a fixed date and

there is some delay, the law must extend his right to redemption upto a

reasonable time. Principles of equity, justice and good conscience do not

allow that a transaction which is of borrowing nature should become an

absolute conveyance, only on the ground that the debt was not paid on

the fixed date. It is therefore, an inherent right of every mortgagor, laid

down in sec. 60, irrespective of the kind of mortgage.

EQUITY OF REDEMPTION.

The right of redemption of the mortgagor under sec. 60 of the Transfer of

Property Act is based on the equity of redemption under English law.

In England, the mortgagor’s right of redemption was introduced by

the Chancery Courts, also known as the Courts of Equity. The mortgagor’s

right to redeem the mortgage by making payment, even after the due date is

known as equity of redemption. The Chancery Court introduced this right in

order to do justice with cases on mortgage decided under the common law.

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Prior position at Common Law.

At common law, the mortgage was the transfer of legal estate (absolute

interest), subject to a condition. The condition was ‘non-payment of loan

upto fixed date’, which if fulfilled, the mortgaged property belonged

absolutely to the mortgagee. Common law treated the non-payment of debt

upto a specified period as penalty for the mortgagor. The common law gave

no relief to the mortgagor, who failed to repay the debt upto the specified

period, even though he was ready to repay within few days after the

specified period. Thus, in default of the repayment the mortgagor lost all his

rights in his immovable property.

This situation was exploited by the money-lenders, by not accepting

the money on the due date. They knew that if somehow the loan with interest

remained unpaid upto the fixed date, they will become owner of the property

in lieu of the small sum of money, which the debtor took in his urgent need.

Role of Chancery Courts.

Soon the Chancery Courts realized that the main purpose of the mortgage is

to keep the property as a security to the money-lender for the repayment of

money. Therefore, the money-lender should not be given any legal right to

hold on the property absolutely if the mortgagor was ready to repay the debt

within reasonable time after the expiry of the due date. Thus, the right which

was denied by the Common Law was given to the mortgagor by the Courts

of Equity. This right of the mortgagor to redeem even if he was in default

was known as equity of redemption.

Thus, this very principle evolved by the Chancery Courts went against

the common law. Equity started with the notion that stipulation as to time

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(fixed date for repayment) should not be treated as penalty. The Courts even

held it to be the essential character of every mortgage. They provided further

that it was an important right of the mortgagor and it could not be denied in

any manner, not even express agreement of the parties themselves. Equity

declared that ‘once a mortgage, always a mortgage’.

ONCE A MORTGAGE ALWAYS A MORTGAGE.

This maxim implies that the mortgagor’s right of redemption would not be

defeated by any agreement to the contrary, even if the mortgagor himself has

agreed to it. The maxim simply denied the validity of any stipulation in the

mortgage deed, which defeats the mortgagor’s right of redemption. In other

word, a transaction, which at one time is mortgage, could not cease to be so

by having any stipulation in the mortgage deed intended to defeat the

mortgagor’s right of redemption.

The underlying principle of this maxim was stated by LORD

HENLEY in following words:

“This Court as a Conscience is very jealous of persons taking

securities for a loan and converting such securities into purchases.

And therefore I take it to be an established rule, that a mortgagee can

never provide at the time of making the loan for any event or

condition on which the equity of redemption shall be discharged and

the conveyance made absolute. And there is great reason and justice in

this rule for necessitous men are not, truly speaking, free men, but to

answer present exigency, will submit to any terms that the crafty may

impose upon them”3.

3 Vernon v. Bethell, (1762) 1 Eden 113; available in R. K. Sinha’s The Transfer of Property Act, 9 th ed., p. 289.

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CLOG ON REDEMPTION.

The right of redemption continues although the mortgagor fails to pay the

debt at the due date. Any provision inserted in the mortgage-deed which has

the effect of preventing or impeding this right is void as a clog on

redemption. This view was substantiated by LINDLEY M. R. in Stanley v.

Wilde4.

The Supreme Court considered this rule in Murarilal v. Devkaran5,

where the clause incorporated in the mortgage deed provided that the

amount due under the mortgage should be paid within 15 years whereupon

the property would be redeemed. Further it provided that in case payment

was not made within that period, mortgagee would become the owner of the

property. The Supreme Court affirming the decision of the Rajasthan High

Court, held that any stipulation contained in the mortgage deed, which

unreasonably restrained the mortgagor’s equity of redemption can be

ignored by the courtsubject to the general law of limitation prescribed in that

behalf.

a) Long Term for Redemption. It is not necessarily true that a long term

for redemption is always a clog on redemption. However, if the length

of the term is found to be oppressive, redemption would be allowed

before the expiry of that period. A period of 90 years for redemption

has been held to be unreasonable and a clog on redemption6. A period

4 (1899) 2 Ch 474.5 AIR 1965 SC 225.6 Fateh Mohd. v. Ram Dayal, 2 Luck 588.

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of 90 years for redemption has not been held to be a clog on

redemption7.

b) Condition of Sale in Default. A condition in the deed that has the

effect of converting a mortgage into a sale is invalid as a clog on

redemption. such condition converts a mortgage into a sale. Equity

disfavours a mortgage to be converted into a sale. It is therefore void.

In Gulab Chand Sharma v. Saraswati Devi8, there was a mortgage by

conditional sale. The mortgagor was given a time of four years for

repayment of the debt. The mortgage property was on lease. The deed

contained a stipulation that in case the mortgagee receives any notice

from any public authority for breach of covenants of lease within four

years term, the mortgagee shall become owner of the property. The

apex court held this stipulation to be a clog on mortgagor’s right of

redemption and therefore not to be enforced.

But after the execution of the deed, the parties agree to the sale

of the property that does not amount to be a clog on the redemption.

c) Condition Postponing Redemption in Default on a Certain Date.

The condition or stipulation that postpones the mortgagor’s right of

redemption in case of default of payment on a certain date, is regarded

a clog on redemption as it bars or restricts the redemption. In Mohd.

Sher Khan v. Seth Swami Dayal9, the mortgage was for a term of five

years. A stipulation in deed said that if the mortgagor failed to pay the

money, the mortgagee was entitled to take possession of the property

for next 12 years, during which the mortgage could not be redeemed.

7 Massa Singh v. Gopal Singh, AIR 1983 P&H 437.8 AIR (1977) SC 242.9 AIR (1922) PC 17.

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The Privy Council held the stipulation to be a clog on redemption for

it hindered the right of redemption.

d) Restraint on Alienation. A condition, which restraints the mortgagor

from transferring mortgage-property is a clog. In a mortgage, the

mortgagor only transfers an interest in the property and still has

residuary ownership. Hs has every right to transfer the property by

sale, gift etc and can even, effect another mortgage.

e) Collateral benefits to Mortgagee. Collateral benefits to mortgagee are

not necessarily clog on the redemption. In order to establish that the

collateral benefits are clog on the redemption it is necessary that:

a. The collateral benefits given to the mortgagee are unfair and

unconscionable, and

b. The collateral benefits to mortgagee are part of the transaction

of mortgage and not an independent benefit.

In Kreglinger v. New Patagonia Meat & Cold Storage Company

Ltd.10, there was an agreement dated 24 August 1910, whereby a firm

of wool brokers agreed to lend to a company carrying on the business

of meat preservers a sum of £10,000 at 6 per cent. The deed further

provided that if the interest was punctually paid the loan was not to be

called in until 30 September 1915, but the company, might pay off at

any time on giving one calendar month's notice. The loan was secured

by a floating charge on the undertaking of the company. The

agreement provided that for a period of five years from the date

thereof the company should not sell sheepskins to any person other

than the lenders so long as the latter were willing to buy at the best

price offered by any other person and that the company should pay to

10 (1914) AC 25.

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the lenders a commission on all sheepskins sold by the company to

any other person. The loan having been paid off by the company in

January 1913, in accordance with the agreement, the lenders claimed

to exercise their option of pre-emption notwithstanding the payment

off of the loan. The House of Lords held the stipulation for the option

of pre-emption formed no part of the mortgage transaction, but was a

collateral contract entered into as a condition of the company

obtaining the loan. It was not a clog on the equity of redemption or

repugnant to the right to redeem and the lenders were entitled to an

injunction restraining the company from selling sheepskins to any

person other than the lenders in breach of the agreement.

f) Penalty in Case of Default. An agreement which amounts to penalty

in case of non-payment of debt is a clog on redemption.

CASES ON EQUITY OF REDEMPTION.

In Seth Gangadhar v. Shankar Lal and Ors11, it was admitted that the

transaction was that of a mortgage and Section 60 of the Transfer of

Property Act was applicable. The Court held that therein the term of

mortgage was 85 years and there existed no stipulation entitling the

mortgagor to redeem during that term which had not expired. The document

in question was held by this Court to be containing a stipulation creating a

clog on the equity of redemption which was found to be illegal.

11 1959 SCR 509.

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In Pomal Kanji Govindji and Ors. v. Vrajlal Karsandas Purohit and Ors.12,

the Court held that whether a clause used in a transaction of mortgage

amounted to clog on the equity of redemption is a mixed question of law and

fact. In that case, there existed a provision for payment of interest at the rate

of half per cent per annum payable on the principal amount at the end of the

long period which led the Court to conclude that there was a clog on equity

of redemption. Furthermore, in that case, materials were brought on record

to show that the transaction was entered into by way of security for the loan

obtained.

In Shivdev Singh and Anr. v. Sucha Singh and Anr.13, the Court was dealing

with a case of anomalous mortgage. Therein the mortgage was to remain

operative for a period of 99 years. It was in that situation, this Court opined

that the original owner having been in great financial difficulty, the

mortgagees took advantage of the said fact and incorporated a 99 year's term

which constituted a clog on the equity of redemption.

In M.R. Satwaji Rao (D) by L.Rs. vs. B. Shama Rao (Dead) by L.Rs. and

Ors.14, the facts were that on 19.2.1948, the plaintiffs’ predecessor executed

a usufructuary mortgage in favour of the respondents for a sum of Rs.

10,000. The terms of the said mortgage deed were that the mortgagee shall

remain in possession of the mortgaged property without paying rent and that

the mortgage amount of Rs. 10,000 shall carry no interest. The period of

redemption was five years from the date of mortgage. However, the

mortgagors continued in possession of the mortgaged property as tenants of 12 MANU/SC/0372/1988.13 MANU/SC/0230/2000.14 MANU/SC/7478/2008.

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the mortgagee on a monthly rent of Rs. 97.50. As the mortgagors failed to

pay the rent, on 19.5.1952, the mortgagee filed suit before the Ist Munsif,

Bangalore for arrears of rent. The said suit was decreed. In pursuance of the

said decree, the property was put on auction sale by the executing Court.

Mortgagee being the highest bidder purchased the schedule property in court

auction. Sale was confirmed. The mortgagors neither objected for the sale

nor confirmed the sale or take any steps to set aside the sale over three

decades.

On 18.2.1983, the plaintiffs/respondents (mortgagors), after nearly

three decades, filed a suit before Addl. City Civil Judge, Bangalore for a

decree of redemption of the mortgage of the suit schedule property sold in

public auction as long back as on 11.9.1952. The Civil Judge, after

considering both oral and documentary evidence, dismissed the suit with

costs on 31.7.1990. Aggrieved by the said order, the plaintiffs filed an

appeal before the High Court. The High Court allowed the appeal decreeing

the suit for redemption. Against the impugned judgment of the High Court,

the defendants filed the present appeal by way of special leave before the

Supreme Court. The apex court upheld the decision of the High Court.

CONCLUSION.

The equity of redemption has been well recognized in Common Law as well

as in the Indian statutes. The provisions of the Transfer of Property Act,

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1882, explicitly substantiate this principle. In the Indian scenario, various

conditions have been discussed, whereby the stipulations in the mortgage

deed have turned to be the clog on the equity of redemption.

The equity of redemption can be brought to an end either by the act of

parties or by a decree of the court.

BIBLIOGRAPHY.

Text books.

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1. Sarathi, Vepa P., Law of Transfer of Property, 5th ed., 2005, Eastern

Book Company, Lucknow.

2. Saxena, Poonam Pradhan, Property Law, 2006, Lexis Nexis

Butterworths, New Delhi

3. Sinha R.K., The Transfer of Property Act, 4th edition 1999, Central

Law Agency.

4. Singh, Dr. Avtar, Textbook On The Transfer Of Property Act, 2008,

Universal Law Publishing Co.

Statues.

1. The Transfer of Property Act, 1882.

Internet sources.

1. www.manupatra.com

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