HAMZABI AND ORS. versus SYED KARIMUDDIN AND ORS.

Citation: [2000] SUPP. 5 S.C.R. 99 · Decided: 28-11-2000 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Appeal(s) allowed

Judgment (excerpt)

.. 
HAMZABl AND ORS. 
v. 
SYED KARlMUDDlN AND ORS. 
NOVEMBER 28, 2000 
[V.N. KHARE AND MRS. RUMA PAL, JJ.] 
Transfer of Property Act, 1882-Sections 53A, 60-Jmpact of Section 
53-A on the right of redemption granted by Section 60-Held, Section 53-
A 
B 
A protects the possession of persons who have acted on a contract of sale C 
but in whose favour no legally valid sale deed is executed or registered. 
In 1951, one H created usufructury mortgage of his house for 7 years 
in favour of appellant for Rs. 700. In 1953, H entered into an agreement to 
sell the house to appellant's husband Y for Rs. 825 by an agreement dated 
8th July 1953. Rs. 15 was received as earnest money and the balance amount D 
was to be received at the time of registration on 15th July 1953. H died before 
the sale deed was registered. In 1954, another sale deed was executed by son 
and daughter of H in favour of the appellant for a consideration of Rs. 900 
and that after adjusting the mortgage amount of 
Rs. 700, the remaining 
amount of Rs. 200 was paid by the appellant to them. The sale deed was not 
registered. Y made various additions and alterations to the house. In 1965, E 
another sale deed was executed by some persons claiming to be children of H, 
in favour of respondent for a sum of Rs. 3000, out of which an amount of Rs. 
600 was retained by the respondent for the purpose of redeeming the 
mortgage in favour of the appellant The respondent filed a suit before the 
Trial Court against the appellant for redemption of the mortgage and for F 
possession of the house. The Trial Court dismissed the suit on the ground 
that Y was the true mortgagee and not the. appellant. On appeal by the 
respondent, the District Judge, while upholding the finding that Y was the 
actual mortgagee, reversed the decision of the Trial Court and passed a decree 
permitting the respondent to redeem the mortgage. On appeal, High Court 
set aside the decree of the District Judge. The suit was remanded back to G 
the Trial Court with a direction to make the husband of the appellant Y as a 
party to the suit and hear the suit on merits. In the mean time, Y died. His 
legal heirs, namely the petitioners 2 to 7 were made defendants in the suit. 
They claimed the right to retain possession of the house by virtue of Section 
53-A of the Transfer of Property Act, 1882. The Trial Court dismissed the H 
99 
100 
SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R. 
A suit of the respondent holding that the respondent had previous knowledge of 
the agreement for sale dated 8th July 1953 and establishment of part 
performance by the petitioners under Section 53-A of the Act. On appeal by 
the respondent, the Assistant Judge reversed the decree of the Trial Court 
and allowed the respondent to redeem the mortgage by payment of Rs. 600 to 
B the appellant holding that there was no evidence that Y was ready and willing 
to perform his part of the contract. The appellant died during the proceedings 
before the Trial Court. The remaining petitioners challenged the decision of 
the Assistant Judge before the High Court. The High Court dismissed the 
appeal and held that the respondent was entitled to redeem the mortgage. Hence 
the present appeal. After granting special leave, this Court directed the High 
C Court to record the factual finding as to whether the petitioners were ready 
and willing to perform their part of agreement dated 8th July 1953. The High 
Court concluded that neither the appellant nor Y were ready and willing to 
perform the agreement dated 8th July 1953 on the basis of the written 
statement filed by the petitioners and also on the finding that the balance 
consideration was not paid by the petitioners. 
D 
Allowing the appeal, the Court 
HELD: 1.1. The right of the mortgagor to redeem has its origin as an 
equitable principle for giving relief against forfeiture even after the mortgagor 
E defaulted in making payment under the mortgage-deed. It is a right, which 
has been jealously guarded over the years by Courts. The maxim 'once a 
mortgage always a mortgage' and the avoidance of provisions obstructing 
redemption as "clogs on redemption" are expressions of this judicial 
protection. This right is statutorily recognised in Section 60 of the Transfer 
of Property Act, 1882. The section gives the mortgagor right to redeem the 
F property at any time after the principle money has become due by tendering 
the mortgage-money and claiming possession of the mortgaged pro

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