HARBANS versus OM PRAKASH AND ORS.

Citation: [2005] SUPP. 5 S.C.R. 141 · Decided: 10-11-2005 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

Judgment (excerpt)

HARBANS 
A 
v. 
OM PRAKASH AND ORS. 
NOVEMBER I 0, 2005 
[ARIJIT PASAYAT AND C.K. THAKKER, JJ.] 
B 
Transfer of Property Act, I 882-Section 60-Right of mortgagor to 
redeem,-land mortgaged JOO years ago without stipulating any redemption 
period and in possession of mortgagees since then-Mortgagee's case that C 
land not redeemed within limitation period as such became owner of land due 
to foreclosure-Held: When there is no /imitation for redeeming the mortgage, 
right of redemption cannot be extinguished, it can be redeemed at any point 
of time-Rule against clogs on the equity of redemption is that right to redeem 
cannot be taken away-Once a mortgage always a mortgage, as such always 
redeemable-Limitation Act, 1963. 
D 
It was appellant-plaintiff's case that more than 100 years ago, 
ancestors of BH mortgaged the suit land to the forefathers of plaintiff and 
defendant Nos.2 and 3 and since then they continued to be in possession 
of the suit land as mortgagees. The suit land had not been redeemed and 
the period of limitation of 60 years had expired and as such the appellant- E 
plaintiff filed a suit for declaration against defendant no.1 that the plaintiff 
and defendant Nos. 2 and 3 became owners in possession of the suit land 
on ground of forclosure since limitation for redemption of land had expired 
and also sought relief of permanent injunction. Defendant no.1 alleged that 
he procured decree in his favour against BH and became the owners of F 
the suit land; that the description of the mortgage was not given in the 
plaint; and that he had got the suit land redeemed after paying redemption 
money to the plaintiff. Trial Court decreed the suit in favour of the plaintiff 
and defendant nos. 2 and 3 and held them to be owners in possession of 
the suit land with consequential relief of permanent injunction and 
restraint for alienation of the suit land in any manner. Defendant No.1 G 
filed appeal which was allowed holding that the plaintiff and defendant 
nos. 2 _and 3 had not become owners as there was no period of limitation 
to redeem the usufructuary mortgage. However, since defendant no.1 
failed to prove that the mortgage had been redeemed, but plaintiff and 
141 
H 
142 
SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R. 
A defendant Nos. 2 and 3 were in possession of the suit land as mortgagees 
only, they could only be dispossessed by due course of law. Plaintiff then 
filed second appeal which was dismissed by the Single Judge of High Court 
holding that since no time was fixed for redeeming the land, the mortgagor 
had right to get the property redeemed, there being no limitation. Hence 
B the present appeal. 
Appellant contended that the right to redeem or recover possession 
starts from the first date of mortgage and has to be exercised within 30 
years. 
Respondents contended that when there is no stipulation regarding 
C period of limitation it can be redeemed any time. 
Dismissing the appeal, the Court 
HELD: 1.1. Under section 60 of the Transfer of the Property Act, 
at any time after the principal money becomes due, the mortgagor has a 
D right on payment or tender of the mortgage money to require the 
mortgagee to reconvey the mortgage property to him. The right conferred 
by this section has been called the right to redeem .. Under this section, 
however, that right can be exercised only after the mortgage money has 
become due. The mortgagee's right to e~force the mortgage and the 
mortgagor's right to redeem are co-extensive. [151-B-C; 152-El 
E 
1.2. Any provision inserted to prevent redemption on payment or 
performance of the debt or obligation for which the security was given is 
clog or fetter on the equity of redemption and is void. The rule against 
clogs on the equity of redemption is that, a mortgagor's right to redeem 
shall neither be taken away nor be limited by any contract between the 
F 
parties. The Courts will ignore any contract the effect of which is to 
deprive the mortgagor of his right to redeem the mortgage. Once a 
mortgage always a mortgage and therefore, shall always be redeemable. 
[146-G; 147-A, BJ 
G 
1.3. The reason justifying the Court's power to relieve a mortgagor 
from the effects of his bargain is its want of conscience. It depends on 
whether it was obtained by taking advantage of any difficulty or 
embarrassment that he might have been in when he borrowed the moneys 
on the mortga~e. Whether the mortgagor was oppressed or was he 
imposed upon are questi

Excerpt shown. Read the full judgment & AI analysis in Lexace.