NARAYAN DEORAO JAVLE (DECEASED) THROUGH LRS. versus KRISHNA & ORS.

Citation: [2021] 8 S.C.R. 481 · Decided: 17-08-2021 · Supreme Court of India · Bench: HEMANT GUPTA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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NARAYAN DEORAO JAVLE (DECEASED) THROUGH LRS.
v.
KRISHNA & ORS.
(Civil Appeal No. 4726 of 2021)
AUGUST 17, 2021
[HEMANT GUPTA AND A. S. BOPANNA, JJ.]
Transfer of Property Act, 1882: ss. 60, 59A – Redemption of
the mortgaged property – Right of – On facts, non-payment of the
mortgage amount by the original mortgagors to the mortgagee –
Suit for recovery of the mortgage amount by mortgagee against
original mortgagors – Appellant had purchased a mortgaged
property from original mortgagor, however, not impleaded as party
in the suit – Due to the non-payment of the mortgage amount,
appellant’s right of redemption was foreclosed and after the
execution of the decree, mortgagee took possession of the property
from the appellant – Appellant then filed suit against original
mortgagors and mortgagee seeking right of redemption of the
mortgaged property – Trial court dismissed the suit, however the
first appellate court allowed the same – In appeal, the High Court
dismissed the suit for redemption of the mortgage land – On appeal,
held: Equity of redemption is a right subsidiary to the right of
ownership – Appellant was a necessary party in a suit for foreclosure
filed by the mortgagee after the purchase and was required to be
impleaded – Since the appellant was not impleaded as a party,
appellant is not bound by the decree passed in the suit for foreclosure
– More so, decree in a suit for foreclosure was a result of collusion
between the original mortgagors and the mortgagee so as to
frustrate rights  of  a purchaser  from the mortgagor  – Thus, the
decree passed in the suit for foreclosure was  void and  non-est –
Such decree of foreclosure would not extinguish the right of the
mortgagor to redeem land in view of the fact that he was not
impleaded as a party in the suit though he has purchased part of
the mortgaged property by virtue of registered sale deed – Thus,
the judgment of the High Court is set aside and that of the first
appellate court is restored.
[2021] 8 S.C.R. 481
481
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482
SUPREME COURT REPORTS
[2021] 8 S.C.R.
Redemption – Equity of Redemption – Meaning of – Held:
Equity of redemption means a right to redeem the property based
upon equitable principles – Right of redemption recognised under
the Act is a statutory and legal right which cannot be extinguished
– Equity of redemption is a right which is subsidiary to the right of
ownership.
Allowing the appeal, the Court
HELD: 1.1 The plaintiff has purchased property vide
registered sale deed on 18.05.1964, much before the filing of the
suit for foreclosure in the year 1965. The possession of the plaintiff
was recorded in the revenue record after the purchase of the
property, but still, the mortgagee chose not to implead the
subsequent purchaser. The original mortgagor who has mortgaged
the property had no subsisting title, interest or right in the property
conveyed, therefore, the factum of compromise between the
mortgagor and the mortgagee is ineffective and not enforceable
against the purchaser i.e., the plaintiff. Once the plaintiff has
purchased property, the equity of redemption is part of the title
and as an owner, he could seek redemption of the suit land. [Para
11][491-F-H; 492-A]
1.2 No provision of law shows that the subsequent purchaser
has to give notice to the mortgagee signifying purchase of the
property, by a mortgagor. The factum of purchase coupled with
the delivery of possession completes the title of the plaintiff over
the land in question. Therefore, the decree obtained in such a
suit at the back of the purchaser is void. The plaintiff rightly
claimed that he was required to be impleaded, as he was a
necessary party in a suit for foreclosure filed by the mortgagee
after the purchase of part of the mortgaged land. The possession
was taken from the appellant consequent to the decree of
foreclosure granted in favour of the mortgagee. The findings
recorded by the trial court that the plaintiff has purchased the
property and not equity of redemption is clearly without any basis.
In view of the fact that the possession was delivered and the fact
that the parties are residents of the same village, there is
‘constructive notice’ of purchase of land by the appellant. [Paras
12, 13][492-A-B-C, D, E-F]
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1.3 In terms of Section 91 of the Act, the plaintiff having
stepped into the shoes of the mortgagor in respect of land
purchased by him, has a right to redeem the land mortgaged. In
addition, the Order XX

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