SHRI SHIVDEV SINGH AND ANR. versus SH. SUCHA SINGH AND ANR.

Citation: [2000] 2 S.C.R. 878 · Decided: 31-03-2000 · Supreme Court of India · Bench: S. SAGHIR AHMAD · Disposal: Dismissed
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Judgment (excerpt)

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SHRI SHIVDEV SINGH AND ANR. 
v. 
SH. SUCHA SINGH AND ANR. 
MARCH 31, 2000 
[S. SAGHIR AHMAD AND R.P. SETHI, JI.] 
Transfer of Property Act 1882-Section 60-Right of Redemption-
Provision regarding-Held, at any time after the money has become due, the 
mortgagor has a right, on payment or tender of the mortgage-money, to 
require the mortgagee to deliver the mortgage deed and all documents relating 
to the mortgaged property and where the mortgagee is in possession of the · 
mortgaged property, to deliver possession thereof to the mortgagor-Right of 
redef11ption being a statutory and legal right, cannot be extinguished by any 
agreement made at the time of mortgage as part of the mortgage transaction-
Such right being an incident of a su~sisting mortgage, subsists so long as 
mortgage subsists-Clog on the equity of redemption-Constitution of-Held, 
whether in a particular case there is any clog on the equity of redemption, has 
to be decided in view of the background of a particular case-In the present 
case, the mortgage deed being for a period of 99 years constitutes a clog on 
the equity of redemption having regard to the financial position under which 
the mortgagor was placed at the time of execution of the mortgage-deed and 
the advantageous position of the mortgagee qua the mortgagor-Moreover, 
mortgagees having already enjoyed the usufructs of the mortgaged land for 
over 26 years at the time of filing of the suit. 
The disputed property was owned by P who had mortgaged the 
same in favour of B for a sum of Rs. 7000. B having died, the appellants 
stepped into her shoes qua the disputed and became mortgagees in posses-
sion of the said land •. P sold a . part of the mortgaged property to the 
respondent vide a registered sale deed for a valid consideration by which 
the mortgage money of Rs. 7000 was kept with the respondent as security 
to be paid to the appellants. Despite the respondent having purchased only 
a part of the mortgaged land, he offered the whole of the mortgage money 
to the appellants realising that partial redemption was not permissible. 
The appellants having refused to deliver possession, the respondent filed a 
suit for possession by way of redemption against the appellant in the 
Court of Addi.tional Senior Sub-Judge. The suit was decreed with a direc-
878 
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SHIVDEV SINGH v. SUCHA SINGH 
879 
ti on for delivery of possession by way of redemption on paying/depositing 
the mortgage money of Rs. 7000 minus the cost of the decree. Both the 
first and the second appeals preferred by the appellants were dismissed. 
Hence this appeal. 
On behalf of the appellants, it was contended that the clause pre-
scribing the period of mortgage for a period of 99 years did not constitute 
a clog on the equity of redemption and that the suit filed before the expiry 
of the stipulated time was premature in terms of Section 60 of the Trasfer 
of Property Act. 
Dismissing the appeal, this Court 
HELD : 1.1. The right of redemption is an incident of a subsisting 
mortgage and it subsists so long as the mortgage subsists. Whether in a 
particular case there is any clog on the equity of redemption, has to be 
decided in view of the background of a particular case. In the present 
case, the mortgage deed being for a period of 99 years is a clog on the 
equity of redemption having regard to the facts and circumstances of the 
case and the financial position under which the mortgagor was placed at 
the time of execution of the mortgage deed. The appellants were in an 
advantageous position qua the mortgagor. They have been deriving the 
usufructs of the mortgaged land for a period of over 26 years at the time 
of filing of the suit on payment of meagre sum of Rs. 7000 only to the 
mortgagor. [887-B; E-F] 
1.2. Section 60 of the Transfer of Property Act provides that at any 
time after the money has become due, mortgagor has a right, on payment 
or tender, at a proper time and place of the mortgagor-money to require 
the mortgagee to deliver the mortgage-deed and all documents relating to 
the mortgaged property and where the mortgagee is in possession of the 
mortgaged property, to deliver possession thereof to the mortgagor. Such 
a right of the mortgagor is called, in English law, th~ equity of redemp-
tion. The mortgagor being an owner who has parted with some rights of 
ownership has a right to get back the mortgage deed or mortgaged prop-
erty, in exercise of his right of ownership. The
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