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1942 Supreme(SC) 7
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD THANKERTON, SIR GEORGE RANKIN, AND SIR MADHAVAN NAIR.
SHAH RAM CHAND - Appellant
Versus
PANDIT PARBHU DAYAL - Respondents
On appeal from the High Court at Allahabad.
Decided On : Apr. 20. 1942.
Solicitors for appellant:Douglas Grant & Bold. Solicitors for respondents: T. L. Wilson & Co.
Under Section 60 of the Transfer of Property Act, a mortgagor cannot redeem a portion of the mortgaged property by paying a proportionate share of the debt unless the mortgagee has acquired a share of the mortgagor, regardless of whether other parts were previously released.
Headnote:(A) Transfer of Property Act, 1882 - Section 60 - Right to redeem - Partial redemption - A person interested in only a share of the mortgaged property is not entitled to redeem that share by paying a proportionate part of the mortgage money, except where the mortgagee, or all mortgagees, have acquired, in whole or in part, the share of a mortgagor - The integrity of a mortgage is not broken by the mortgagee releasing a portion of the property or permitting partial redemption of some parts by other owners, nor by the division of possession of the mortgaged properties. (Paras 10, 15, 20)
(B) Transfer of Property Act, 1882 - Section 82 - Right of contribution - The right of contribution between persons interested in the equity of redemption does not create an equity that allows a mortgagor to redeem a part of the property proportionately simply because the mortgagee has diminished his security by releasing another part. The statutory charge remains on every part of the mortgaged property. (Paras 16, 17)
Facts of the case:
The appellant acquired ownership of one village out of four villages that were subject to a prior mortgage. The appellant sought to redeem this specific village by paying a proportionate share of the outstanding mortgage debt, contending that the integrity of the mortgage had been broken because the mortgagees had previously allowed other villages in the same mortgage to be redeemed separately and had divided the possession of the properties.
Findings of Court:
The court found that the statutory right to redeem is governed strictly by the terms of the Act. The release of some parts of the mortgaged property or the permission granted for partial redemption of some parts does not entitle the owner of the remaining part to redeem his share proportionately in the absence of a specific agreement to that effect.
Issues: Whether the release of a portion of the mortgaged property by the mortgagee, or the permission granted for partial redemption of some parts, entitles the owner of another part to redeem his share on payment of a proportionate amount of the mortgage debt.
Ratio Decidendi: The court ruled that Section 60 of the Transfer of Property Act provides a definite rule: partial redemption is prohibited unless the mortgagee has acquired a share of the mortgagor. The right of redemption is a statutory right, and the court cannot introduce exceptions based on equity or the right of contribution under Section 82. The permission to redeem one part does not constitute a severance of the mortgagee's rights against other parts of the property, nor does it throw away the statutory shield against partial redemption.
Result: Appeal dismissed.
Legal Category Hierarchy
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property law
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mortgage
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right of redemption
- partial redemption
- integrity of mortgage
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right of redemption
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mortgage
JUDGEMENT
Appeal (No. 90 of 1939) from a decree of the High Court (April 15, 1936) affirming a decree of the Subordinate Judge of Agra (February 18, 1932).
The following facts are taken from the judgment of the Judicial Committee This appeal was by the plaintiff in a redemption suit which was brought in the Court of the Subordinate Judge of Agra in 1924. It had reference to a village called Muthamai, in the district of Agra, which at one time belonged to a zemindar called Nawal Singh. In that village the plaintiff inherited the interest of the mortgagee under a mortgage of 1893 granted by Nawal Singh to the plaintiffs grandfather. Having brought a suit (No. 50 of 1911) to enforce that mortgage, the plaintiff purchased Muthamai at the judicial sale in 1923, and thus became vested with the right and title which Nawal Singh had possessed in 1893. The question now raised was as to the amount which he had to pay to free Muthamai from the prior charge created by a mortgage granted by Nawal Singh in 1882 over three other villages as well as Muthamai. Was it the whole sum outstanding on the mortgage of 1882 ? Or was he, in the events which had happened, entitled to redeem Muthamai on payment of a part thereof, and if so, how much had he to pay ? Both Courts in India had held that he must pay the whole sum outstanding, which was Rs.30,000.
Sect. 60 of the Transfer of Property Act (IV. of 1882) was a statement of the right to redeem. It required payment or tender of "the mortgage-money” which had been defined by cl. (a) of s. 58 as "the principal money and interest of which "payment is secured for the time being." Sect. 60 as it stood until 1929 concluded as follows "Nothing in this "section shall entitle a person interested in a share only of "the mortgaged property to redeem his own share only, on "payment of a proportionate part of the amount remaining "due on the mortgage, except where a mortgagee, or, if there "are more mortgagees than one, all such mortgagees, has or "have acquired, in whole or in part, the share of a mortgagor."
Four mortgages were involved in the case—the first three being granted by Nawal Singh in his lifetime, and the fourth after his widows death by his reversionary heirs, (a) January 6, 1882 to Bast Ram and Ram Kishen for Rs.25,000 with interest at 6|- per cent, with yearly rests a simple mortgage of four villages—Muthamai, Phulaechi, Sherpur and Salempur. (b) January 13, 1893 to plaintiffs grandfather, Shah Bhagirath for Rs. 10,000 of two villages—Muthamai and Larhipur. (c) June 24, 1893 to Bast Ram and Ghasi Ram, son of Ram Kishen for Rs.40,000 with interest at 6 per cent, with half-yearly rests a simple mortgage of five villages— Muthamai, Phulaechi, Sherpur, Salempur and Undni. The first four of those villages had been comprised in mortgage (a) and Rs.27,000 out of that mortgage money went to pay off mortgage (a), (d) March 31, 1905 usufructuary mortgage to Ghasi Ram, successor of Bast Ram and Ram Kishen for Rs.i,03,200 of four villages—namely, Muthamai, Undni, Phulaechi and Matsena. Rs.68,097 of that mortgage money went to pay off mortgage (c). It was stipulated that Phulaechi and Matsena might be first redeemed for Rs.43,700 and Muthamai and Undni thereafter for Rs.59,500.
In his mortgage suit of 1911 it was determined against the plaintiff that the mortgage of 1882 was extant as a charge for the original advance having priority to the plaintiffs interest in Muthamai, and that was the basis of his present claim to redeem. The amount due thereon at March 31, 1905, when the usufructuary mortgage was executed, was Rs.45,967. No question of subsequent interest arose since that date the profits of the property had been enjoyed by way of interest as provided in the usufructuary mortgage. But the plaintiff relied on the following transactions which had since taken place with reference to that mortgage.
In 1909 the successors in interest of Ghasi Ram were sued to judgment by certain creditors, and their securi
