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KURIAN JOSEPH, V.K.AHUJA, V.K.SHARMA
Bhandaru Ram (deceased) through his L. R. Rattan Lal – Appellant
Versus
Sukh Ram – Respondent
Kurian Joseph, C.J.—“Once a mortgage always a mortgage” is a principle based on equity, justice and good conscience evolved for the first time in 1681 by Lord Nottingham. The reference to that effect is available in “Law of Mortgage” by Dr. Rashbehary Ghose, 8th Edition at page 281, which reads as follows:
“In 1681 Lord Nottingham in the leading case of Harris v. Harris1 firmly laid down the principle: ‘Once a mortgage, always a mortgage.’ This is a doctrine to protect the mortgagor’s right of redemption: It renders all agreements in a mortgage for forfeiture of the right to redeem and also encumbrances of or dealings with the property by the mortgagee as against a mortgagor coming to redeem. In 1902, the well known maxim, ‘once a mortgage, always a mortgage’ was supplemented by the words ‘and nothing but a mortgage’ added by Lord Davey in the leading case of Noakes v. Rice2, in which the maxim was explained to mean ‘that a mortgage cannot be made irredeemable and a provision to that effect is void’. The maxim has been supplemented in the Indian context by the words and therefore always redeemable,’ added by Justice Sarkar of the Supreme Court in the case of Seth Ganga
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