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Several references in the sources reaffirm that the Supreme Court's decision in this case is a binding precedent clarifying procedural rights and limitations in mortgage redemption and final decree applications ["CHAND SINGH ETC vs DARBARA SINGH ETC - Punjab and Haryana"], ["MERCY vs DESAN - Madras"].
Analysis and Conclusion:
In the complex world of property law, few principles are as enduring as once a mortgage, always a mortgage. This maxim, rooted in equity and statute, protects mortgagors from losing their redemption rights arbitrarily. A pivotal Supreme Court judgment that solidified this doctrine is Achaldas Durgaji Oswal v. Ramvilas Gangabisan Heda (2003) 3 SCC 614. If you've ever wondered about the case of Achaldas Durgaji Oswal v. Ramvilas Gangabisan Heda and its implications for mortgage redemption, this post breaks it down.
Whether you're a property owner, investor, or legal professional, understanding this ruling can prevent costly disputes. Note: This is general information based on judicial precedents and not specific legal advice. Consult a qualified lawyer for your situation.
Under Section 60 of the Transfer of Property Act, 1882 (TPA), the mortgagor has a statutory right to redeem the mortgaged property by paying the mortgage money at a specific time or any time afterwards, as per the mortgage terms. This right is fundamental and cannot be extinguished unilaterally.
The Supreme Court in the aforementioned case emphasized that this right persists unless explicitly terminated by law. As held: The right of redemption of a mortgagor being a statutory right, the same can be taken away only in terms of the proviso appended to Section 60 of the Act which is extinguished either by a decree or by act of parties. K. VILASINI VS EDWIN PERIERA - 2008 0 Supreme(SC) 1306
This 2003 Supreme Court decision arose from a usufructuary mortgage dispute where the mortgagee claimed ownership due to efflux of time. The Court rejected this, reaffirming:
The judgment quotes: The maxim 'once a mortgage, always a mortgage' was supplemented by the words 'and nothing but a mortgage' added by Lord Davey in Noakes v. Rice, and in Indian law by Justice Sarkar in Seth Ganga Dhar v. Shankar Lal. K. VILASINI VS EDWIN PERIERA - 2008 0 Supreme(SC) 1306
Further: Such extinguishment of right can take place by contract between the parties or by a decree of the court or by a statutory provision which debars the mortgagors from redeeming the mortgage. K. VILASINI VS EDWIN PERIERA - 2008 0 Supreme(SC) 1306
The ruling underscores that mere default or delay does not defeat redemption. A competent court must pass a final decree for foreclosure or sale. Mortgagees cannot self-declare the mortgage extinguished. K. VILASINI VS EDWIN PERIERA - 2008 0 Supreme(SC) 1306
In usufructuary mortgages (where possession is with the mortgagee), redemption rights are particularly robust. Subsequent cases citing this judgment clarify no limitation applies to final decree applications post-preliminary decree. For instance: there is no limitation in the matter of applying for final decree being passed when preliminary decree for redemption has been passed for redemption of a usufructuary mortgage. NANDAN KUTTAN Vs KARTHIYAYANI AMMA PANKAJAKSHI AMMA AND - 2008 Supreme(Online)(KER) 7651
This principle echoes across Indian courts. In Shivdev Singh v. Sucha Singh (2000) 1 SCC 326, the right persists until legally extinguished Rajavanai VS P. Nithiyanandam - 2011 0 Supreme(Mad) 3137. Similarly, Singh Ram (Dead) v. Sheo Ram (2014) 2 SCC 185 holds a usufructuary mortgagee cannot claim ownership by limitation expiry without a decree Gurtej Singh VS Paramjit Singh - 2022 0 Supreme(P&H) 2226.
Other high court rulings reinforce:- Usufructuary mortgagees lack rights under Order 34 Rules 7 & 8 CPC to apply for final decrees, unlike other mortgages. R. Sowbagyarajan VS Marimuthu Gounder - 2011 Supreme(Mad) 3135- No time limit for redemption suits; right arises upon tendering mortgage money. Mercy VS Desan - 2021 Supreme(Mad) 3173- In redemption suits, auction purchases or delays do not bar redemption if no final extinguishment. S. Kumaravel VS H. N. Joons Begum - 2018 Supreme(Mad) 1827
One case notes: In case of usufructuary mortgage, it is always a mortgage. Raj Karan Singh VS Jagmohan Singh - 2012 Supreme(P&H) 168
Courts have dismissed challenges to final decrees based on jurisdiction or delay if not raised timely. R. Sowbagyarajan VS Marimuthu Gounder - 2011 Supreme(Mad) 3135
While robust, the right is not absolute:- Court Decree: Final foreclosure or redemption decree extinguishes it after due process.- Act of Parties: A registered sale deed properly executed. K. VILASINI VS EDWIN PERIERA - 2008 0 Supreme(SC) 1306- Statutory Bars: Specific provisions debarring redemption.
Delay alone does not suffice; courts scrutinize for valid extinguishment. In one instance, redemption was upheld despite preliminary decree timelines, as usufructuary mortgages allow deposit post-stay or delay. RAJ KARAN SINGH AND ANR vs JAGMOHAN SINGH AND ORS
The Achaldas Durgaji Oswal v. Ramvilas Gangabisan Heda ruling remains a cornerstone, ensuring fairness in mortgage transactions. Once a mortgage, always a mortgage guards against exploitation, promoting equitable property dealings. K. VILASINI VS EDWIN PERIERA - 2008 0 Supreme(SC) 1306
Key Takeaways:- Redemption is statutory under TPA Section 60.- Extinguishment requires decree or valid party act.- No unilateral ownership by mortgagees.- Applies strongly to usufructuary mortgages with flexible timelines.
Stay informed on evolving case law, as seen in citing judgments. For personalized guidance, seek professional legal counsel.
References:1. Achaldas Durgaji Oswal v. Ramvilas Gangabisan Heda (2003) 3 SCC 614 K. VILASINI VS EDWIN PERIERA - 2008 0 Supreme(SC) 1306.2. Shivdev Singh v. Sucha Singh (2000) 1 SCC 326 Rajavanai VS P. Nithiyanandam - 2011 0 Supreme(Mad) 3137.3. Singh Ram v. Sheo Ram (2014) 2 SCC 185 Gurtej Singh VS Paramjit Singh - 2022 0 Supreme(P&H) 2226.
(Word count: approx. 1050)
#MortgageRedemption #SupremeCourtIndia #PropertyLaw
Ramvilas Gangabisan Heda (Dead) through L.Rs, the petitioner ... Durgaji Oswal (Dead) through L.Rs vs. ... that in view of the judgment reported as AIR 2003 (SC) 1017 Achaldas
The arguments advanced by the learned counsel for the appellant are not at all tenable or sound in view of the decision of the Apex Court in Achaldas Durgaji Oswal v. ... Ramvilas Gangabisan Heda (AIR 2003 SC 1017) wherein it was held that there is no limitation in the matter of applying for final decree being passed when preliminary decree for redemption has been passed for redemption of a usufructuary mortgage.
Per contra, the learned counsel representing the respondents, while relying upon Achaldas Durgaji Oswal (Dead) Through LRS v. ... Ramvilas Gangabisan Heda (Dead) Through LRS. and Others AIR 2003 SC 1017, contends that the mortgagee in a usufructuary mortgage has no right to file an application either for foreclosure or for sale. Therefore, the application is not barred by the period of limitation. ... Paras 36 to 44 of the judgment in Achaldas Durgaji#HL_END....
It has also been categorically laid down by the Honourable Apex Court reported in Achaldas Durgaji Oswal v. ... He would also bring to the notice, another judgment of the Honourable Apex Court reported in Achaldas Durgaji Oswal v. ... Ramvilas Gangabisan Heda, AIR 2003 SC 1017, that Order 34, Rules 7 & 8, do not confer any right upon the usufructory mortgagee to apply for final decree which is conferred on mortgagee on other types o....
Durgaji Oswal (dead) through L.Rs. .vrs. ... Ramvilas Gangabisan Procedure and judgment of Hon'ble Apex Court reported at 2003[2] Civil LJ 267 (Achaldas
Per contra, the learned counsel representing the respondents, while relying upon Achaldas Durgaji Oswal (Dead) Through LRS v. ... Ramvilas Gangabisan Heda (Dead) Through LRS. and Others AIR 2003 SC 1017, contends that the mortgagee in a usufructuary mortgage has no right to file an application either for foreclosure or ... Paras 36 to 44 of the judgment in Achaldas Durgaji Oswal’s case (supra) is extracted as under:- “36. ... He s....
It has also been categorically laid down by the Honourable Apex Court reported in Achaldas Durgaji Oswal v. ... He would also bring to the notice, another judgment of the Honourable, Apex Court reported in Achaldas Durgaji Oswal v. ... The lower Court had confused with a Suit for redemption of mortgage in which a preliminary decree was passed and a final decree had been applied for by the mortgagor, for which the judgment of the Honourable Apex Court reported in Achaldas#HL_E....
Durgaji Oswal (dead) through LRs versus Ramvilas Gangabisan Heda (dead) through LRs and others, (2003) 3 Supreme Court Cases 614 and M/s. ... cases 129; judgment of this court in case of Gurdev Kaur and others versus Niranjan Singh and another, 2008(2) PLR, 360; unreported judgment of this Court dated 08.11.2011 in RSA No.2628 of 1992 (O&M) titled Ram Kumar and others versus Mohinder and others; judgments of Hon’ble Supreme Court in cases of Achaldas
Durgaji Oswal (dead) through LRs versus Ramvilas Gangabisan Heda (dead) through LRs and others, (2003) 3 Supreme Courtjudgments of Hon'ble Supreme Court in cases of Achaldas
14662/2017 SHRI RIKABCHAND ACHALDAS OSWAL Petitioner(s) VERSUS RAMVILAS GANGABISHAN HEDA SINCE DECEASED VERSUS RAMVILAS GANGABISHAN HEDA SINCE DECEASED THRU LRS. ... S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS REVIEW PETITION (CIVIL) Diary No(s). 248/2020 in SLP(C) No.14662/2017 SHRI RIKABCHAND ACHALDAS
i) Achaldas Durgaji Oswal (dead) through Legal Representatives Vs. Ramvilas Gangabisan heda (dead) through Legal Representatives and others reported in (2003) 3 Supreme Court Cases 614. 2. Sarojibi Prabhu and Others Vs. Pappikutty Adiesiar and Others reported in AIR 2007 (Kerala) 44. In support of his contention,the learned counsel for the petitioner relied on the following judgments of the Hon'ble Apex Court
The principles of law outlined in the above said decision are taken into consideration and followed as applicable to the case at the hand. 9. The counsel for the plaintiff, in support of his contentions, placed reliance upon the decision reported in (2003) 3 Supreme Court Cases 614 (Achaldas Durgaji Oswal (dead) through lrs Vs. Ramvilas Gangabisan Heda (dead) through Lrs. and others).
In the case of Achaldas Durgaji Oswal (dead) through LRs v. Ramvilas Gangabisan Heda (dead) through LRs and others reported in (2003) 3 SCC 614, the Hon’ble Apex Court accepted the explanation of Law of Mortgage by Dr. Rashbehary Ghose at pp. 231-32 which is reproduced below:- In the Law of Mortgage by Dr Rashbehary Ghose at pp. 231-32 under the heading “Once a mortgage, always a mortgage”, it is noticed –
6. In this connection, the learned Counsel for the Plaintiffs/Appellants would rely upon the decision of the Hon'ble Supreme Court reported in AIR 2003 SC 1017 (Achaldas Durgaji Oswal v. Ramvilas Gangabisan Heda) and also an unreported judgment of this Court made in S.A.No.371 of 2011 dated 16.07.2012. He would also rely upon a decision of the Supreme Court reported in 2006 (1) CTC 678 (Harbans v. Om Prakash and others) for the proposition that no period is stipulated for redeeming the mortgage and no period could be stipulated for redeeming a usufructuary mortgage. He woul....
The case canvassed on behalf of the plaintiffs/appellants was that a suit for redemption of mortgage stands on a different footing. The right of a mortgagor and mortgagee has been discussed in Achaldas Durgaji Oswal (Dead) Through Lrs. Vs. Ramvilas Gangabisan Heda (Dead) Through Lrs. & Ors. (2003) 3 SCC 614. Mortgagor, despite having mortgaged the property might still deal with it in any way consistent with the rights of the mortgagee. The aspects discussed in the relevant paragraphs are reproduced hereinunder: “9.
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