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State Of Punjab VS Mahain Singh - 2018 0 Supreme(P&H) 4241 : The legal documents establish that a mortgage, even if not redeemed within a statutory period, does not automatically vest the property in the mortgagee (including Muslim evacuees) unless possession is actually taken and the property is formally vested under law. The court held that the right to redeem a usufructuary mortgage is not time-barred and continues until the mortgage money is paid, meaning limitation does not run under Article 61 of the Limitation Act, 1963. Consequently, even if a mortgage was allegedly made to a Muslim evacuee who migrated to Pakistan, the property does not vest in the State or Central Government merely due to non-redemption, especially where there is no proof of the mortgage, no registration, no possession by the mortgagee, and no formal notification of vesting. The court emphasized that ''''once a mortgage always a mortgage'''' and that the equity of redemption cannot be extinguished by time or contract. Therefore, a ''''Hiba'''' (gift) of mortgaged immovable property without redemption and without proper narration or registration is not valid, as the property never legally vested in the transferee, and the original mortgagor retains the right to redeem at any time until the mortgage money is paid.Checking relevance for Fathima Bivi and others VS Bhavasa Maracair and others...
Fathima Bivi and others VS Bhavasa Maracair and others - 1978 0 Supreme(Mad) 301 : Under Muslim law (Mohammadan Law), a gift (hiba) of the equity of redemption in mortgaged immovable property is valid even if the mortgagee is in possession and the property has not been redeemed. The validity of such a gift does not require physical delivery of possession; constructive possession is sufficient. The donor may transfer the equity of redemption by giving notice to the mortgagee and permitting the donee to exercise acts of ownership over the property. This principle is supported by judicial decisions from the Calcutta High Court, the Bombay High Court (in later rulings), and the Supreme Court, which recognize that incorporeal rights like equity of redemption can be validly gifted under modern legal conceptions. Oral gifts are also valid under Muslim personal law, and the absence of a registered instrument does not invalidate the gift if there is evidence of intention, acceptance, and constructive possession.Checking relevance for Bethi Ramswamy VS Madala Seetharamaiah...
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Mortgage Rights and Redemption Period - Once a mortgage is created, the right of redemption persists unless law explicitly extinguishes it. The 1938 Act, applicable only to mortgages before 08.06.1901, does not apply to mortgages created after that date, such as those purchased by Kripa Ram in 1916 and 1921. The law recognizes that usufructuary mortgages cannot be redeemed within a fixed period, indicating the ongoing nature of mortgage rights unless law provides otherwise. ["Darshna Kumari @ Darshan Kaur VS Sohan Singh - Supreme Court"], ["DARSHANA KUMARI @ DARSHAN KAUR vs SOHAN SINGH . - Supreme Court"], ["Dulabhai Bijalbhai Talpada vs Ravjibhai Ghelabhai Talpada Vaghri - Gujarat"], ["Sampati Devi W/o Narsingh Lal VS Jagannath S/o Shri Gordhan - Rajasthan"]
Validity of Mortgaged Immovable Property Without Redemption - Courts have held that a mortgagee in possession must surrender possession upon filing for redemption unless the right has been lawfully extinguished. The process of extinguishing mortgage rights must follow legal procedures; otherwise, the mortgage remains valid. Courts have also emphasized that a mortgagee's possession does not imply a transfer of ownership, and the mortgagee must comply with redemption procedures. ["Darshna Kumari @ Darshan Kaur VS Sohan Singh - Supreme Court"], ["Dulabhai Bijalbhai Talpada vs Ravjibhai Ghelabhai Talpada Vaghri - Gujarat"], ["Sampati Devi W/o Narsingh Lal VS Jagannath S/o Shri Gordhan - Rajasthan"]
Mortgage of Immovable Property Without Registration - Under Muslim law, a gift (hiba) of property does not require registration, provided the essential conditions of declaration, acceptance, and delivery are met. However, under Section 17 of the Registration Act, gifts of immovable property must be registered to be valid. Muslim law preserves the validity of oral gifts of immovable property without registration, contrasting with general statutory requirements. ["RAZAK H vs THE ADDITIONAL TAHSILDAR (LAND RECORDS) - Kerala"], ["Razak H VS Additional Tahsildar, (Land Records) - Kerala"]
Legal Status of Mortgage Without Redemption and No Narration of Mortgage Without Registration - The absence of registration does not necessarily invalidate a Muslim gift or mortgage, but statutory laws like the Registration Act impose registration requirements for immovable property. The law recognizes that certain transactions, especially under Muslim law, may be valid without registration if conditions are met, but non-registration can complicate enforcement. In cases involving mortgage rights, the possession and lawful procedures for redemption are critical. ["RAZAK H vs THE ADDITIONAL TAHSILDAR (LAND RECORDS) - Kerala"], ["Razak H VS Additional Tahsildar, (Land Records) - Kerala"], ["On the Death of Bhuban Mohan Das His Legal Heirs Smt. Lakshmi Prabha Das W/o Bhuban Mohan Das vs On the Death of Late Samaresh Banerjee His Legal Heirs Namely: Smti. Bulu Banerjee W/o Late Samaresh Banerjee - Gauhati"], ["Sadhu Ram (since deceased) through his LRs vs State of Haryana through Collector, Kurukshetra - Punjab and Haryana"]
Hiba (Gift) in Muslim Law and Its Effect on Mortgage - A valid gift (hiba) under Muslim law requires declaration, acceptance, and delivery of possession. Such gifts do not need to be registered unless specified by law. The mortgage of property following a gift must be scrutinized to determine if the gift was acted upon or is valid, as mortgage rights may be challenged if the gift was not properly executed or acted upon. Evidence is crucial to establish the validity of Hiba and its impact on mortgage rights. ["RAZAK H vs THE ADDITIONAL TAHSILDAR (LAND RECORDS) - Kerala"], ["Razak H VS Additional Tahsildar, (Land Records) - Kerala"], ["Sadhu Ram (since deceased) through his LRs vs State of Haryana through Collector, Kurukshetra - Punjab and Haryana"]
Analysis and Conclusion
The law recognizes the validity of Muslim gifts (hiba) of immovable property without registration if conditions are met, but statutory registration is required for enforceability. Mortgages created after 1901 are generally valid unless law explicitly extinguishes redemption rights, which are ongoing unless law states otherwise. The absence of registration or narration of mortgage does not automatically invalidate a mortgage, but proper legal procedures, including registration and possession, are essential for validity and enforcement. In cases involving mortgaged immovable property without redemption, courts emphasize lawful procedures for redemption and the importance of evidence to establish the validity of gifts and mortgage rights.
