URKUND

Urkund Analysis Result

Analysed Document: ProjectE.docx (D54896739)
Submitted: 8/19/2019 5:41:00 PM
Submitted By: shivampatel.ug@nliu.ac.in
Significance: 22 %

Sources included in the report:

Tanay Jha & Vinay Sharma.docx (D37515439)

https://www.legallyindia.com/views/entry/mortgaged-property-inalienable-right-of-
redemption-of-a-mortgagor
http://www.lawyersclubindia.com/experts/Mortgaged-property-434536.asp
https://www.lawctopus.com/academike/inalienable-right-redemption-mortgagor/
http://lupuzexej.htw.pl/mortgage-under-transfer-property-act.html
https://studopedia.su/13_167800_ROMAN-LAW.html
https://studfiles.net/preview/5130119/page:9/
http://thelawdictionary.org/equity/

Instances where selected sources appear:

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INTRODUCTION

In last few years Equity has played a major role in commercial conduct and transaction. There
are many judicial decision are taken in relating to commercial dealing and law of equity has
developed that now this build the equitable foundation. The commercial world reflects other
manifestation of the combination between common law and equity for, sir Anthony Mason
notes, “the fiduciary relationship has been spearhead of equity’s incursions into the area of
commerce” Equity, unlike the common law, was never intended to be an independent system
of law. It presupposed the existence of the common law, which it supplemented and modified.
The system of equity followed the

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portion of natural justice which is judicially enforceable but common law courts various
reasons was not enforced that portion. Equity is that system of justice which was developed
in and administered by the high court of chancery in England in the exercise of its
extraordinary jurisdiction. This definition

of equity

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is rather suggestive than precise and invites inquiry rather than answers it.

Meaning of Equity- According to Black law Dictionary Equity means

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In its broadest and most general signification, this term

denotes the spirit and the habit of fairness, justness, and right dealing which would regulate
the intercourse of men with

men. 1 As a legal system, it is a body of law that addresses concerns that fall outside the
jurisdiction of common law.

Equity is also used to describe the money value of property in excess of claims, liens,
ormortgages on the property. Equity is never intended to separate from the common law.
Equity for assist, supplement and modify the common law system.

The Development of Equity-

In England before 1066, all law were local and no centralise courts. Over a period law was
developed and universally applicable. Thus creating law which was ‘common to the whole
country’ known as “common law”. Common law was nothing, it is a municipal law. But in

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common law system there were big deficiency that- there was limited remedy and the system
entirely based upon ‘writ’, king was considered as a formation of justice.

There were three types of courts that time-

1. Kings court 2. Court of common plea 3. Ex-chequer court headed by chancellor

Many of people did not get proper remedy from the common law court then chancellor
developed new remedy which was not in the common law.

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In 1474 the Chancellor issued the first decree in his own name, which began the
independence of the Court of Chancery from the King's Council.

There was new procedure laid down and equity was not bound by the writ system.

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Equity created new rights by recognising trusts and giving beneficiaries rights against
trustees.

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Equity also developed the equity

of redemption. At common law, under a mortgage, if the mortgagor had not repaid the loan
once the legal redemption date had passed, he would lose the property but remain liable to
repay the loan. Equity allowed him to keep the property if he repaid the loan with interest.

This right to redeem the property is known as the equity of redemption.

Equity created new remedies:

(a) Specific performance (

b) Rectification (c) Rescission (d) Injunctions.

ROLE OF EQUITY IN COMMERCE The role of equitable principle has taken a part in the
resolution of commercial dispute and explore the implications function of the law of contract.
The principles of equity deals with marginal or peripheral contract- like transactions where the
parties nonetheless intend to effectuate a commercial transaction. A puzzle with which
theorists of the law of commercial contracts need to grapple is the increased role of equity in
commerce.

Usually, it's been thought, equity has small place in commercial dealings. When business men
are operating at arm's length, each for his own financial benefit, any suggestion that they

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stand in a fiduciary relationship towards one another, with all that that idea implies, would
superficially seem to be irrelevant. In commerce, where title to goods, money & securities is
often the subject of speedy (sometimes speedy) turnover, certainty as to title is clearly
supremely important to all the parties concerned. That certainty was said to be embodied in
the common & statute law:

equity was seen by lots of commercial lawyers as a thicket of recondite doctrines and of
extraordinary remedies and, as such, inappropriate to the realities of the marketplace.

There were three reason by which equity come into picture in commerce 2 -

1. The dramatic increase within the sheer volume and range of corporate activity since the
Second World War has inevitably been accompanied by litigation brought to explain the
modern scope and content of that most classical of fiduciary relationships, namely, that of a
director of a company towards his company.

2. A second reason for these developments has clearly been the enormous impact of
legislation, especially in relation to corporate activity and taxation, which has resulted in the
use of trusts employed in order to circumvent legislative prescriptions and their
consequences.

3. Thirdly, Modern corporate financing devices such as the addition of retention of title
("Romalpa") clauses in financing agreements, and purpose trust ("Quistclose") clauses
requiring that funds lent will only be used, say, to pay off a particular debt or class of
creditors, have in their turn given rise to equitable considerations, and again particularly so in
corporate insolvency situations.

In many cases the courts have invoked, and continue systematically to invoke, by applying
equitable principles and not principles of the law of contract to resolve commercial disputes in
transactions governed by a contractual framework.

The principle of equity is playing major role in commerce, by following aspects-

PRINCIPLE OF EQUITABLE ESTOPPEL AND CONTRACT-

This concept at common law, which was confined in the beginning to various formal matter,
was later on expanded by equity courts that any representation of existing facts, whether by
words or by conduct which was acted upon by a person before whom it was made and the
maker of representation was not allowed to go back upon it. Later on this doctrine of
“equitable estoppel” was expressed in two forms called “promissory estoppel” and
“proprietary estoppel”

It is a principle evolved by equity to avoid injustice and though commonly named as

promissory estoppel, it is neither in the realm of contract nor in the realm of estoppel. This
Equitable estoppel based on equity maxim ‘He Who Seeks Equity Must to Equity’. Application
in India

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Originated in equity, first pressed into service by Calcutta High court in 1880 and therefore by
the Supreme Court. In a case of Gujarat State Financial Corps. V. LOTUS Hotels (p) Ltd. 3 - the
corporation first sanctioned a loan of Rs. 29.93 lacs to Lotus Hotels for constructing of q hotel
by creating an equitable mortgage. The plaintiff relying thereon proceeded to act and execute
the project, but subsequently the corporation changed its mind and refused to disburse it.
Supreme court ruled that the corporation was bound by its promise and must discharge its
statutory duty. This is because “when the officer acts within the scope if his authority under a
scheme and enters into an agreement and makes a representation and a person acting on
that representation puts himself in a disadvantageous position, the Court is entitled to require
the officer to act according to the scheme and the agreement or representation. The officer
cannot arbitrarily act on his mere whim and ignore is promise on some undefined and
undisclosed grounds of necessity or change the conditions to the prejudice of the person who
had acted upon such representation and put himself in a disadvantageous.

Equitable intervention in commercial transactions has continued through a number of

devices. The studied of these is equitable estoppels, both in the form of proprietary estoppels-
which only applies to promises concerning interests in land but can serve as a cause of action-
and promissory estoppels, which applies to a broader range of promises but can only be a
defence.

EQUITY IN ORAL CONTRACT TO CONVEY LAND-SPECIFIC PERFORMANCE-PERSONAL SERVICES -

In oral contract, many of time defendant give oral promises later on he denies for that and
common law did not recognise the oral contract, therefore law of equity gave legal to oral
promise. By this plaintiff would get relief of specific performance to defendant to complete the
contract which he oral promised. There are some main cases on oral contract where court of
equity granting relief of specific performance and also recognised the oral promises.

In first case, Burns v. McCormick (1922) 233 N. Y. 230, I35 N. E. 273- Under an oral contract the
plaintiffs lived with, boarded, and cared for the defendant's testator, having sold their home
and business in reliance upon his oral promise to give them his residence at his death. The
plaintiffs sued for specific performance, there being no remedy at law for the loss of business.
The defendants pleaded the Statute of Frauds. Held, that the plaintiffs could not recover. In
equity it is well settled that part performance may take a parol contract for the sale of land out
of the Statute of Frauds. Comments (1915) 24 Yale Law Journal, 426. There are two theories as
to the acts of part performance which are considered sufficient to take the contract out of the
Statute. The first is embodied in the English rule which requires the acts to be unequivocally
referable to the contract, the reason being that the actual contract may be proved if the acts
of their own nature point to some contract concerning the land.

Maddison v. Alderson (I883, H. L.) 8 A. C. 467; Fry, Specific Performance (6th ed. i92i) sec. 582-
in this case relief was granted where possession has been taken pursuant to the oral contract
and this case are decided upon above theory, but they are sometimes classed by themselves
as an arbitrary exception to the Statute.

The second theory is that which usually prompts equity to action, namely, the prevention of
irreparable injury and fraud. 5 Pomeroy, Equity Jurisprudence (2d ed. i919) sec. 2239. Cases

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involving the performance of personal services come under this theory. A few jurisdictions
refuse to grant specific performance unless the acts satisfy both theories.

Taylor v. Holyfield (i9i9) io4 Kan. 587, i8o Pac. 208; - The better view seems to be that specific
performance of such contracts should be granted on the ground of "equitable or constructive
fraud," in that the plaintiff in reliance on the defendant's promise has so changed his position
that he will be irreparably injured.

Gladville v. McDole (1910) 247 Ill. 34, 93 N. E. 86- For the same reason some courts grant
specific performance of a contract to convey or devise land in those cases where the personal
services rendered by a minor are construed as equivalent to adoption.

Clark, Licenses in Real Property (I92I) 21 COL. L. REV. 757, 779 - The Statute of Frauds was
passed to prevent fraud, not to produce or protect it. The proper solution of the problem
seems to lie in the adoption of the "equitable or constructive" fraud theory.

EQUITY-UNCONSCIONABLE CONTRACT CANCELLED -

Equity in a contractual context, is principally associated with the broad notion of

“unconscionable transaction” that has received statutory force in a number of common law
jurisdictions, most notably the US(via the UCC) and Australia. Unconscionability is a doctrine in
contract law that describes terms that are so extremely unjust, or overwhelmingly one-sided
in favor of the party who has the superior bargaining power, that they are contrary to good
conscience. England does not have any equivalent to this doctrine. While a few equitable
concept have received some attention particularly on the statutory doctrine of
unconscionability as it exists in Australia and in the American, the court of equity granting the
remedies provided by promissory and proprietary estoppels, the doctrine of ‘clean hands’ and
fiduciary relations and fiduciary duties. 4 .

In the case, Gierth v. Fidelity Trust Company (N. J., 1921), 115 Atl. 397- The plaintiff had a
deposit in a trust company of $22,500, of which he had lost all recollection because of an
illness which had resulted in a loss of memory. A company official who knew of the plaintiff's
mental condition, and also, by reason of his connection with the company, of the deposit,
concealed from the plaintiff his official connection and induced him to contract to pay nearly
one-half of the sum as consideration for revealing its whereabouts. Later the plain-tiff sued for
cancellation of the contract. There was no claim of mental incapacity to contract.

Held- because of the abnormal condition of the plaintiff's mind, and also because of the semi-
confidential position which the defendant occupied with respect to the plaintiff, equity would
give the desired relief. The case was well decided on either of the two bases suggested by the
court. As to the effect of the plaintiff's mental condition, although there was no claim that he
was mentally incompetent to contract, yet his illness had materially weakened his mental
powers and impaired his power of self-protection. In such cases, especially when coupled with
inadequacy of consideration, equity will give relief, even though neither the mental
impairment nor the inadequacy of consideration, standing alone, would suffice. Courts are
particularly willing to refuse specific performance against a defendant so afflicted.

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In an another case, Jones v. Stewart, 62 Neb. 207- The plaintiff had forgotten the existence of a
certain bank deposit, and the defendant , who knew about it, though he was not connected
with the bank, induced the plaintiff, as consideration for the conveyance of some relatively
worthless land, to assign the deposit to him by executing the necessary papers without
reading them. When the plaintiff learned what he had done he sued the defendant in case for
deceit. A decision for the defendant was predicated upon the fact that the parties had
contracted on equal terms and that there was no fiduciary relationship between them. The
plaintiff's position was somewhat weaker than that of the plaintiff in the principal case
because there was no evidence of an abnormal mental condition, nor was the defendant
connected in any way with the bank. So, in spite of the imposition on the plaintiff which would
have made a decree granting relief seem equitable, the two cases may be distinguished.

EQUITY-SPECIFIC PERFORMANCE OF CONTRACTS -

In the case, Tennessee Electric Power Company vs. White County, 52 Federal 1065 (1931)-
Plaintiffs, White and Van Buren counties filed a petition against defendant, The Tennessee
Power Company, for permission to raise its dam to a height of 75 feet above the low water
mark in Caney Fork river, the dividing line between the two counties. It was visible that the
erection of a larger dam would cause the waters in the river and tributaries to flood certain
bridges and fords which the counties maintained. As a condition to the granting of the
permission sought, the company agreed to raise the bridges and build others where the fords
were destroyed, without cost to the counties, agreeing to bear the "cost of continued
maintenance of said bridges." The bridges were raised or erected and maintained until March,
1929, when an unprecedented flood damaged them in varying degrees.

After that company denied to repair them then suit was brought to compel performance of
the contract. Court did not give Specific performance because following grounds: -That proper
performance would invoke an extensive supervision of a series of acts, which a non-expert
could not give, and that there was a complete and adequate remedy at law, in a suit for
damages. The general rule is that the courts will not decree specific performance of contracts
for the erection of and repair of buildings, the construction of works, and the conduct of
operations requiring special knowledge, skill or foresight. Pomeroy's Specific Performance of
Contracts (3rd Ed.) paragraph 23;

Jones vs. Parker, 163 Mass. 564. Walsh, in his treatise on Equity, states "Where the remedy at
law is clearly inadequate, the bogy developed by the courts in the earlier cases of the difficulty
of necessary superintendence has been disregarded. The courts now realize that
superintendence by the courts or its representative is unnecessary, and that the court is called
on merely to construe the contract and to make the decree, ordering its performance
accordingly, leaving to the plaintiff the privilege of raising the question thereafter as to
whether or not the decree has been complied with, with undoubted power in the court to
compel full performance. Consequently, impracticability of specific performance because of
difficulty of superintendence by the courts may be regarded as an exploded doctrine under
the prevailing and better considered cases."

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Brummel vs. Clifton Realty Co., 125 Atlantic 905. The one important question involved in cases
of this type is whether or not enforced specific performance is as expedient as the
performance of the work by the plaintiff himself through another contractor, or otherwise,
and the recovery of the cost by an action for damages. In the case under discussion, the latter
relief seems most suitable and practical, for all the parties concerned, for the reason that the
counties could themselves do the work or have it done, and recover costs thereof from the
defendant by way of damages. There even need be no delay in bringing the suit, because the
cost of repairs could readily be ascertained. It is well established that where public interest
demands specific performance, equity will decree it and if necessary supervise it for an
indefinite period.

Joy vs. St. Louis 138 U.S. 1. In the principal case, the public was, of course, interested in the
restoration of the bridges, but nevertheless that interest was no of such a character as to
justify a decree of specific performance, such as where a utility corporation fails or refuses to
operate its franchise, there being no one else to operate it. In that situation, damages could
not measure the loss the public would sustain. It might be contended for the plaintiff that the
doing of the work at a reasonable expense must depend upon the control of the stages of the
water behind the dam, and as that control is in the defendant, it is not practicable to do the
work economically, unless the power company does the work itself. However, it would be
against the interest of the defendant company not to cooperate in the work, for they would
have to bear any additional expenses incurred by reason of their conduct. It is to be
remembered that the fundamental basis of specific performance of contracts is the
inadequacy of damages as a remedy, and any other ground relied upon is simply a supporting
argument. Consequently, the holding of the court in the principal case is sound, for without a
doubt damages are sufficient relief for the plaintiffs.

REDEMPTION IN MORTGAGE -

In mortgage there is a

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right of redemption which every mortgagor have and this right

is created by virtue of the

mortgage deed. This right

is considered to be inalienable and cannot be taken away from a mortgagor, it means of any
contract to the contrary.

According to

Black’s

Law Dictionary, term “redemption” can be

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defined as

the act of the vendor of property in buying it back again from the purchaser at the same or
an enhanced price. 5

The

right of

redemption

of a mortgage is a legal right under Section 60 of the Transfer of Property Act, 1882 ,

a right of redemption can be described as the mortgagor’s right to get retransferred the
mortgaged property, free from any encumbrance, on his repaying the mortgage debt with
due interest, before his right to redeem is foreclosed or the property mortgaged is got sold by
the mortgagee 6 .

It simply means that

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makes mortgagor the owner of the property mortgaged, and makes him able

get his property back from the mortgagee on paying the amount borrowed from him.

A clog on a right,

it means the mortgagee cannot insert a clause in mortgage deed that clause would seize the
mortgagor’s “right of redemption”. Under

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redemption-of-a-mortgagor 100%

Indian legal system,

such provisions would not be able to alienate a mortgagor of his “Right of Redemption”, and
such provisions would be void ab initio.

The reason for such clauses under the mortgage deed being void is quite interesting and
reasonable. It would not be difficult to understand that a person mortgages his property
when he is in need of money, and would not be in the same position as that of the
mortgagee. Also, it would not be difficult to understand that mortgagee would try to misuse
his position to

take advantage of

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redemption-of-a-mortgagor 95%

the mortgagor, and it is for this reason that such clause becomes obvious which would push
away a mortgagor from his property. It is highly possible that a person agrees to enter in a
mortgage having clauses which extinguish his right of redemption, but it would not be
necessary that the provisions have been accepted by him willingly. In need of money, a
person would agree to the terms and conditions of the mortgagee even if he doesn’t want to
do so. But, law doesn’t sit silent and in such cases it steps in the picture, and save the basic
rights of a mortgagor. Law doesn’t allow any person

to alienate a mortgagor of his “Right of redemption”. Such right would remain effective
unless the property has been sold off or under any statutory provision.

Even if

mortgage

has went to the court for the foreclosure of the

property mortgaged, mortgagor can redeem his property by paying off the full amount in the
court.

In recent years Supreme Court gave decision on right of redemption .

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Time period is not the essence in case of right of redemption.

One such case was decided by the court in Achaldas Durgaji Oswal v Gangabisan Heda 7 ,

in this case two

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suit were

filed by mortgagee for the foreclosure of the property and another by mortgagor. Lower
court asked mortgagor to pay off the amount within 3 months, but he was failed do so.
Instead, he paid off the amount after a period of 3 years and at that point of time his suit was
rejected by the lower court on ground of exceeding the limitation period as decided by the
court. Lower court’s decree was reversed by the High Court, which was upheld by the
Supreme Court. It was held by the Supreme Court

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that “

the right of redemption of mortgagor being a

statutory right, the same can be taken away only

in terms of the

proviso appended to

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Section 60 of the Act which is extinguished either by a decree or by

act of

parties. Admittedly, in

the instant case, no decree has been

passed extinguishing the right of the mortgagor nor such right has come to an end by act of

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redemption-of-a-mortgagor 98%

the

parties.”

In

Harbans v. Om Prakash 8 , Supreme Court referred Mulla’s The Transfer of Property Act, 9th
Ed,

where it is stated

that “

The right of redemption is an incident of a subsisting mortgage and subsist as long as the
mortgage

itself subsists. It can be extinguished as provided in the section and when it is alleged to be
extinguished by a decree, the decree should run strictly in accordance with the forum
prescribed for the purpose. Dismissal of an earlier suit for redemption whether as abated or
as withdrawn or in default would not be barred the mortgagor from filing a second suit for
redemption

so long as the mortgage subsists and the right of

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redemption is not extinguished by the efflux of time or decree of the court in the prescribed
form.”

Consequently, the

suit was decreed in favour of the mortgagor.

Similar view was taken by the Supreme Court in Pomal Kanji Govindji v Vrajlal Karsandas
Purohit 9 .Further it was held by the Supreme Court in Shivdev Singh v Sucha Singh 10 - that a

provision incorporated in the mortgage deed to prevent or hamper the redemption would be
void,

and that the right provided by section 60 of the Transfer of Property Act, 1882 is a statutory
right and clog on this right should be determined depending on the facts and circumstances
of each case.

CONCLUSION – In whole through project I finally on conclusion that Common law does not
recognise many of rights and does not give remedy , only recognise the legal right but after
the court of equity started giving right like “right of redemption, doctrine of unconscionable
transaction” etc. and giving relief of injunction, specific performance etc. By all this court of
equity come in area of commerce. In commerce like in banking, commercial transaction,
contract etc many of cases now a day solved by principle of equity. Judges also give more
importance to the equity rather the literal statutes because equity looks into object or
intention behind the act. Equity play major role in commerce and also accepted by legal
system. In many of statutes where equity uses like- Transfer of property Act, Contract Act,
Specific Relief Act, Indian Trust Act etc. So intervention of equity in commerce, many of
problem in commercial transaction and contract are solved. In this project I describe oral
contract, unconscionable transaction, in mortgage deed and how equity play a major role in
this and also give relief of specific performance, and also developed the new right of
redemption which mortgagor right to redeem his property back. Many of commercial cases
are decided by equity, not only by reason of the relevance of equitable doctrine, but also, and
especially, because of the availability of the equitable proprietary remedy of tracing and the
significance of equitable securities .

1 http://thelawdictionary.org/equity/ 2 http://www.austlii.edu.au/au/journals/
UWALawRw/1988/11.html 3 (1983) 3 SCC 379 4 https://books.google.co.in/books?
id=NoggAwAAQBAJ&pg=PA147&dq=equity+and+commercial
+contract&hl=en&sa=X&ei=PF8BVY_cHdGeugSOwIGgDw&ved=0CB0Q6AEwAA#v=onepage&q=
equity%20and%20commercial%20contract&f=false

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http://www.legallyindia.com/Blogs/Entry/mortgaged-property-inalienable-

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right-of-redemption-of-a-mortgagor 6 Section 60 of Transfer of Property Act, 1882 7 (2003) 3

SCC 614 8 AIR 2006 SC 686 9 AIR 1989 SC 436 10 AIR 2000 SC 1935

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Hit and source - focused comparison, Side by Side:

Left side: As student entered the text in the submitted document.

Right side: As the text appears in the source.

Instances from: Tanay Jha & Vinay Sharma.docx

1 70% 1: Tanay Jha & Vinay Sharma.docx 70%

portion of natural justice which is judicially enforceable but
common law courts various reasons was not enforced that
portion. Equity is that system of justice which was developed in
and administered by the high court of chancery in England in the
exercise of its extraordinary jurisdiction. This definition
The source document can not be shown. The most likely reason
is that the submitter has opted to exempt the document as a
source in Urkund's Archive.

2 100% 2: Tanay Jha & Vinay Sharma.docx 100%

is rather suggestive than precise and invites inquiry rather than The source document can not be shown. The most likely reason
answers it. is that the submitter has opted to exempt the document as a
source in Urkund's Archive.

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URKUND ProjectE.docx (D54896739)

Instances from: https://www.legallyindia.com/views/entry/mortgaged-property-inalienable-right-of-redemption-of-a-mortgagor

8 95%
makes mortgagor the owner of the property mortgaged, and
makes him able
get his property back from the mortgagee on paying the amount
borrowed from him.
8: https://www.legallyindia.com/views/entry/mortgaged-
property-inalienable-right-of-redemption-of-a-mortgagor 95%
makes mortgagor the owner of the property mortgaged, and
makes him able get his property back from the mortgagee on
paying the amount borrowed from him. Clog on a right

A clog on a right,

9 100%
Indian legal system,
such provisions would not be able to alienate a mortgagor of his
“Right of Redemption”, and such provisions would be void ab
initio.
The reason for such clauses under the mortgage deed being
void is quite interesting and reasonable. It would not be difficult
to understand that a person mortgages his property when he is
in need of money, and would not be in the same position as that
of the mortgagee. Also, it would not be difficult to understand
that mortgagee would try to misuse his position to
9: https://www.legallyindia.com/views/entry/mortgaged-
property-inalienable-right-of-redemption-of-a-mortgagor 100%
Indian legal system, such provisions would not be able to
alienate a mortgagor of his “Right of Redemption”, and such
provisions would be void ab initio. The reason for such clauses
under the mortgage deed being void is quite interesting and
reasonable. It would not be difficult to understand that a person
mortgages his property when he is in need of money, and would
not be in the same position as that of the mortgagee. Also, it
would not be difficult to understand that mortgagee would try to
misuse his position to

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10 95%
the mortgagor, and it is for this reason that such clause becomes
obvious which would push away a mortgagor from his property.
It is highly possible that a person agrees to enter in a mortgage
having clauses which extinguish his right of redemption, but it
would not be necessary that the provisions have been accepted
by him willingly. In need of money, a person would agree to the
terms and conditions of the mortgagee even if he doesn’t want
to do so. But, law doesn’t sit silent and in such cases it steps in
the picture, and save the basic rights of a mortgagor. Law
doesn’t allow any person
to alienate a mortgagor of his “Right of redemption”. Such right
would remain effective unless the property has been sold off or
under any statutory provision.
Even if
mortgage
has went to the court for the foreclosure of the
property mortgaged, mortgagor can redeem his property by
paying off the full amount in the court.
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property-inalienable-right-of-redemption-of-a-mortgagor 95%
the mortgagor, and it is for this reason that such clause becomes
obvious which would alienate a mortgagor of his property. It is
highly possible that a person agrees to enter in a mortgage
having clauses which extinguish his right of redemption, but it
would not be necessary that the provisions have been accepted
by him willingly. In need of money, a person would agree to the
terms and conditions of the mortgagee even if he doesn’t want
to do so. But, law doesn’t sit silent and in such cases it steps in
the picture, and save the basic rights of a mortgagor. Law
doesn’t allow any person to alienate a mortgagor of his “Right of
redemption”. Such right would remain effective unless the
property has been sold off or under any statutory provision.
Even if mortgage has went to the court for the foreclosure of the
property mortgaged, mortgagor can redeem his property by
paying off the full amount in the court.
11: https://www.legallyindia.com/views/entry/mortgaged-
property-inalienable-right-of-redemption-of-a-mortgagor 100%
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Time period is not the essence in case of right of redemption.
One such case was decided by the court in Achaldas Durgaji
Oswal v Gangabisan Heda 7 ,
14
the
parties.”
In
Harbans v. Om Prakash 8 , Supreme Court referred Mulla’s The
Transfer of Property Act, 9th Ed,
where it is stated
that “
The right of redemption is an incident of a subsisting mortgage
and subsist as long as the mortgage
itself subsists. It can be extinguished as provided in the section
and when it is alleged to be extinguished by a decree, the decree
should run strictly in accordance with the forum prescribed for
the purpose. Dismissal of an earlier suit for redemption whether
as abated or as withdrawn or in default would not be barred the
mortgagor from filing a second suit for redemption
ProjectE.docx (D54896739)
Time period is not the essence in case of right of redemption.
One such case was decided by the court in Achaldas Durgaji
Oswal v Gangabisan Heda (2003) 3
98% 14: https://www.legallyindia.com/views/entry/mortgaged-
property-inalienable-right-of-redemption-of-a-mortgagor 98%
the mortgagor. In Harbans v. Om Prakash AIR 2006 SC 686,
Supreme Court referred Mulla’s The Transfer of Property Act, 9th
Ed, where it is stated that “The right of redemption is an incident
of a subsisting mortgage and subsist as long as the mortgage
itself subsists. It can be extinguished as provided in the section
and when it is alleged to be extinguished by a decree, the decree
should run strictly in accordance with the forum prescribed for
the purpose. Dismissal of an earlier suit for redemption whether
as abated or as withdrawn or in default would not be barred the
mortgagor from filing a second suit for redemption so long as
the mortgage subsists and the right of redemption is not
extinguished by the efflux of time or decree of the court in the
prescribed form.”Consequently, the suit was decreed in favour of
the mortgagor. Similar view was taken by the Supreme Court in
Pomal Kanji Govindji v Vrajlal Karsandas Purohit AIR 1989 SC
436.Further it was held by the Supreme Court in Shivdev Singh v
Sucha Singh air 2000 SC 1935, that a provision incorporated in
the mortgage deed to prevent or hamper the redemption would
be void, and that the right provided by section 60 of the Transfer
17
URKUND ProjectE.docx (D54896739)

so long as the mortgage subsists and the right of of Property Act, 1882 is a statutory right and clog on this right
should be determined depending on the facts and circumstances
redemption is not extinguished by the efflux of time or decree of of each case.
the court in the prescribed form.”

Consequently, the

suit was decreed in favour of the mortgagor.

Similar view was taken by the Supreme Court in Pomal Kanji

Govindji v Vrajlal Karsandas Purohit 9 .Further it was held by the
Supreme Court in Shivdev Singh v Sucha Singh 10 - that a

provision incorporated in the mortgage deed to prevent or

hamper the redemption would be void,

and that the right provided by section 60 of the Transfer of

Property Act, 1882 is a statutory right and clog on this right
should be determined depending on the facts and circumstances
of each case.

18
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Instances from: http://www.lawyersclubindia.com/experts/Mortgaged-property-434536.asp

12 94% 12: http://www.lawyersclubindia.com/experts/Mortgaged-

suit were
filed by mortgagee for the foreclosure of the property and
another by mortgagor. Lower court asked mortgagor to pay off
the amount within 3 months, but he was failed do so. Instead, he
paid off the amount after a period of 3 years and at that point of
time his suit was rejected by the lower court on ground of
exceeding the limitation period as decided by the court. Lower
court’s decree was reversed by the High Court, which was upheld
by the Supreme Court. It was held by the Supreme Court
that “
the right of redemption of mortgagor being a
property-434536.asp 94%
suit was filed by the mortgagee for the foreclosure of the
property, and another suit was filed by the mortgagor. Lower
court asked mortgagor to pay off the amount within 3 months,
but he was not able to do so. Instead, he paid off the amount
after a period of 3 years and at that point of time his suit was
rejected by the lower court on ground of exceeding the
limitation period as decided by the court. Lower court’s decree
was reversed by the High Court, which was upheld by the
Supreme Court. It was held by the Supreme Court that “the right
of redemption of mortgagor being a statutory right, the same
can be taken away only in terms of the

statutory right, the same can be taken away only

in terms of the

13 91% 13: http://www.lawyersclubindia.com/experts/Mortgaged-

property-434536.asp 91%
Section 60 of the Act which is extinguished either by a decree or
by Section 60 of the Act which is extinguished either by a decree or
by act of parties.
act of

19
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parties. Admittedly, in In

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Instances from: https://www.lawctopus.com/academike/inalienable-right-redemption-mortgagor/

7 84%
right of redemption which every mortgagor have and this right
is created by virtue of the
mortgage deed. This right
is considered to be inalienable and cannot be taken away from a
mortgagor, it means of any contract to the contrary.
According to
7: https://www.lawctopus.com/academike/inalienable-right-
redemption-mortgagor/ 84%
Right of redemption is the right which every mortgagor possess,
which is created by virtue of the mortgage deed. This right is
considered to be inalienable, and cannot be taken away from a
mortgagor by means of any contract to the contrary. According
to Black’s Law Dictionary, term “redemption” can be defined as
the act of the vendor of property in buying it back again from the
purchaser at the same or an enhanced price. “Right of
Redemption”

Black’s

Law Dictionary, term “redemption” can be

defined as

the act of the vendor of property in buying it back again from the
purchaser at the same or an enhanced price. 5

The

right of

redemption

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Instances from: http://lupuzexej.htw.pl/mortgage-under-transfer-property-act.html

15 73% 15: http://lupuzexej.htw.pl/mortgage-under-transfer-property-

http://www.legallyindia.com/Blogs/Entry/mortgaged-property-
inalienable-
right-of-redemption-of-a-mortgagor 6 Section 60 of Transfer of
Property Act, 1882 7 (2003) 3
act.html 73%
http://www.legallyindia.com/Blogs/Entry/mortgaged-property-
inalienable-right-of-redemption-of-a-mortgagor
463 Broome Street New York / NY 10013 Phone: 212 966 1722

PATINA Section 70 in The Transfer Of Property Act, 1882

22
URKUND
Instances from: https://studopedia.su/13_167800_ROMAN-LAW.html
5 100%
Equity created new rights by recognising trusts and giving
beneficiaries rights against trustees.
6 100%
Equity also developed the equity
of redemption. At common law, under a mortgage, if the
mortgagor had not repaid the loan once the legal redemption
date had passed, he would lose the property but remain liable to
repay the loan. Equity allowed him to keep the property if he
repaid the loan with interest.
This right to redeem the property is known as the equity of
redemption.
Equity created new remedies:
(a) Specific performance (
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5: https://studopedia.su/13_167800_ROMAN-LAW.html 100%
Equity created new rights by recognising trusts and giving
beneficiaries rights against trustees. (
6: https://studopedia.su/13_167800_ROMAN-LAW.html 100%
Equity also developed the equity of redemption. At common law,
under a mortgage, if the mortgagor had not repaid the loan
once the legal redemption date had passed, he would lose the
property but remain liable to repay the loan. Equity allowed him
to keep the property if he repaid the loan with interest. This right
to redeem the property is known as the equity of redemption.
Equity created new remedies: (a) Specific performance,
URKUND ProjectE.docx (D54896739)

Instances from: https://studfiles.net/preview/5130119/page:9/

4 100% 4: https://studfiles.net/preview/5130119/page:9/ 100%

In 1474 the Chancellor issued the first decree in his own name, In 1474 the Chancellor issued the first decree in his own name,
which began the independence of the Court of Chancery from which began the independence of the Court of Chancery from
the King's Council. the King's Council.

24
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Instances from: http://thelawdictionary.org/equity/

3 100% 3: http://thelawdictionary.org/equity/ 100%

In its broadest and most general signification, this term In its broadest and most general signification, this term denotes
the spirit and the habit of fairness, justness, and right dealing
denotes the spirit and the habit of fairness, justness, and right which would regulate the intercourse of men with
dealing which would regulate the intercourse of men with

25