PRITHI NATH SINGH AND OTHERS v. SURAJ AHIR AND OTHERS
Citation: [1963] 3 S.C.R. 302; 1962 INSC 367
Court: Supreme Court of India
Bench: K.C. DAS GUPTA , RAGHUBAR DAYAL
Judgment date:
Case summary
1962 INSC 367. Supreme Court of India judgment dated 1962-12-10. PRITHI NATH SINGH AND OTHERS v. SURAJ AHIR AND OTHERS. Read the judgment and case details...
Judgment text
:l02 SUPREME COURT REPORTS [1963) PRITHI NATH SINGH AND OTHERS 'IJ, SURAJ AHIR AND OTHERS (K. c. DAS GUPTA and RAGHUBAR DAYAL, JJ. ) Land Reform-Vesting of land in ti,le Go1! ernment-Mort· gage money paid-Whether mortg1ge subsists until vesting - Failure of mortgagee to perform his duti mortgagees agreed to accept these lands in full satisfaction of their claims or promised to pay the sum of Rs. lllO mentioned therein. This was only an agreement to convey the lands after three months, and, if at all the · question of extinction of the equity of redemption could arise on the conveyance being executed but not before. " There are other cases also which throw ·a light on this question a. nd go against the contention of the respondents. ·- In Samar Ali v. Karim-ul-lah (1) it was said: «Now, as I have said, the contract of mortgage in the present case being subject to the provisions of the Regulation, tbe charge would have been redeemed as soon a.
s the principal mortgage money with twelve percent interest had been realised by the mortgagee from the profits of the property. " In Muhammed Mahmud Ali v. Kalyan 2 Das ( ) it wa. s said: "It cannot be disputed that the right of redemption pre-supposes the existence of a mortgage on certain property which at the (I) ( 1886) I. L. R. 8 All. 402, 405. (2) ( 1895) I. L. R. 18 All. 189,192· 310 SUPREME COURT REPORTS [l9ti3J time of redemption is security for the money due to the mortgagee. It therefore follows that the only property which a second or other subsequent mortgagee may redeem is the property on which the first mortgagee is. entitled to enforce his security. From the very necessity of things the right of redemp· tion can be exercised in respect of such property only as is subject to a. mortgage capable of enforcement. " There can be nothing for enforcing & mqrtgage when the money has ,been paid up . and therefore the right to redeem ceases on payment of the mort- . gage money.
' 1 In Balakrishna v. Rangnath ( ) it was said: "Now the right to redeem can only be extinguished by act of parties or by a decree of a Court. (See the proviso to section 60 of the Trausfer of Proper~y Act). But when it is by act of parties the Act must take the shape and observe the formalities which the law prescribes. One method is by payment in cash. In that event nothing is necessary beyond the payment. " 2 In Ram Prasad v. Bishambhar Singh \ ) the question formulated for determination was whether the suit being a suit to recover possessipn of the mortgaged property after the. mortgage money had been paid off was a suit •against the mortgagee to redeem' or 'to recover possession of immovable property mortgaged'. Braund J. , said: "Now, it is quite obvious that that section (s. 60 of the Transfer of Property Act) can only refer to a case in which a mortgagor under a subsisting mortgage approaches the Court to establish his right . to red,eem and to (I) l,L. R. 1950 Nag. 618, 621.
(2) A. I. R. 19C6. All. 400,402. have that redemption carried out by the pro-cess of the various declarations and orders of Pritl1i Nath Singh the Court by which it effects redemption. In v. other words. s. tiO contemplates a case in Suraj Ahir which the mortgage is still subsisting and the Roghubar 1'aJal J. mortgagor goes to the Court to obtain the return of his property on repayment of what is still due. · Section 62, on the other hand, is in marked contract to s. 60. Section 62 says that in the case of a usufructuary mortgage the mortgagor has a right to 'recover possession' of the property when (In a case in which the mortgagee is authorised to pay himself the mortgage money out of the rents and profits of the property} the principal money: is paid off. As we see it, that is not a case of J,'edemption at all.
At the moment when the rents and profits of the mortgaged property sufficed to discharge the principal secured by the mortgage, the mortgage came to ,an end aμd the correlative right arose in the mortgagor •to reqover possession of the property'. The framers. of the Transfer of Property Act have clearly recognised the distinction between the . procedure which follows a mortgagor's desire to redeem a subsisting mortgage and the procedure which follows the arising of a usufructuary mortgagor's right. to get his property back after the principal has been paid off. " We therefore hold that the mortgage was not subsisting on the date of vesting, it having come to an end on payment of the mortgage money in 1943. 11ind that the respondents cannot get the advantage of s. 6(l)(c) of the Act. We therefore dismiss the review petition. In the cir<;iumstances of the case, there will be no order 81! . ~O CQ/3~,B. Petition dismissed.
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