MORTGAGE

The term mortgage plays a vital role in understanding the property law. Mortgage refers to transfer
of interest vested in an immovable property for advancing a loan or for something which would
give rise to pecuniary interest in future. The person who transfers the interest is known as
mortgagor and the person to whom the interest is transferred is known as mortgagee. The amount
for which the property is mortgaged is known as the principal money or amount. In the Transfer of
Property Act,1882, different types of mortgages have been defined along with attached conditions.
Essential conditions of a mortgage:
1. There is a transfer of interest to the mortgagee.
2. The interest created in specific immovable property.
3. The mortgage should be supported by consideration.

Section 58 to 104 of the Transfer of Property Act, 1882 deals with mortgages and charges and the
Rights and Liabilities of Mortgagor and Mortgagee. The rights of a Mortogagor can be classified as
follows:
1.Right of Redemption Section 60
2.Right to transfer to a third party 60A
3.Right to inspection and production of documents 60B
4.Right to accession 63
5.Right to improvement 63A
6.Right to a renewed lease 64
7.Right to grant a lease65A

As soon as the property is mortgaged, some of the rights of the mortgagor are automatically
reserved. One such important right is the Right to Redemption.

(QUESTION)

Section 60 Of Transfer Of Property Act, 1882

Whenever a person mortgages his property as a security, he has the right to take it back when he
pays back the amount along with interest. The property cannot be kept forever with the mortgagee
because it will deprive the mortgagor of his right to Redemption. Section 60 states about the right
and explains about the things which are to be returned to mortgagor on payment of money.

The mortgagor in any case cannot be deprived of his right. Any such condition that restricts the
mortgagor from redeeming his property back from the mortgagee is known as Clog on Redemption.
Such conditions are considered as void ab initio. There are some exceptions in which this clog is not
invalid but, in most of the cases it is.

The title of this section reads as Right of Mortgagor to Redeem. This section incorporates the right
to redemption in the property law. This right is a statutory right in India. This section mentions that
the mortgagor on the payment of the principal money should be returned the property secured. In
mortgage, the property is not absolutely transferred to the mortgagee and therefore it needs to be
returned on the payment.

There are also certain documents which needs to be returned to the mortgagor such as the mortgage
deed or any document related to the property. It is not fair to keep the property forever on the
ground that the mortgagor did not pay the amount on time. This is against the principal of justice,
equity and good conscience. There are two terms that are incorporated within the section. They are:
1) Clog on Redemption
2) Once a mortgage, always a mortgage.
Both are interrelated to the section and are necessary to be understood.

CLOG ON REDEMPTION

In Stanley v. Wilde[13], Lindley M.R. gave one of the founding explanations of the basis of this
doctrine –
“The principle is this: a mortgage is a conveyance of land or an assignment of chattels as a security
for the payment of a debt or the discharge of some other obligation for which it is given. This is the
idea of a mortgage: and the security is redeemable on the payment or discharge of such debt or
obligation, any provision to the contrary notwithstanding. That, in my opinion, is the law. Any
provision inserted to prevent redemption on payment or performance of the debt or obligation for
which the security was given is what is meant by a clog or fetter on the equity of redemption and is
therefore void. It follows from this, that ‘once a mortgage always a mortgage’.”

The maxim ‘once a mortgage always a mortgage’ means that there can no covenant that modifies
the character of the mortgage agreed between the parties that would stop the mortgagor to redeem
his property back on payment of the principal and respective interests[14].

The basis of this doctrine lies in the exercise equity, justice and good conscience[15] and is
extensive to areas where the act is not applicable[16]. On a realistic perusal of the workings of a
mortgage, it is observed in most of the cases that the mortgagor enters into such an agreement
because of some financial predicament[17]. The law recognizes the power of the dominant party to
insert clauses which will serve his personal interests by creating impediments on the right to redeem
the property[18]. Such obstructions are henceforth struck down by the courts to enable the

 mortgagee to redeem his property[19]. In U. Nilan v. Kannayyan (Dead) Through Lrs.[20],

explaining the philosophy behind the doctrine, it was said that

“Adversity of a person is not a boon for others. If a person in stringent financial conditions had
taken the loan and placed his properties as security therefor, the situation cannot be exploited by the
person who had advanced the loan. The Court seeks to protect the person affected by adverse
circumstances from being a victim of exploitation. It is this philosophy which is followed by the
Court in allowing that person to redeem his properties by making the deposit under Order 34 Rule 5
C.P.C.

There are no fixed qualifying circumstances in determining what would or would not amount to a
clog. It has been something that would have to be decided on the facts and circumstances of the
case. There are certain situations where it was held that the covenant was a clog on the right.

Condition of Sale of Property:

A covenant that a mortgaged property, if not redeemed within a fixed time, would translate into a
sale is a clog[28]. However if there is a separate agreement whereby the mortgagor executes a sale
deed in favor of the mortgagee as an independent transaction, such sale deed is valid[29].

In Meharban Khan v. Makhna[1930], the mortgage agreement provided that the mortgagee was to
be entitled to possession of the property for 19 years. There was a stipulation that if the mortgagor
paid off his debt, he would be allowed to redeem the property only till a limited interest and the
residual interest would belong to the mortgagor. It was further envisaged that on failure of the
mortgagor to pay, the property would be deemed to be sold to the mortgagee permanently. The
Court ruled that both conditions amounted to a clog. It was held that on payment of the full amount
due, the property would be reverted back without any encumbrance.

This principle would also extend to cases where on default of payment, the property would be
deemed to have been foreclosed, amounts to a clog[31]. However parties are free to stipulate such a
condition subsequently after the mortgage agreement[32].

In Kuddi Lal v. Aisha Jehan Begam[1927], the plaintiff-mortgagor was allowed to redeem the
property back by paying from her own pockets and not through transferring the property. The Court
held that such a covenant was a clog on redemption since it restrained alienation by the mortgagor.

Long Term Mortgages:

Long term mortgages are common in cases of usufructuary mortgages. A term of 95 years or 100
years would definitely extend beyond one’s lifetime and superficially seems like a clog[23]. Taking
cognizance of the same, the Supreme Court has ruled that only by virtue of lengthy period, a
mortgage would not amount to a clog, there must exist a presence of undue advantage or fraud to
term it as a clog.

In Vadilal Chhaganlal v. Gokaldas Mansukh(1953), the mortgage agreement provided that it

would subsist for 99 years and the mortgagee would be allowed to construct any structure on the
property without any limit on the cost. The Supreme Court reasoned that it would be beyond the
ability of the mortgagor to repay the principal money along with the interests and the construction
expenses. It was held that both the conditions amounted to a clog on the mortgagee’s right of
redemption.

# CASE LAW 1: GANGADHAR V SHANKAR LAL (AIR 1958 SC 773)

[A long term is not necessarily a clog on redemption. The question is essentially one of fact and has
to be decided on the circumstances of each case.]

Facts: The mortgage instrument in question contained these terms, the mortgagor or his heirs were
not entitled to redeem the property for a period of 85 years and after the expiry of 85 years they had
to shall redeem it within a period of six months, otherwise we shall have no claim over the
mortgaged property, or the mortgage-money and the deed will convert into a sale deed.

Issue: Whether a term period in a mortgage instrument, so far as it precludes the right to redeem
from accumulating for a time, a clog on the equity of redemption?

CONTENTIONS
Appellant: The covenant creating the long term of 85 years for the mortgage, taken along with the
provision that the mortgagor must redeem within a period of 6 months thereafter or not at all, is
really a clog on the equity of redemption and is therefore invalid.

Respondents: Drawing ref to Bakhtawar Begum v Husaini Khanam AIR 1914, The right of
redemption can only arise on the expiration of the specific period.
In the present case, the term of the mortgage is 85 years and there is no stipulation entitling the
mortgagor to redeem during that term. That term has not expired. Thus, the suit filed after 46 years
of the creation of the mortgage is premature.

OBSERVATION (Justice Sarkaria)

OBJECT OF THE COURT IN MATTERS OF SEC 65

1. The rule against clogs on the equity of redemption no doubt involves that the courts have the
power to relieve a party from his bargain.

2. The court's jurisdiction bargain depends on relieving a mortgagor from his own whether it
was obtained by taking advantage of any difficulty or embarrassment that he might have
been in when he borrowed the money on the mortgage.

• Was the mortgagor oppressed? If he was, then he may be entitled to relief.

• We then have to see if there was anything unconscionable in the agreement






 • Now this question is essentially one of fact and has to BE DECIDED ON the circumstances
of each case.

DEVELOPMENT OF THEORY IN ENGLAND

The court's power against clogs on the equity of redemption evolved in the early English Courts of
Equity for a special reason. All through the ages the reason has remained constant and the court's
power is therefore limited by the reason.
In Vernon v Bethell (1762), the Lord Chancellor said that "this court of conscience is very jealous
of persons taking securities for a loan, and converting such securities into purchases. A mortgagee
can never provide at the time of making the loan for any event or condition on which the equity of
redemption shall be discharged, and the conveyance absolute.
In Kreglinger's case (1914), it was observed that this jurisdiction was merely a special application
of a more general power to relieve against penalties and to mould them into mere securities."

BASED ON FACTS OF THE CASE

On the aspect of 85 years term: All the facts indicate that the mortgagee had not taken any unfair
advantage of his position as the lender, nor that the mortgagor was under any financial
embarrassment. The term in the mortgage that it will not be redeemable until the expiry of 85 years
was not a clog in the circumstances of the case.
On the aspect of 6 months periods of Redeeming: However, the mortgagor's right to redeem must
be deemed to continue even after the period of 6 months (after the expiry of 85 years) has expired
and the attempt to confine that right to that period must fail.

HELD: The mere length of the period could not by itself lead to an inference that the bargain was in
any way oppressive or unreasonable. Depending on the facts and circumstances of a case, the Court
has not only the right to relieve a mortgagor of a bargain but also where the right to redeem is
restricted

# CASE LAW 2: POMAL KANJI GOVINDJI V VRAJLAL KARSANDAS PUROHIT (AIR

1989 SC 436)

FACTS:
The terms of the mortgage provided that the right of redemption would arise only after the expiry of
99 years from the date of execution of the mortgage. Since the possession was delivered to the
mortgagee, a condition in the deed also empowered him to demolish the existing structures on the
property and rebuild new ones and re-reimburse the entire cost of construction from the mortgagors.
In addition, the entire amount was to be paid to the mortgagee only at the end of the term, and no
periodical payment was permissible. The mortgagors filed a suit for redemption and for recovery of
possession before 99 years.

Issue: Whether a term period in a mortgage instrument, so far as it precludes the right to redeem
from accumulating for a time, a clog on the equity of redemption?

Observations

 The Right of Redemption Requires Protection

• It is a right of the mortgagor on redemption, by reason of the very nature of the mortgage, to
get back the subject of the mortgage and to hold and enjoy as he was entitled to hold and
enjoy it before the mortgage.

• The right of the mortgagor to redeem has its origin in an equitable principle for giving relief
against forfeiture even after the mortgagor defaulted in making payment under the mortgage
deed.

• It is a right which has been zealously guarded over the years by the courts. The maxim 'once
a mortgage, always a mortgage' and the avoidance of provisions obstructing redemption as
"clogs on redemption" are expressions of this judicial protection.

CLOG IN REDEMPTION IS INEQUITABLE

If he is prevented from doing so or is prevented from redeeming the mortgage, such prevention is
bad in law. If he is so prevented, the equity of redemption is affected by that whether aptly or not,
and it has always been termed as a clog. Such a clog is inequitable. This does not countenance it.
Bearing the aforesaid background in mind, each case has to be judged and decided in its own
perspective.

DETERMINING CLOG IN REDEMPTION

• Long term for redemption by itself, is not a clog on the equity of redemption.

• The court should take note of the time, the condition, the price spiral, the term bargain and
the other obligations in the background of the financial conditions of the parties.

• These factors must be correlated to each other and viewed in a comprehensive conspectus in
the background of the facts and the circumstances of each case, to determine whether these
are clogs on equity of redemption.

BASED ON THE FACTS OF THE CASE

A mortgage cannot be made altogether irredeemable or redemption made illusory. In the context of
fast-changing circumstances and economic stability, long term for redemption makes a mortgage an
illusory mortgage, though not decisive. It should prima facie be an indication as to how clogs on
equity of redemption should be judged.
• The whole amount of interest, etc. was to be paid only at the time of redemption, which
would make redemption practically impossible.

• The term of 99 years coupled with these conditions amounts to clog on the mortgagor's right
of redemption.

Whether the mortgage takes advantage of the mortgagor can be determined by several factors. The
Court observed that the following facts showed that there was a clog on equity:
1. The mortgagor’s economic and financial position,



















 2. The clause providing that interest had to be paid not periodically but in a lump sum at the
time of ultimate redemption,

3. The clauses allowing demolition and reconstruction of the building in this inflationary age
and debiting the mortgagor with an obligation to pay for the same as an obligation for
redemption,

4. Without pressure from the creditor, no one would like to mortgage the only house which is
the only abode on the earth.

HELD: The court held in their favour by holding that these conditions amounted to clog on their
right of redemption.

In Achaldas Durgaji Oswal v Gangabisan Heda[i] (2003) 3 SCC 614 , where a 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 proviso appended to 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 the parties.”
In Fateh Mohammad v Ram Dayal (1927) 2 Luck 588 I.C. 160, a period of 200 years was held to
be oppressive and unreasonable and a clog on redemption.

In Gulab Chand Sharma v Saraswati Devi (1977), where an issue pertaining to a clause in the
mortgage deed was raised. In this case, there was clause which was supposed to make mortgagee
the owner of the mortgaged property absolutely on mortgagor receiving the notice of re-entry from
the Land and Development Officer or any other such authority. But, this clause was termed by the
Supreme Court as a clog on the equity of redemption and was decreed accordingly in favour of the
mortgagor.

In Pomal Govindji v Vrajlal Purobit (AIR 1989 SC 436), the Apex Court held that a long term for
redemption, by itself, is not a clog on the equity of redemption. But, a very long period for
redemption (99 years in the present case), taken with other relevant factors (viz. inflation and rise in
prices) could create a presumption that it was a clog on the equity of redemption.

In Chhedi Lal v Babu Nandah (AIR 1944 All 204) it was observed, "In the inflationary world,
long term for redemption would prima facie raise a presumption of clog on the equity of
redemption."






# CASE LAW 3: SHIVDEV SINGH V SUCHA SINGH (AIR 2000 SC 1935)

FACTS: The disputed property was owned by one Prakash Singh who had mortgaged the same in
favour of the appellants for a consideration of Rs. 7000. The said Prakash Singh, the original owner,
sold certain land out of the mortgaged property in favour of the respondent Sucha Singh vide
registered sale deed for a valid consideration by which the mortgage money of Rs. 7000 was kept
with the respondent plaintiff as security (amanat) to be paid to the appellants.

CONTENTIONS

Respondents: Contended that Prakash Singh was financially tight and allegedly taking undue
advantage of his poor financial condition and helplessness the appellants got incorporated a term in
the mortgage deed, to the effect that the mortgage was for a period of 99 years which constituted a
clog on the equity of redemption and that the appellants had been enjoying the usufructs of the
mortgage for more than 20 years before the date of the filing of the suit.

Appellants: The appellants refused to deliver possession which necessitated the filing of the suit.
The clause prescribing the period of mortgage did not constitute a clog on the equity of redemption
and that the suit filed before the expiry of the stipulated time was premature in terms of Sec, 60 of
the T.P. Act. On the basis of the pleadings of the parties, the trial court framed the following issues:

ISSUES: (1) Whether the disputed land is liable to be redeemed in favour of the plaintiff as claimed
through this suit?
(2) Whether the period of 99 years of mortgage is a clog on the equity of redemption?

OBSERVATIONS
The trial court and the appellate court were of the view that the mortgage of the land for a period of
99 years constitutes a clog on the equity of redemption and as such is illegal and void.The right of
redemption recognized under the Transfer of Property Act is thus a statutory and legal right which
cannot be extinguished by any agreement made at the time of mortgage as part of the mortgage
transaction.

RIGHT OF REDEMPTION CANNOT BE EXTINGUISHED

Reference was drawn to Jayasingh Dnyanu Mhoprekar v Krishna Babaji Patil (1985) which
stated that such extinguishment of right of redemption can take place by a contract between the
parties, by a merger or by a statutory provision which debars the mortgagor from redeeming the
mortgage. A mortgagee who has entered into possession of the mortgaged property under a
mortgage will have to give up possession of the property when the suit for redemption is filed
unless he is able to show that the right of redemption has come to an end or that the suit is liable to
be dismissed on some other valid ground. This flows from the legal principle which is applicable to
all mortgages, namely 'Once a mortgage, always a mortgage"

 ANY CLOG ON EQUITY OF REDEMPTION WILL BE VOID

Drawing reference to Stanley v Wilde (1899) The idea of a mortgage is that the security is
redeemable on the payment or discharge of such debt or obligation, any provision to the contrary
notwithstanding. Any provision inserted to prevent redemption on payment or performance of the
debt or obligation for which the security was given is what is meant by a clog or fetter on the equity
of redemption and is therefore void.

DETERMINING UNCONSCIONABLE BARGAIN OR ADVANTAGE

Drawing reference to the Pomal Kanji Govindji v Vrajlal Karsandas Purobit AIR 1989 In the
context of fast-changing circumstances and economic stability, long term for redemption makes a
mortgage an illusory mortgage, though not decisive. It should prima facie be an indication as to how
clogs on equity of redemption should be judged". Whether the mortgage takes advantage of the
mortgagor can be determined by several factors. The Court observed that the following facts
showed that there was a clog on equity:
• The mortgagor’s economic and financial position,

• The clause providing that interest had to be paid not periodically but in a lump sum at the
time of ultimate redemption,

• The clauses allowing demolition and reconstruction of the building in this inflationary age
and debiting the mortgagor with an obligation to pay for the same as an obligation for
redemption,

• Without pressure from the creditor, no one would like to mortgage the only house which is
the only abode on the earth.

Based on the facts of the case

All the courts below on facts held that The mortgage deed being for a period of 99 years was a clog
on the equity of redemption.
• Such findings were returned keeping in view the facts and circumstances of the case and the
financial under which the mortgagor Prakash Singh was placed at the time of execution of
the mortgage deed.

• The appellants were positioned found to be in an advantageous position qua the mortgagor.

• They were also found to be deriving the usufructs of the mortgaged land for a period of over
26 years at the time of filing of the suit on payment of a meager sum of Rs. 7000 only to the
mortgagor.

HELD: The findings of facts returned by the courts below do not require any interference, The
mortgage deed being for a period of 99 years was a clog on the equity of redemption.

In Jayasingh Dnyanu Mhoprekar v Krishna Babaji Patil[i] AIR 1985 SC 1646, it was held by the
Supreme Court that “A mortgagee who has entered into possession of the mortgaged property under
a mortgage will have to give up possession of the property when a suit for redemption is filed
unless he is able to show that the right of redemption has come to an end or that the suit is liable to













be dismissed on some other valid ground. This flows from the principle which is applicable to all
mortgages, namely “Once a mortgage, always a mortgage”

In the case of Madhagonda Ramgonda Patil v Shripal Balwant Rainade[i] AIR 1988 SC 1200,
mortgagee obtained a decree for the sale of the mortgaged property but he was not able to sale the
property, and his heirs and legal representatives were in the possession of the mortgaged property.
A suit for redemption was filed by the mortgagors and it was decreed in their favour by the court
stating that mortgage deed still existed between mortgage and the mortgagee.

In Jayasingh Dnyanu Mhoprekar v Krishna Babaji Patil[i] AIR 1985 SC 1646, it was held by the
Supreme Court that “A mortgagee who has entered into possession of the mortgaged property under
a mortgage will have to give up possession of the property when a suit for redemption is filed
unless he is able to show that the right of redemption has come to an end or that the suit is liable to
be dismissed on some other valid ground. This flows from the principle which is applicable to all
mortgages, namely “Once a mortgage, always a mortgage”

 #CASE LAW 4: SANGAR GAGU DHULA V SHAH LAXMIBEN TEJSHI (AIR 2001 GUJ.
329)

FACTS
The original plaintiffs are heirs of the mortgagor who had mortgaged his property, being a
residential house with appurtenant land, with the defendant-mortgagee. The consideration for the
same was taken by the mortgagor in the sum of Rs. 11000/-. The mortgage-deed specifically
contemplated that this consideration will be repayable by the mortgagor to the mortgagee on the
expiry of 99 years from the date of the transaction (the deed of mortgage), and on the consideration
being repaid, the mortgagor shall be entitled to redemption of the property. Under the terms of the
mortgage, the mortgagee entered into possession of the property, coupled with the right to
reconstruct the same or to make further construction.

Contention: The redemption was sought before the expiry of the stipulated period on the specific
averment and contention that the period of 99 years before which redemption could not be enforced
was an oppressive term and would in law amount to "a clog on the equity of redemption."

ISSUES: (1) Whether a condition in a mortgage-deed which is found by the Court to be a clog on
the equity of redemption is void ab initio or merely voidable at the instance of the suffering party
i.e. the mortgagor?

(2) When a mortgage-deed stipulates a condition that the mortgage is irredeemable for period of 99
years or any such long period, whether the starting point of the period of limitation prescribed by
Art. 61(a) of the Limitation Act, 1963 for filing a suit for redemption would be the date of execution
of the mortgage deed or the date of declaration by the Court that such a condition was a clog on the
equity of redemption?

(3) Whether a suit for a declaration that any such condition is void or voidable (with or without a
prayer for redemption of mortgage) filed after expiry of the period of 30 years from the date of
execution of the mortgage deed would be time barred under Art. 61(a) of the Limitation Act. 1963?

OBSERVATIONS

The Courts have taken a view that the denial of a right to redeem the property, or delaying the
exercise of this right to redeem by an unconscionable period, or creating other contractual barriers
against the exercise of the right to redeem, is not acceptable to the Courts in equity.

It is well settled law that what precisely amounts to a 'clog' is a mixed question of fact and law.
Merely because the mortgagor's right to redeem is delayed or postponed by a long period of time
would not ipso facto amount to a clog. The material aspect which requires emphasis at this stage is
that relief from the specific terms of the mortgage deed (although alleged to be oppressive to the
mortgagor and amounting to a clog) is not granted merely for the asking, or merely by resorting to
the overriding principles of equity, but only when the inequity of the particular clause of the
contract is actually brought home and established by facts and evidence.

PERIOD OF LIMITATION FOR RIGHT TO REDEEM

• Regarding the scope and ambit of Art. 61(a) of the Limitation Act, the period of limitation
commences to run from that point of time "when the right to redeem or to recover
possession accrues."

• For all practical purposes and particularly on the facts of the present case, the right to
recover possession is both incidental and consequential to the rights to redeem the property.

• The offending clause postpones the mortgagor's right to redeem for 99 years. It is only when
the mortgagor desires to redeem the property prior to 99 years that he approaches the Court.

• The mortgagor is conscious of the fact that by contract, he is a party to the postponement of
the right to redeem for 99 years. In order to escape from this clause on the ground that it is
oppressive and unconscionable, he satisfies the Court by leading appropriate and credible
evidence, and satisfies the Court that the oppressive. clause amounts to a clog.

• It is only when the Court finds on facts that this is a clog that the Court strikes down the
offending clause and thereby lifts the clog. It is then and only then, can the mortgagor seek
redemption of the property.

• It can only be this judicial act of the Court which confers on the mortgagor a right to redeem
the property.

• Therefore the period of limitation would commence only from the date of such declaration.
Thus, in a suit filed by the mortgagor for the composite purpose of lifting the clog as also for
redemption, it could not possibly be said that the suit is beyond limitation.

THE OFFENDING CLAUSE IS VOIDABLE

If the offending clause is regarded to be "void ab initio", and regarded to be non-existent from the
very beginning, and the mortgage document be regarded to be free from all stipulations as to when
the property could be redeemed, it would prime facie appear that the right to redeem would accrue
from the day of the mortgage itself. If this was so:
1. The period of limitation would commence from the day of execution of the mortgage deed
itself. However, if such a view were to be accepted, it would amount to conferring upon the
plaintiff a retrospective cause of action, the conferment of which is contrary to all
jurisdictional principles.

















 2. The court frees the mortgagor from an oppressive covenant and on the other hand dismisses
the suit on the ground of limitation.

3. The mortgagor who chooses to suffer the oppressive term (.e. who chooses to sleep over his
right to challenge the offending clause) would only postpone the redemption for the
stipulated period, whereas the vigilant mortgagor who succeeds in his protest against the
offending term, loses his right of redemption for ever.

The court upheld the ratio of Rajgor Bhanji Muljiv Sonbai [(1993) which held that the offending
clause, postponing the mortgagor's right to redeem the property for an unconscionable period is
merely voidable and not void ab initio. The right to redeem the mortgaged property and to seek
possession would accrue in favour of the mortgagor only when the clog on equity of redemption is
removed. In the process it overruled or disregarded rhe ratio of Ramasubramania Mudaliar v
Soorianarayana Iyer (AIR 1977), it was down that once an offending term is held to be invalid as
a clog on redemption, the right to sue for redemption accrues not from the date when the term was
held as invalid, but from the date of the mortgage itself.

HELD: "The right to redeem or to recover possession" would accrue to the mortgagor within the
meaning of Art. 61(a) of the Limitation Act only when the Court lifts the clog on the equity of
redemption. Consequently, limitation would begin to run only from that day, and therefore
necessarily such a suit could not be said to be barred by limitation, provided the suit prays both for
lifting the clog against the equity of redemption and also prays for a decree of redemption of the
mortgage).

In case of Parichhan Mistry v Acchiabar Mistry[i] AIR 1997 SC 456, question as to how can right of
redemption can come to an end was resolved and it was stated by the Supreme Court that “It is true
that a right of redemption under a mortgage deed can come to an end, but only in the manner known
to law. 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.”

CONCLUSION
A mortgagor’s entitlement to redeem his mortgage in order to obtain title back has evolved from
being exercisable within a minuscule window of time into a fundamental right, even existing in the
face of a final court order for foreclosure. Essential to this evolution were the courts of equity, who
recognized that the underlying transaction is at, its heart, the granting of security for the
performance of a debt obligation and not a conditional conveyance upon non-repayment of the
debt. By expanding the single right of redemption, the mortgagor’s right to redeem is now available
prior to, on and subsequent to the “redemption” date as well as following a final order for
foreclosure.