Can the right of equity of redemption be validly curtailed under the Transfer of Property Act? Explain.

The equity of redemption is a fundamental right of the mortgagor under the Transfer of Property Act, 1882, particularly protected by Section 60. It allows the mortgagor to reclaim the mortgaged property by repaying the debt, even after the due date, until the property is legally sold or foreclosed. The question is whether this right can be curtailed by contract or conduct.

Legal Position Under Section 60 TPA

“At any time after the principal money has become due, the mortgagor has a right…to redeem the mortgaged property... provided that this right has not been extinguished by act of the parties or by a decree of a Court.”

• The right of redemption is statutory, and it cannot be taken away by any agreement made at the time of mortgage.

• This means no clause in the mortgage deed can validly prevent the mortgagor from redeeming the property.

Doctrine: “Once a Mortgage, Always a Mortgage”

This equitable doctrine implies that:

A mortgage is always redeemable, and any provision inserted to prevent redemption is void as it constitutes a clog on the equity of redemption.

When Can the Right Be Extinguished?

The right to redeem can only be extinguished in two ways:

1. By act of parties – e.g., a registered sale or release deed executed after the mortgage.

2. By decree of a competent court – e.g., foreclosure or sale decree under Order 34 CPC.

Unilateral action by the mortgagee or mere passage of time cannot curtail this right.

Case Laws

• K. Saraswathy v. P.S.S. Somasundaram Chettiar (1989)
  The Supreme Court held that even long possession by the mortgagee does not extinguish the mortgagor’s right to redeem.

• Narandas Karsondas v. S.A. Kamtam (1977 AIR 774)
  It was held that the right of redemption continues until the mortgagor's interest is legally conveyed by a registered sale deed.

• Pomal Kanji Govindji v. Vrajlal Karsandas Purohit (1989)
  The Court reiterated that any provision that prevents redemption is a clog on equity of redemption and is void.

Conclusion

Under the Transfer of Property Act, the right of equity of redemption cannot be validly curtailed by any contractual stipulation or conduct unless it is extinguished by a court decree or a lawful act of parties. Any condition in a mortgage deed that impedes redemption is treated as a clog and is void. Thus, the right to redeem is inalienable and always enforceable, affirming the maxim:

“Once a mortgage, always a mortgage, and therefore always redeemable.”

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