RIGHT OF REDEMPTION
Right of redemption as per section 60 of the Transfer of Property Act refers to the right of the mortgagor to redeem his property from the mortgagee after paying off the mortgaged debt. Mortgagee holds the property as the security against the debt taken by the mortgagor. This is the right of a mortgagor to get back his property, free from every charge after fulfilling his duties.
A mortgage lender is legally entitled to the mortgaged property until the principal money has been paid off and there is no foreclosure by the tribunal. He has the authority to mortgaged land, free of any conditions put on him unless the contrary is stipulated. It is the mortgagor’s indefeasible right that cannot be taken from him by law.
A mortgage is not divisible. If a person is interested in the part of the property, he cannot redeem that part by paying off the proportionate amount due on the mortgaged. In a condition, where mortgagee holds the part of the mortgage, the mortgagor can redeem that part by paying off the part of the debt.
As per section 61 of the Transfer of Property Act “A mortgagor who has executed two or more mortgages in favour of the same mortgagee shall, in the absence of a contract to the contrary, when the principal money of any two or more of the mortgages has become due, be entitled to redeem any one mortgage separately, or any two or more of such mortgages together.” Hence, in the case of multiple mortgages, it is on the party to decide whether he wants to redeem the property as a whole or separately.
Clog on redemption:
Clog means to prevent something from taking place. Clog on redemption means to debar the mortgagor from redeeming his mortgage by paying back his mortgaged debt. Right to redemption is an absolute and unfettered right, no condition can prevent the mortgagor to exercise this right and if any condition hinders then it will be considered null and void. Clog on redemption relates the transactions between the mortgagor and mortgagee during the execution of the mortgage.
In the case of Shankar v. Yeshwant, the plaintiff had mortgaged his land to the defendant, it was written in the mortgage deed that in the case of default of redemption after twenty years, Defendant would be the owner of the half of the land. Even after four years of the stipulated time, the defendant was holding the mortgage. Plaintiff executed the deed according to which after twenty years, Defendant would have only half of the land and rest half will be free. The court held that it was the terms of the agreement and hence it’s valid. The court ordered the defendant to release half of the land.
Similarly, in the case of Pomal Govindji v. Vrajal Purohit, the Hon’ble Supreme Court of India said that the long term of the payment of debt will not amount to the clog on redemption. Although, very long term of the period along with certain conditions may amount to the clog on redemption.