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Civil · Reportable judgment

Leela Agrawal vs Sarkar & Anr.

Court
Supreme Court of India
Date
19 November 2024
Case No.
Civil Appeal No(s).12538-12539 of 2024
Result
Allowed
Bench
Vikram Nath, Prasanna Bhalachandra Varale
Citation
[2024] 11 S.C.R. 1130 : 2024 INSC 946
Acts & Sections
Chhattisgarh Land Revenue Code, 1959 TP Act Specific Relief Act, 1963
Supreme Court Reports [2024] 11 S.C.R. 1130 : 2024 INSC 946
Issue for consideration
Whether the mortgage deed dated 17.10.1990 constitutes a mortgage by conditional sale under Section 58(c) of the Transfer of Property Act, 1882 and whether the plaintiff is entitled to redeem the mortgage.
Headnote

Transfer of Property Act, 1882 – s.58(c) – Mortgage by conditional sale – The dispute centers around a piece of land and the plaintiff-respondent is the undisputed owner of this land – In 1990, the plaintiff in need of funds approached the defendant-appellant and mortgaged the suit land – In pursuant thereto, a mortgage deed dated 17.10.1990 was executed and registered – It was orally agreed that plaintiff could redeem the mortgage within three years – Thereafter, in 1993, the plaintiff attempted to redeem the mortgage – However, the defendant refused to accept the payment, asserting that, according to the terms of the mortgage deed, the mortgage had transformed into an absolute sale due to the plaintiff's failure to repay the amount within the stipulated time – Correctness: Held: The ingredients of a mortgage by conditional sale u/s.58(c) of the Act are as follows: (i) The mortgagor ostensibly sells the mortgaged property to the mortgagee – (ii) Such ostensible sale is subject to any one of the following conditions: On default of payment of the mortgage money on a certain date, the sale shall become absolute; or on payment of the mortgage-money on a certain date, the sale shall become void; or on payment of the mortgage-money on a certain date, the buyer shall re-transfer the property to the seller – (iii) The condition should be embodied in the same document which effects or purports to effect the sale – In the instant case, the mortgage deed indicates that the mortgagor agreed to mortgage her land to the mortgagee for a sum of ₹75,000 due to personal financial needs, so the first condition i.e. Ostensible Sale of the Property is satisfied – The mortgage deed contains explicit condition that upon default in payment within the stipulated period, the sale would become absolute, satisfying the second ingredient under the first condition specified in s.58(c) of the Act that on default of payment on a certain date, the sale shall become absolute – As far as the last ingredient is concerned, as required under the proviso of s.58(c), the condition regarding the conversion of the mortgage into an absolute sale upon default is embodied within the same document i.e., the mortgage deed dated 17.10.1990 – This is evident from the clauses of the mortgage deed – Therefore, it can be concluded that all the essential ingredients of a mortgage by conditional sale u/s.58(c) of the Act are satisfied in the present case as there was an ostensible sale of the property by the mortgagor to the mortgagee and the sale was conditional, stipulating that upon default of payment within three years, the sale would become absolute as well as that the condition was embodied in the same document, i.e. the mortgage deed, that effected the transaction – Also, the permissive possession by the plaintiff in the present case does not alter the character of the transaction – The mortgage deed dated 17.10.1990 constitutes a mortgage by conditional sale u/s.58(c) of the Act – The condition converting the mortgage into an absolute sale upon default is valid and enforceable. [Paras 14, 15, 16, 17, 18, 21, 26]

Keywords: Mortgage Deed · Mortgage by Conditional Sale · Ostensible Sale · Redemption · Clog on Equity of Redemption · Mortgagor · Mortgagee · Permissive Possession · Intention of Parties · Default of Payment · Absolute Sale · Re-transfer · Mortgage-Money · Nature of Possession · Terms of the Mortgage Deed

As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.

Full Judgment Text

Judgment Vikram Nath, J. 1. Leave granted. 2. These appeals challenge the judgment and order dated 06.09.2018 passed by the High Court of Chhattisgarh at Bilaspur in First Appeal No. 28 of 2004, as well as the subsequent order dated 30.01.2019 in Review Petition No. 222 of 2018. The High Court dismissed both the appeal and the review petition filed by the appellant (defendant), thereby affirming the decree passed by the Additional District Judge, Manendragarh, District Korea, in Civil Suit No. 26-A/2001. 3. For clarity, the parties will be referred to by their original status in the suit.
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