Case Note & Summary
The case involves a second appeal before the Bombay High Court arising from a suit for redemption of a mortgage. The original plaintiff, Respondent No.1, claimed to be the wife of Jinnappa Rama Khot, who had mortgaged the suit property by a deed of conditional sale dated 15th April 1971 in favor of Respondent No.2 (original Defendant No.1). The mortgage was to be redeemed on or before 15th April 1976. The appellants, original Defendants Nos.2 to 8, were the daughters of Jinnappa Rama Khot. The trial court and the first appellate court held that the appellants were excluded from the right to redeem the mortgage. The appellants challenged this finding in the second appeal. The substantial question of law framed at the time of admission was whether the appellants were wrongly held to be excluded from the right to redeem along with Respondent No.1 or to her exclusion. The High Court, after hearing the parties, allowed the appeal and set aside the impugned judgments, holding that the appellants were entitled to redeem the property along with Respondent No.1.
Headnote
A) Mortgage Law - Right of Redemption - Co-mortgagors - Exclusion from Redemption - Transfer of Property Act, 1882, Section 60 - The substantial question of law was whether the appellants, as co-mortgagors, were wrongly excluded from the right to redeem the mortgage property. The court considered the terms of the mortgage deed and the status of the appellants as heirs of the original mortgagor. Held that the appellants were entitled to redeem the property along with Respondent No.1, and the lower courts erred in excluding them. (Paras 1-2)
Issue of Consideration
Whether the appellants were wrongly held to be excluded from the right to redeem the mortgage property along with Respondent No.1 or to her exclusion.
Final Decision
The appeal is allowed. The impugned judgments and decrees are set aside. The suit is decreed in terms of the preliminary decree for redemption with a declaration that the appellants are entitled to redeem the mortgage property along with Respondent No.1.
Law Points
- Right of redemption
- Mortgage by conditional sale
- Co-mortgagors
- Exclusion from redemption
- Substantial question of law
