Case Note & Summary
The appellant (original plaintiff) filed a suit for redemption of mortgage of a shop in Borsad, Anand. The plaintiff had executed two mortgage by conditional sale deeds in 1991 and 1996, receiving Rs.15,000 each, and a third agreement in 2001 extending the time for reconveyance to 30 years. The trial court decreed the suit, and the appellate court confirmed. The defendant filed a second appeal under Section 100 CPC. The High Court framed substantial questions of law regarding perversity and misreading of evidence. The Court found that the lower courts had ignored the recitals in the documents and misconstrued the nature of the transaction. It held that the mortgage by conditional sale was not a sale but a mortgage, and the right to redeem continued. The third agreement extending time was valid and the suit was within limitation. The High Court allowed the appeal, set aside the concurrent judgments, and remanded the matter for fresh consideration.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - Concurrent findings can be interfered with if they are perverse or based on misreading of evidence - The High Court held that the courts below ignored material evidence and misread the documents, thereby vitiating the findings (Paras 10-15). B) Transfer of Property - Mortgage by Conditional Sale - Right to Redeem - Section 60 Transfer of Property Act, 1882 - The right to redeem a mortgage is an incident of the mortgage and subsists until the mortgage is extinguished by act of parties or by decree of court - Mere expiry of the stipulated period for reconveyance does not extinguish the right to redeem (Paras 16-20). C) Limitation - Suit for Redemption - Article 61(a) Limitation Act, 1963 - The period of limitation for a suit to redeem a mortgage is 30 years from the date when the right to redeem accrues - The third agreement dated 09.07.2001 extending the time for reconveyance to 30 years was held to be valid and binding, and the suit filed in 2007 was within limitation (Paras 21-25).
Issue of Consideration
Whether the concurrent findings of the courts below are perverse and suffer from misreading of evidence, and whether the plaintiff's suit for redemption of mortgage is maintainable despite the expiry of the stipulated period for reconveyance.
Final Decision
Second Appeal allowed. The judgments and decrees of the courts below are set aside. The matter is remanded to the trial court for fresh decision in accordance with law, after giving opportunity to both parties to lead evidence.
Law Points
- Mortgage by conditional sale
- right to redeem
- Section 60 Transfer of Property Act
- 1882
- Section 100 CPC
- substantial question of law
- concurrent findings
- perversity
- misreading of evidence
- limitation for redemption
- extension of time by agreement
