Search Results Page

Search Results

1 - 7 of 7 (0.17 seconds)
Sita Ram Prasad vs Mahadeo Rai And Ors. on 27 February, 1980 cites

Mst. Suraj Dei vs Mst. Gulab Dei on 11 October, 1954

10. A Full Bench of this Court in Suraj Prasad v. Mst. Aguta Devi, (AIR 1959 Pat 153), had the occasion to consider the expression 'equity of redemption, in the background of whether it was tangible or intangible immoveable property. On reference to the Dictionary meaning of the word 'tangible' according to which it was something that can be touched like a material object, it was observed that when an owner sells his immoveable property which is subject to a simple or usufructuary mortgage, it is the sale of a tangible immovable property and not that of merely any intangible right. This Court further held that the expression 'equity of redemption' which is an expression borrowed from English law, although which has not been used in the Indian Law, means a right which the mortgagor has been given under Section 60 of tha Transfer of Property Act, namely, the right to redeem. This 'right to redeem' cannot be said to be a substitute for 'equity of redemption' because the latter expression imports that the ownership, in law, is vested in someone other than the holder of the 'equity of redemption' and that a mortgage, according to Section 58 of the Transfer of Property Act, was simply a tranfer of interest in the immovable property while the ownership still remained with the mortgagors unlike a sale, as defined in Section 54 of the Transfer of Property Act. In view of this authoritative decision, Mr. Singh did not press his contention very seriously. In any view of the matter, it cannot be disputed as a proposition of law that the mortgagors were still owners of the bharna land and they were entitled to allot the same in the partition which admittedly took place amongst them orally. The Court of appeal below has recorded a clear finding that the appellant-defendant No. 1 failed to prove his case that the bharna land was allotted to the share of his vendors. On the other hand, a clear (finding) has been recorded, as already noticed, that it was allotted to the share of Brijnandan Sukul. It is also well established that under the Hindu law, there can be an oral partition and once a partition is alleged, then the law will presume, unless something is proved to the contrary, that there was a complete partition between the members of the family. The legal position of the mortgaged properties thus having been clearly understood, as above, I have got no manner of doubt that the parties were competent in law to deal with the bharna lands at the time of oral partition like any other joint family property and the allotment of the said land to the share of any of the coparceners lawfully made the allottee entitled to redeem the mortgage as a whole and thereafter to become absolute owner of the said property. The equity of redemption or for that matter the right to redeem, is capable of being assigned or transferred, cannot be disputed in law. Rather, the defendant himself is the purchaser of the same right. Ramjoti Kuer was, therefore, duly competent in law to confer upon her transferees, namely, the plaintiffs, all the right, title and interest of the mortgagors with respect to the bharna land, which was subject to the encumbrance. The plaintiffs, therefore, having acquired the said right under the deed of sale (Ext. 8) have been rightly held to be entitled to the decree for redemption as held by the court of appeal below,
Allahabad High Court Cites 8 - Cited by 12 - V Bhargava - Full Document
1