With the help of decided cases: Discuss the law relating to Redemption of portion of mortgaged property.

Question: With the help of decided cases: discuss the law relating to Redemption of portion of mortgaged property. [HPJS 2016]

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Answer

Section 60 of the Transfer of Property Act grants the mortgagor the right to redeem the property by tendering the amount due to the mortgagee. The last paragraph of section 60 provides that nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his share only on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.

The principle of the paragraph is clear enough. The mortgage security is indivisible and partial redemption is not allowed. A part-owner of the interest of the mortgagor can certainly redeem the whole mortgage, but cannot redeem his share only. The reason for this rule is that the disintegration of the mortgage security would result in great injustice to the mortgagee.

A suit for redemption is a suit to enforce the right to redeem. Such a suit can be filed by a mortgagor or by persons mentioned in Section 91 of the Transfer of Property Act. The mortgagor of a share is only to redeem the whole mortgage and therefore, partial redemption is not possible in law. As observed by the Hon’ble High Court of Madras in the case of Thiagasambandham Pillai And Anr. v. Savithiri Ammal And Anr., (1999) 2 MLJ 264, if the integrity of the mortgage is broken, partial redemption can be allowed.

Normally, a suit for partial redemption will only lie when the mortgagee has acquired a share in the equity of redemption. But, there a share is acquired not by the mortgagee, but by a third person. Of course merely because the person who acquired the half share in the mortgage security, happens to be the wife of the assignee-mortgagee, that will not make it a case of acquisition of the share by the mortgagee. The acquisition of the share in this case is only by a third party though she may be related to the assignee-mortgagee. Therefore, the question of suing for partial redemption cannot normally arise.