When right of mortgagor to redeem mortgage can not be extinguished by execution of agreement of sale?

 For the many reasons recorded above, it is held that the sale
agreement is hit by section 29 of the Contract Act for being vague,
ambiguous and uncertain. It was never intended by mortgagor to sell her
property to the mortgagee and was an extension of the mortgage deed in
existence prior thereto. It matters little if the term "agreement to sell" or
"sale deed" in incorporated in the Exhibited document. The sale agreement
is dated "2.6.1980" while the date of registration of sale deed was fixed as
"13.3.1980". What can any person of reasonable intelligence make of this?
Parties could not go back in time to execute the sale deed when the date of
execution was prior to the date of the agreement. Plaintiffs did not put the
defendant to notice of change by extension of the period of execution of
sale deed by a separate contract or a corrigendum signed by mutual consent
to go to office of the Sub Registrar for registration of the conveyance deed.
The lacuna was fatal enough and tended to remove the base of a suit for
specific performance which depends by the nature of things on future target
dates agreed upon and compliances made to fructify a contract into a sale
deed or a decree for execution of an agreement when defendant defaulted in
performance of his part of the contract or within reasonable time of it where
time is not the essence of the contract. The relief in any case is discretionary
and an order will not be passed only because it is lawful to do so. Besides,
the overarching principle against clogs in redemption found in section 60 of
the Transfer of Property Act, 1882 which contains the exception "Provided
that the right conferred by this section has not been extinguished by act of
the parties" but the proviso did not apply when ambiguity did not dictate an
extinguishment of a right to redemption by any of the material acts of theoriginal defendant in relation to the plaintiffs. On a comprehensive reading
between the lines of the agreement dated June 2, 1980 in the context of the
existing relationship of mortgagor and mortgagee between the parties and
for the variety of reasons recorded above I am unable to persuade myself to
commend the view that the right of redemption was "extinguished" by act of
parties irrevocably in the face inter alia of the brooding presence of
condition # 3 in the agreement. In any case the suit document was one sided
and not ad idem and thumb impressions of the plaintiff on the document are
not sufficient to conclude a contract based on consent of both the parties
that it should be treated as an intention to transfer property. Still murkier is
the condition lurking at the end of the deed which recites: "Hen ce, this sale
 deed ha s been got scribed so that it may serve as an authority at the time ofneed". If the document pretended to act in replacement of a sale deed or a
“need” [to do what?]it was not registered and then what was the legal basis
of effecting mutation of the suit property in the name of the plaintiffs whenproperty had not been legally passed on, is not clearly discernible amongst
the evidence oral and documentary on record when read as a whole. In any
event a revenue entry in the mutation confers no title rights. Only a
cumulative understanding of the totality of the facts and circumstances
presented can resolve the controversy logically and holistically and in this
pursuit allowance must rest finally in the court of second instance as the
final court on law and fact and for this Court to act in support of the
appellate decree even if it does so ex aequo et bono, that is, for a decision
based on what is fair and just. It is towards this salutary end the above

discussion proceeds to a culmination.
 For the variety of reasons recorded above, the appeal is accepted,
the appellate decree is set aside as not legally sustainable and that of the
trial court is restored being a just and proper adjudication of the dispute.
The suit for possession by way of specific performance is dismissed with
costs in all the courts. Refund adjustments, if any, would remain open to

redemption proceedings, if and when taken. 

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
 RSA No. 2256 of 1987 (O&M)
 Date of Decision: 15.05.2015

Bachan Kaur through her LRs
Sadhu Singh and others
... Appellants
 Versus
Kaka Singh and others ... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Citation: AIR 2016(NOC)291 P&H

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