Whether tenant can file appeal against decree of possession passed against landlord?

An important aspect of the matter is that Defendant Nos. 1 and 2 only claimed to be the tenants in the property. They did not claim any ownership rights. It is true that according to them, it was Defendant No. 3 Mustaffa Shah Khan who was the mortgagee of the property but the trial court in the presence of the owner after contest decreed the suit in favour of the Plaintiff and against the Defendants. It specifically held that the Plaintiff had become the full owner of the whole property which stood redeemed and Defendant No. 3 Mustaffa Shah Khan had no share in the property. This finding should have been challenged by Defendant No. 3. This finding cannot be challenged by the tenants.

13. The tenants remain tenants whoever be the landlord/owner. Once Defendant No. 3 Mustaffa Shah Khan had not challenged the decree of the trial court with regard to his title, Defendant Nos. 1 and 2 cannot be allowed to challenge the finding of ownership with which they are not directly concerned. Therefore, the appeal filed by them before the District Judge on the issue as to whether the Plaintiffs had become the full owner of the property or not, was not maintainable. They could have challenged the decree on other grounds but not on this ground.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4610 of 2014

Decided On: 12.09.2019

Mohan Chandra Tamta  Vs.  Ali Ahmad (D) thr L.Rs and Ors.

Hon'ble Judges/Coram:

Deepak Gupta and Aniruddha Bose, JJ.

Citation: (2019) 9 SCC 471

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How to compute limitation if period mentioned in instrument is as per vernacular calender?

 In the case of Roshan Lal Vs. Chaudhari Bashir Ahmad MANU/UP/0069/1924 : AIR 1925 ALLAHABAD 138, the issue was regarding the starting point of limitation. The principal amount was payable within three years and interest was payable every six months according to the Hindi Calender and if any interest remain unpaid the mortgagee would be entitled to enforce his bond without waiting for three years' time. It was observed - The true principle seems to be this. If the starting point is to be calculated, as so many months or so many years from a particular date, that point was be calculated according to the Gregorian calender. On the other hand, if the starting point is otherwise fixed by the stipulation itself, the Court cannot apply section 25 of the Limitation Act.

15. The deed exhibit-27 provides for period of five years as compulsory period for refund of amount and obtaining reconveyance. The subsequent period of five years was discretionary. The terms clearly indicate that the amount was to be repaid by the end of the Phalgun month. It also states that within a period of five years,  [during the period of five years, when there would be no standing crop).

16. Article 61 of the Limitation Act, 1963 reads as follows:

ARTICLE 61

17. The period of fixed five years has been vaguely stated and the specific time is by the end of Phalgun, which is year end of Hindu Calendar. The word  (within five years) clearly indicates that the period provided was not more than five years. It was for the period of five years, but by the end of Phalgun month from the date of document, as rightly suggested by learned Advocate.

18. The reliance in the present case is on the words 'till the end of month of Phalgun.' Ms. Kulkarni placed reliance on section 24 of Limitation Act, which reads as follows:

24. Computation of time mentioned in instruments - All instruments shall for the purposes of this Act be deemed to be made with reference to the Gregorian calender.

The illustration shows that where a promissory note shall execute deed showing native date payable four months after that date, it was held that the period of limitation applicable to a suit on the note runs from the expiration of four months after date computed as per the Gregorian calender year.

19. In the present case, issue is not about the calculation of the period, but determination of the starting point. The right to redemption was existing and accrued to the plaintiff by the end of deed. Right to redeem is co-extensive with right of foreclosure. As per Article 63 of right of foreclosure accrues when the money secured by the mortgage becomes due. In the present case, the money was due and payable within five years at the end of Phalgun month from the year 1964. Thus, the initial payment became due by the end of Phalgun of 1969. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 122 of 2018 and Civil Application No. 1875 of 2018

Decided On: 04.12.2018

 Gulabchand  Vs.  Indubai Pundalik Jape and Ors.

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: 2019(3) MHLJ 829

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Whether mortgagee can take benefit of part performance if there is sale agreement between him and mortgagor?

 The plaintiffs’ suit for redemption of
mortgage of four properties was initially decreed
by the learned trial Court. In appeal, the decree
was partially reversed insofar as the two items of
properties are concerned. The said two items are
properties were the subject matter of sale
agreements between the mortgagor and the mortgagee
pursuant whereto on full payment of the agreed
amount by the mortgagee to the mortgagor the
mortgagee was allowed to continue to remain in
possession under the sale agreements. It is in

these circumstances that the First Appellate Court
and the High Court took the view that the
plaintiffs’ suit insofar as the redemption of the
aforesaid two items of properties are concerned
could not have been decreed in view of the
provision of Section 53A of the Transfer of
Property Act, 1882.

4. The plaintiffs’ suit for redemption in
the face of the terms of the sale agreements
insofar as the two items of properties are
concerned, could not have been decreed in view of
Section 53A of the Transfer of Property Act, 1882.
The plaintiffs could have but did not not bring an
action for declaration of title and recovery of
possession on the basis of title. In such
circumstances “the fault” on the part of the
defendants to bring a suit for specific
performance of the sale agreements to enable the
transaction of agreement to sell to fructify into
a valid sale cannot defeat their right under

Section 53A of the Transfer of Property Act, 1882.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S).566 OF 2016

RAMESH CHAND  Vs  NAND LAL

Dated:APRIL 24, 2018.

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Whether Mortgagor has right to redeem mortgage even after sale of mortgaged property

 It would be necessary to examine as to when the right of the petitioner in the present case could be said to be extinguished by application of Section 60 of the Transfer of Property Act, 1882. In the case of Allokam Peddabbayya .vs. Allahabad Bank - MANU/SC/0700/2017 : (2017) 8 S.C.C. 272, the Hon'ble Supreme Court has taken into consideration Section 60 and proviso thereto of the Transfer of Property Act, 1882 and earlier judgments on the said provision have been taken into consideration. In the said judgment, the Hon'ble Supreme Court has concluded as follows:-

"22. In Mhadagonda Ramgonda Patil it was observed that the mortgagor has a right of redemption even after sale has taken place pursuant to the final decree, but before the confirmation of sale.

23. Therefore, the crucial aspect even under the said provision is "confirmation of sale". The mortgagor has a right of redemption even after sale has taken place but before confirmation of sale. In the present case, the fact remains that there was no confirmation of sale in favour of respondent no. 5 under the provisions of the said Act and Rules particularly sub-rule (14) of Rules 107 of the said Rules.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 2564 of 2016

Decided On: 12.09.2018

Aniruddha Vs. The Divisional Joint Registrar Co-operative Societies, Amravati and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(2) MHLJ 478

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Good article on subrogation( Transfer of property Act)

S 92 OF TRANSFER OF PROPERTY ACT -SUBROGATION

Subrogation is a Roman term meaning “substitution”. It is the right of person to stand in the place of a creditor. When a mortgagee transfers his mortgage debt, his assignee becomes vested with all his rights that is his assignee is substituted or subrogated in the place of mortgagee. In order to be entitled to subrogation, a person must pay off the entire amount of a prior mortgage, because subrogation takes place by redemption,and unless there is redemption, there can be no subrogation. Partial payment of mortgage-debt can not give rise to a claim for a partial subrogation.

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Whether right to redemption exists after issuance of sale certificate to auction purchaser?

 In Mhadagonda Ramgonda Patil (supra), it was observed that the mortgagor has a right of redemption even after sale has taken place pursuant to the final decree, but before the confirmation of sale.

23. The aforesaid discussion leads to the conclusion that the Plaintiffs lost the right to sue for redemption of the mortgaged property by virtue of the proviso to Section 60 of the Act, no sooner that the mortgaged property was put to auction sale in a suit for foreclosure and sale certificate was issued in favour of Defendant No. 2. There remained no property mortgaged to be redeemed. The right to redemption could not be claimed in the abstract.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2763-2764 of 2008

Decided On: 19.06.2017

 Allokam Peddabbayya and Ors.

Vs.

 Allahabad Bank and Ors.

Hon'ble Judges/Coram:

Ranjan Gogoi and Navin Sinha, JJ.

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When plaintiff is not entitled to get decree for specific performance of contract?

Section 20 of Specific Relief Act, 1963, provides that the
jurisdiction to decree specific performance is discretionary,
and the court is not bound to grant such relief merely because
it is lawful to do so. However, the discretion of the court is not
arbitrary but sound and reasonable, guided by judicial
principles. Sub-section (2) of Section 20 of the Act provides
the three situations in which the court may exercise discretion
not to decree specific performance. One of such situation is
contained in clause (a) of sub-section (2) of the Section which
provides that where the terms of the contract or the conduct of
the parties at the time of entering into the contract or the
other circumstances under which the contract was entered
into or such that the contract though not voidable, gives the
plaintiff an unfair advantage over the defendant, the decree of
specific performance need not be passed. It is pertinent to
mention here that in the present case, though execution of
agreement dated 21.06.2004 between the parties is proved,
but it is no where pleaded or proved by the plaintiff that he got
redeemed the mortgaged land in favour of defendant No. 2 in
terms of the agreement, nor is it specifically pleaded that he
was ready and willing to get the property redeemed from the
mortgage.
 In the above facts and circumstances of the case and the
judicial principle discussed above, we are of the opinion that it
is a fit case where instead of granting decree of specific
performance, the plaintiff can be compensated by directing the
appellant to pay a reasonable and sufficient amount to him.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURSIDCITION
CIVIL APPEAL NO. 8427 OF 2014

Ramesh Chand Vs  Asruddin (Dead)

 Dated:October 06, 2015.

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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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Whether mortgaged property can be redeemed on payment of a part of mortgage money?

Section 60 clearly provides that at any time after the
principal money has become due, the mortgagor has a right to seek
redemption of the mortgaged property on him paying or tendering the
mortgage money. If the mortgage money is paid/tendered as required
under section 60, the mortgagee is required (a) to deliver to the
mortgagor the mortgage deed and all documents relating to the
mortgaged property which are in the possession or power of the
mortgagee; (b) where the mortgagee is in possession of the mortgaged
property, to deliver possession thereof to the mortgagor; and (c) at the

cost of the mortgagor, either to re-transfer the mortgaged property to
him or to such third person as he may direct, or to execute and (where
the mortgage has been effected by a registered instrument) to have
registered, an acknowledgment in writing that any right in derogation
of his interest transferred to the mortgagee, has been extinguished.
The said section further provides that nothing therein shall entitle a
person interested in a share only of the mortgaged property to redeem
his own share only, on payment of a proportionate part of the amount
remaining due on the mortgage, except 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. This section
therefore clearly provides that a mortgaged property cannot be
redeemed on payment of a part of the mortgage money. If the
mortgaged property has to be redeemed in terms of section 60 of the
Transfer of Property Act, 1882, the entire mortgage money has to be
tendered in terms of section 60, before redemption can be ordered.
The only exception is when a mortgagee has acquired, in whole or in
part, the share of a mortgagor. We find that the DRT, Pune has
completely lost sight of this fundamental principle enshrined in

section 60 of the Transfer of Property Act, 1882. We therefore find
that the DRAT, Mumbai was fully justified in setting aside the order
passed by the DRT, Pune.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2714 OF 2015

Mr Dipak Digambar Naik  v/s Bank of Maharashtra and another

CORAM: V.M. KANADE &
 B.P. COLABAWALLA JJ.

Pronounced on : 10th August, 2015

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Whether son is entitled to redeem property mortgaged by his father?

IN THE HIGH COURT OF NAGPUR

Decided On: 31.10.1932

 Ananda Pandurang Vs. Uttamrao

The son is accordingly, as a member of the joint family in which the shares are of necessity undetermined until partition, entitled to redeem as much property as his father could have redeemed, that is to say, the whole. Also Section 60, T. P. Act, is no bar to the owner of the equity for redeeming the whole mortgage,

Equivalent Citation: AIR1933Nag44(2)

Coram;

Grille, A.J.C.

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Whether right of tenants of mortgagees are protected after redemption of mortgage?

 On the second aspect of the question whether the right of the tenants of the mortgagees are protected after the redemption of mortgage, reliance was placed by the First Appellate Court on the decision of the Full Bench of the Gujarat High Court inLalji Purshottam v. Thacker Madhavji Meghaji. There urban immovable property was mortgaged with possession, mortgagee creating lease during the subsistence of the mortgage. The question was whether after redemption of mortgage such lease is binding on the mortgagor. It was held that Section 76(a) of the Transfer of Property Act would not apply to such cases. There must be express words showing an intention if tenancy was to be created beyond the term of the mortgage. Mere reference that mortgagee is entitled to lease property does not create a binding tenancy on the mortgagor. After the redemption of the mortgage the relationship of landlord and tenant does not exist. Such tenant, therefore, does not get any protection under Section 12 of the Bombay Rent Control Act, it was held. The Gujarat High Court had referred to several decisions of this Court. In Mahabir Gope v. Harbans Narain Singh which was a decision dealing with a lease created by a mortgagee with possession under the Bihar Tenancy Act, this Court reiterated that the general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has. A mortgagee cannot, therefore, create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee. 

Supreme Court of India

Thakar Singh (D) By Lrs. & Anr vs Mula Singh(Dead) Thr.Lr. & Ors on 14 October, 2014

Bench: Dipak Misra, Rohinton Fali Nariman

Citation;(2015) 5 SCC 209

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