Section 53 of Transfer of Property Act
Redemption of Mortgage and Clog on Redemption
1. Redemption of Mortgage
Meaning
Redemption means the right of the mortgagor (borrower) to reclaim his property once the mortgage debt has been repaid.
It is based on the maxim: “Once a mortgage, always a mortgage.”
(i.e., a mortgage is only a security for debt; once the debt is cleared, the property must return to the owner).
Statutory Basis
Section 60 of the TPA, 1882:
“At any time after the principal money has become due, the mortgagor has the right, on payment or tender, to require the mortgagee to deliver possession and documents, and to reconvey the property.”
Essentials
The mortgage must exist.
The principal amount must be due.
The mortgagor must pay or tender the debt.
Mortgagee must then return the property/documents.
Case Law
Kreglinger v. New Patagonia Meat & Cold Storage Co. (1914 AC 25)
Held: Mortgage is only a security for loan; once loan is repaid, the mortgagor gets back full ownership.
Narandas Karsondas v. S.A. Kamtam (1977) 3 SCC 247
Held: The right of redemption is a statutory right and cannot be taken away except as per law.
2. Clog on Redemption
Meaning
Any condition in the mortgage deed that prevents or makes it difficult for the mortgagor to redeem his property is called a clog on redemption.
It is void, because right of redemption is inseparable from a mortgage.
Examples of Clog
A condition that the mortgagor cannot redeem at all.
A condition that redemption is allowed only after an unreasonably long time.
A condition that even after repayment, part of the property remains with mortgagee.
Principle
No fetter or restriction can be put on the mortgagor’s right to redeem.
Equity does not allow mortgagee to convert a mortgage into an absolute sale or permanent advantage.
Case Law
Santley v. Wilde (1899 2 Ch 474)
Held: A mortgage is always redeemable. Any provision preventing redemption is a clog.
Nooruddin v. Kallyanmal (AIR 1927 PC 125)
Held: A condition making mortgage irredeemable is void.
Pomal Kanji Govindji v. Vrajlal Karsandas Purohit (1989) 1 SCC 458
Held: Courts must be vigilant against oppressive and unconscionable terms that operate as a clog.
Kreglinger’s case (1914 AC 25)
Distinguished between a valid collateral advantage (e.g., separate agreement to do business) and a clog. Collateral advantage is valid only if it does not prevent redemption.
3. Collateral Advantage vs. Clog
A collateral advantage is an additional benefit given to mortgagee (like right to purchase goods). It is valid if:
Not unfair or unconscionable.
Not in the nature of a penalty.
Does not prevent redemption.
If it restrains redemption → it becomes a clog.
4. Key Principles for Exams
Right of redemption is statutory (Sec. 60, TPA).
Clog on redemption is void – based on equity and fairness.
“Once a mortgage, always a mortgage.”
Courts strike down oppressive terms but may uphold fair collateral advantages.
5. Conclusion
The right of redemption is the heart of the law of mortgages. Any condition that takes away or restricts this right is a clog on redemption, and hence void. Judicial pronouncements like Kreglinger, Narandas Karsondas, and Pomal Kanji reinforce the principle that a mortgage is only a security, never a transfer of ownership.
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