Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.1 Redemption of the portion of mortgaged property in this section does not entitle a person interested in a share only of the mortgaged property to redeem his desired share only, on payment of a proportionate amount for the part and the amount due on the mortgage.
Exception is only there where a mortgagee or if there are more mortgagees has acquired in whole or in part of the share of mortgagor.
The above-mentioned statement state that once a mortgage deed is always a mortgage deed and it cannot be changed. It will always remain a mortgage deed and revision or change can be done but it should not affect the right of redemption. It was held in the case of Knocks v. Roulds 9, that the right of
redemption on a mortgage can't be filled by any action that makes it non-redeemable. If any changes made at that point it will invalid and void. In the event that any condition is forced by the party, at that point it will likewise be void. The court stated that the deed to make a mortgage and such a contract would remain a mortgage contract. In any case, the constraint of the right of redemption after mortgage by a contract won't be considered as resistance.
It is to make reference here that the transactional state of converting mortgage into sale deed is likewise white for the explanation of opposition on the right of redemption. A condition that in case of non- payment of any installment of mortgage money the mortgagee will hold the mortgaged property as a lease, in the mortgage deed the following is considered to be illicit and ineffective. At all the goal is that contract and the right of redemption of mortgage are co-broad whether the redemption has been noticed or not.
On account of Vishnu Kaya versus Vishnu Maya10, it has been held by the Sikkim High Court that in the event that any transaction is a transaction of mortgage, at that point based on the value the right of redemption will consistently be vested on it. It is likewise the prerequisite of the guideline of common equity and the principle of natural justice.
The phrase once a mortgagee is always a mortgagee, the following phrase means that the mortgagee would always remain a mortgagee and never become an owner. He cannot transfer the property rights to a third party as he does not have the authority to pass on the benefits of the property. The phrase is a part of equity of fairness.11 To ensure no exploitation takes place the courts developed this phrase.
Accordingly, a mortgage deed establishes two things, one being the right of the creditor which is limited up to his interest and other being deducting the residuary interest of the creditor from it. In a mortgage deed the right of redemption is always there and cannot be written off unless the debtor fails to pay the amount or he wishes to do so. The right is equitable to right to redeem.12
The premise of this doctrine lies in the practice of value, equity, and a good conscience and is applicable to areas where acts are not applicable. On reasonable scrutiny of the functions of a mortgage, it is seen in the majority of the cases that the mortgagor goes into such an agreement as a result of some monetary difficulty. The law perceives the power of the predominant party to embed provisos that will serve his own advantages by making obstacles on the right of redemption13 and the same philosophy was also taken into consideration in U. Nilan v. Kannayyan (Dead) Through Lrs.14
Conclusion
The right of redemption of the mortgagor is the inherent right provided in the mortgage deed. On looking at the various aspects of the mortgage deed, the right of redemption forms a primary part of the mortgage deed. Furthermore, the right of redemption is applicable only after the mortgagor has performed the rights and duties assigned to them.
A mortgage deed cannot be altered and made a sale deed, neither the mortgagee becomes the owner of the property as the same is against basic principle of the mortgage deed. Thus, the right of redemption of a mortgagor is secured by the court and provides them protection against exploitation caused to them. Furthermore Section 60 of TPA aims to secure the interest of the mortgagor and also it provides the essentials of the mortgage deed and the movement of the property.