Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Transfer of Property Act |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Transfer of Property Act, 1882:Mortgage of suit property with tenant - Mortgage deed providing that on redemption of mortgage, mortgagee would become tenant of the mortgagor automatically as he was, prior to mortgage - Claim for possession by vendee of the mortgaged property on expiry of mortgage period - Held: Not maintainable as mortgagee is reverted as tenant - Vendee to approach appropriate forum for eviction of tenant. Pre-emption - Mortgage of property - Another agreement whereby mortgagor undertaking to give first option to purchase, to mortgagee - Held: It operates as clog on right of redemption of vendee from the mortgagor.The suit property was mortgaged under a registered mortgage deed dated 19.3.1980 to the lessee-mortgagee. The mortgage deed specifically mentioned that on redemption of the mortgage, the mortgagee would become the lessee of the mortgagor automatically as he was prior to the mortgage. After the mortgage deed, a partial release deed was signed between the parties on 21.9.1981 by which mortgagor had undertaken to give the first option to purchase, to the mortgagee.On demand of redemption, mortgagee refused and the purchaser of the property filed the suit for redemption of mortgage and for possession of the mortgaged property.During pendency of the suit, the purchaser filed application under O.12 r.6 CPC for decree on the basis of admission by the mortgagee that mortgage was for 20 years which had expired in 2000. Trial Court rejected the application, however High Court allowed the same and decreed the suit under O.12, r.6 CPC.In appeal to this Court, two points were involved (1) Whether the plaintiff had a right to get possession on redemption of his mortgage and (2) whether the provision in the agreement dated 21.9.1981 that the mortgagee will have a right of pre-emption operates as a clog on the right of redemption of the mortgagor. |
Judge | Hon'ble Mr. Justice Markandey Katju |
Neutral Citation | 2007 INSC 1002 |
Petitioner | Hasthimal And Sons And Ors. |
Respondent | P. Tej Raj Sharma |
SCR | [2007] 10 S.C.R. 537 |
Judgement Date | 2007-10-04 |
Case Number | 3008 |
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