What is meant by clog on redemption?

A mortgage being a security for the debt, the right of redemption continues although the mortgagor fails to pay the debt at due date. Any stipulation / condition in the mortgage deed that impedes, prevents, evades or hampers the mortgagor”s statutory right of redemption, is void. Such a condition/provision is known as a “clog on the equity of redemption.” This doctrine which is based on a rule of justice, equity and good conscience, has been repeatedly upheld by all the Courts in India. In Murarilal vs Devkaran 1965 AIR S.C 225 the Supreme Court settled a principal that “the right of a mortgagor to redeem the property can not be taken away or restricted by any clause in a mortgage deed, and such a clause if incorporated in the deed it will be deemed to be void and the courts will ignore it.

Whether a particular stipulation does or does not amount to a clog on redemption is a question of fact in each case. Certain stipulations which have been held to be such a clog, are:-

  1. a condition converting a mortgage into a sale as held in Gulab Chand Sharma vs Saraswati Devi 1977 2SCC 71
  2. a condition postponing redemption in case of default as held in Mohammed Sher Khan vs Swami Dayal AIR 1922 pc 17
  3. a stipulation for penalty in case of default
  4. a restraint on alienation.
  5. a stipulation that the mortgagor shall redeem without having recourse to a loan from anybody
  6. a condition in a mortgage which seeks to take away equity of the redemption even before the period of four years within which the mortgagor was entitled to pay off the mortgage had run out.
  7. collateral benefit to a mortgagee, such as a condition that even after redemption, the mortgagee would continue in possession as a tenant of the mortgagor. All these have been held to be a clog on the right of redemption.

 

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  • Shiv Tryambake says:

    The Mortgagor has sold/transferred the Mortgaged Property fraudulently to ‘A’ for consideration , Later on ‘A’ has sold the said Property to ‘B’ for consideration and again the ‘B’ sold and transferred the same property to ‘C’ for consideration.
    Now the present purchaser i.e. C is ready and willing to redeem the said Property by paying the sum equal to present Market Value of the said Property.
    Under such circumstances whether the Mortgagee can releases such Mortgaged Property on payment of Market Price of the Mortgaged Property by the Purchaser in his favour i.e. ‘C’ who has purchased the such property for consideration and without having knowledge of previous Mortgage ?.

    After accepting the sum equal to present Market Price of such Mortgaged Property by the Mortgagee from the third party i.e. ‘C’ (other than Mortgagor) Can the Mortgagor’s right of redemption still survives?

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