CHHAGANLAL KESHAVLAL MEHTA versus PATEL NARANDAS HARIBHAI

CHHAGANLAL KESHAVLAL MEHTA versus PATEL NARANDAS HARIBHAI

Under Section 60 of the Transfer of Property Act, a co-mortgagor cannot redeem his own share alone on payment of proportionate mortgage amount. However, suit for redemption may proceed against surviving mortgagee if plaintiff pays entire mortgage consideration and relinquishes claim against others. The endorsements by mortgagor’s heirs do not constitute estoppel under Section 115 of the Evidence Act as the necessary ingredients are absent; admissions may be withdrawn and are not absolute bars.

Parties
Appellant Defendant No. 1: Chhaganlal Keshavlal Mehta; Respondent Plaintiff: Patel Narandas Haribhai
Jurisdiction
India
Judgment Date
11 December 1981
Procedural Posture
Civil Appeal No. 1567 of 1970 / Final Decision on Appeal From Letters Patent Appeal No. 6/60, Gujarat High Court
Outcome
Appeal dismissed
Legal Topics
Redemption of Mortgage, Estoppel by Conduct, Abatement by Death of Party, Right of Co Mortgagor, Equity of Redemption
Property Law Civil Procedure Redemption of Mortgage Estoppel by Conduct Abatement by Death of Party Right of Co Mortgagor Equity of Redemption

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Parties

Chhaganlal Keshavlal Mehta

Appellant Defendant No. 1

Patel Narandas Haribhai

Respondent Plaintiff

Procedural Posture

Civil Appeal No. 1567 of 1970 / Final Decision on Appeal From Letters Patent Appeal No. 6/60, Gujarat High Court

Legal Issues

  1. 1 Whether co-mortgagor can redeem his own share on payment of proportionate mortgage amount under Section 60 of the Transfer of Property Act
  2. 2 Whether suit abates upon death of party and heirs not brought on record (Order XXIII Rule 2 CPC)
  3. 3 Whether estoppel by conduct applies under Section 115 of Evidence Act when mortgagor heirs allegedly relinquish interest

Ratio Decidendi

Under Section 60 of the Transfer of Property Act, a co-mortgagor cannot redeem his own share alone on payment of proportionate mortgage amount. However, suit for redemption may proceed against surviving mortgagee if plaintiff pays entire mortgage consideration and relinquishes claim against others. The endorsements by mortgagor’s heirs do not constitute estoppel under Section 115 of the Evidence Act as the necessary ingredients are absent; admissions may be withdrawn and are not absolute bars.

Court Disposition

Appeal dismissed

Orders

  • Suit for redemption allowed against surviving defendant No. 1 on payment of entire mortgage amount plus repairs; plaintiff not barred by estoppel; costs awarded.