Transfer of Property Act (TPA)
Persons Entitled to Sue for Redemption under Section 91: Who Besides the Mortgagor May Redeem
Redemption is not the mortgagor's private right. Anybody whose own interest will be destroyed if the mortgage is enforced has a stake in paying it off, and section 91 says so. A second mortgagee, a purchaser of the equity of redemption, a co-mortgagor, a surety, a lessee, a person holding a charge — each of them may pay the mortgage money and redeem. And when he does, section 92 does not leave him out of pocket: he steps into the shoes of the mortgagee he has paid.
1. The Section
Section 91, TPA 'Besides the mortgagor, any of the following persons may redeem, or institute a suit for redemption of, the mortgaged property, namely: (a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same; (b) any surety for the payment of the mortgage-debt or any part thereof; (c) any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property.' |
2. Who Falls Within Clause (a)
The person | Why he is within the clause |
|---|---|
A puisne or mesne mortgagee | He has an interest in the property, and the enforcement of the prior mortgage would destroy his security. Redeeming the prior mortgage is often his only protection |
A purchaser of the equity of redemption | He has bought what remains in the mortgagor, and his purchase is worthless if the mortgage is enforced |
A co-mortgagor | He has an interest in the property; and section 95 gives him a charge on the shares of the others for their proportion of what he pays |
A person holding a charge on the property | The clause covers a charge as well as an interest |
A lessee from the mortgagor | His lease is an interest in the property, liable to be defeated by the mortgagee |
A subsequent purchaser of a share, or anyone with an interest in the right to redeem | The clause expressly extends to an interest in or charge upon the right to redeem, and not only upon the property |
Not the mortgagee of the interest sought to be redeemed | The clause excludes him, since he cannot redeem himself |
3. Clauses (b) and (c)
- A surety for the mortgage debt may redeem. His interest is obvious: if the security is realised for less than the debt, he is the person who will be called on for the balance, and he is entitled to protect himself by paying and taking over the security.
- A creditor of the mortgagor who has obtained a decree for sale of the mortgaged property in a suit for the administration of his estate may redeem. An ordinary decree-holder is not within the clause; the decree must be one for sale obtained in an administration suit.
4. When and How the Right Is Exercised
Question | Answer |
|---|---|
When may he redeem? | On the same footing as the mortgagor — after the principal money has become due, and before the right is extinguished by act of the parties, by decree, or by limitation |
Must he pay the whole? | Yes. He must pay the whole of the mortgage money; there is no redemption of part of a mortgage, save in the situations section 60 and section 61 allow |
May he deposit in court? | Yes — section 83 extends to 'any other person entitled to institute such a suit' |
What does he get? | The rights of the mortgagee whose mortgage he has redeemed, by subrogation under section 92, so far as regards redemption, foreclosure or sale |
Whom must he make a party? | In a redemption suit, the mortgagee, and generally all persons interested in the equity of redemption, so that the decree binds them |
What if he is a co-mortgagor? | Section 95 gives him a charge on the shares of the other co-mortgagors for their proportion of the expenses properly incurred in redeeming and preserving the property |
5. Why the Section Is Drawn So Widely
- A security should be redeemable by anyone it threatens. The person who stands to lose is the person with the incentive to pay, and the law lets him.
- It protects subordinate interests. A puisne mortgagee or a lessee would otherwise be at the mercy of a prior mortgagee's decision to enforce.
- It costs the prior mortgagee nothing. He is paid in full; only the identity of the person who pays him changes.
- And subrogation makes it fair to the payer. He does not make a gift of his money: he takes over the security he has discharged, with its priority.
6. Landmark Cases
📖 Valliamma Champaka Pillai v. Sivathanu Pillai, (1979) 4 SCC 429 Held: The Court examined sections 91 and 92 together. Persons who have an interest in the property mortgaged, or in the right to redeem it, are entitled to redeem; and where such a person redeems, he becomes entitled by legal subrogation to the rights of the mortgagee whose mortgage he has paid off. A stranger who merely advances money stands differently, and can claim subrogation only on the terms the section allows. Ratio: The right to redeem under section 91 and the right of subrogation under section 92 are two halves of one scheme. |
7. Related Topics and Provisions
- Subrogation, Section 92 — what the redeeming person obtains
- Right of Redemption, Section 60 — the mortgagor's own right
- Deposit of the Mortgage Money in Court, Section 83 — open to the same persons
- Sections 94 and 95, TPA — the mesne mortgagee, and the redeeming co-mortgagor's charge
- Section 61, TPA — separate or simultaneous redemption of several mortgages
- Order 34, Code of Civil Procedure, 1908 — parties to a redemption suit