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Redemption as general term meaning to set loose or release a person from
bondage Redemption is the right of an owner to redeem or reclaim property
by paying the debt after default, together with interest and costs, and
before sale at foreclosure. If the plaintiffs wish to redeem the first two
mortgages they must redeem them entirely and cannot ask for their own share
only. They must pay the entire mortgage money and if that is so, they must
obtain the entire property under mortgage. ….. [Muhammad Hussain vs.
Inayat Ali, PLD 1952 Lah. 372]
The right of redemption is governed by the principle of indivisibility of
the mortgage security. Neither the mortgagor nor the mortgagee can have any
relief inconsistent with this principle unless there is any special
stipulation in the mortgage bond or any subsequent arrangement between all
the parties concerned, authorising a departure. In the absence of such
stipulation or arrangements the owner of a fragment of the right of
redemption cannot redeem his share unless the mortgagee or all the
mortgagees where there are more mortgagees than one, has or have acquired
in whole or in part the share of a mortgagor. His right is a right to
redeem the entire mortgage and he can enforce this right even though the
mortgagee is willing to allow him to redeem his share only. ….. [Sm.
Sabeda Khatun vs. Nayeb Ali, 5 DLR 31]
See, section 60 of the Transfer of Property Act, 1882.
Redemption suit–
Legal aspect of the case, the plaintiffs also failed to prove their case
factually. In the plaint, it was asserted that their
predecessor-in-interest, Momtaz Miah, paid back the kabala money to the
defendants' predecessor-in-interest, Moniruddin as per terms of the
agreement and then he got back possession of the suit land and thereafter,
he was dispossessed. The trial Court gave clear finding that the plaintiffs
failed to prove that their predecessor-in-interest paid back the kabala
money to Moniruddin and that he got back possession of the suit land.
The trial Court also held that as per the own case of the plaintiffs, the
mortgage was redeemed with the return of the kabala money followed by
delivery of possession of the suit land, but subsequently, Moniruddin did
not execute and register the deed of reconveyance, if that be so, the
plaintiffs could not have any cause of action to main the suit for
redemption of the suit land and that they ought to have filed a suit for
specific performance of contract. We have considered the evidence. The
trial Court was perfectly correct in taking the said factual and legal
view. But neither the Appellate Court nor the High Court Division adverted
the above findings of the trial Court in decreeing the suit.
We find merit in the appeal and the same is allowed. The impugned judgment
and order affirming those of the Appellate Court is set aside and those of
the trial Court are restored. …Belayeth Hossain =VS= Nasrin Akhter,
(Civil), 2019 (2) [7 LM (AD) 40] ....View Full Judgment
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