1 (SA 292 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 292 OF 2010 Shivaji Fakira Vhovale since deceased, through LRs. Smt.Rukmini Shivaji Vhovale and Ors. ...Appellants (Org.Plaintiffs) Vs. Dnyanu Vithu Shinde and Ors. ...Respondents (Org.Defendants) ----- Mr.Vijay Killedar for Appellants. ----- CORAM: V.M. KANADE J. DATED: 28TH JANUARY, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Appellants. 2. The Appellants are the original-Plaintiffs, who filed a suit for redemption of mortgage. According to the Plaintiffs, the father of the Plaintiffs had mortgaged the suit property to the Defendant No.1 by mortgage deed dated 7.4.1969 for the consideration of Rs.1,500/-. The 2 (SA 292 of 2010) property was transferred to the Defendant No.2 by the Defendant No.1 on 7.11.1969 i.e. almost after a period of 7 months. The suit for redemption was filed in 1995. The Defendant No.1 did not appear before the Trial Court and suit proceeded ex-parte against him. The Defendant Nos.2 and 3, however, filed their written statement and contended that on 7.11.1969 at the time of executing of deed of transfer Rs.15,000/- was paid by the Defendant No.2 to the Plaintiffs as consideration for sale of mortgage property. It was contended that it was agreed that the Plaintiffs’ father had agreed that he would not seek redemption of the mortgage in view of the payment of Rs.1,500/-. The Trial Court accepted the case of the Defendants and dismissed the suit. The Appellate Court also confirmed the said order. 3. The learned counsel appearing on behalf of the Appellants submitted that both the Courts below had erred in relying on the oral testimony of the Defendants 3 (SA 292 of 2010) of payment of Rs. 15,000/- and there was no documentary evidence brought on record by the Defendants. It was submitted that therefore, the finding which was recorded by both the Courts below was perverse and was liable to be set aside. 4. In my view, it will not be possible to accept the submissions made by the learned counsel for the Appellants. Both the Courts below have taken into consideration the proviso to section 60 of the Transfer of Property Act. Section 60 reads as under: “Section 60 – Rights of mortgagor to redeem – At any time after the principal money gas become 65[due], the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage- money, to require the 65 Substituted by Act 20 of 1929, S. 22 for “payable” 4 (SA 292 of 2010) mortgagee (a) to deliver 66[to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the 66 Substituted by Act 20 of 1929, S.22, for “the mortgage-deed, if any, to the mortgagor”. 5 (SA 292 of 2010) mortgagee has been extinguished: Provided that the right conferred by this section has no been extinguished by act of the parties or by 67[decree] of a Court. The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that; if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgage shall be entitled to reasonable notice before payment or tender of such money. 67 Substituted by Act 20 of 1929, S.22, for “order” 6 (SA 292 of 2010) Redemption of portion of mortgaged property- Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except 68[only] where a mortgage, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.” 5. There is a proviso to the said section which clearly contemplates that rights of redemption can be given up either by act of parties or by decree of Court. In the 68 Inserted by Act 20 of 1929, S.22 7 (SA 292 of 2010) present case, both the Courts below have held that the Plaintiffs had given up their rights on redemption. This finding has been recorded after taking into consideration various circumstances. The finding of fact recorded by the Trial Court had been confirmed by the Appellate Court. 6. That being the position. It will not be possible to interfere with the concurrent finding of fact recorded by both the Courts below. Second Appeal, therefore, is dismissed. (V.M. KANADE J.)