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Shankar Dhonddev Vs. Yeshwant Raghunath Gaitonde - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Cross-Appeal Nos. 22 and 242 of 191
Judge
Reported in(1920)22BOMLR965; 58Ind.Cas.384
AppellantShankar Dhonddev;yeshwant Raghunath Gaitonde
RespondentYeshwant Raghunath Gaitonde;shankar Dhonddev
DispositionAppeal allowed
Excerpt:
.....half the property should be taken by the mortgagor and half by the mortgagee. at the end of twenty years the mortgage money was not paid off; and the defendants remained in possession of the lands mortgaged for four more years. the plaintiffs then pissed a document to the defendants, which effected a transfer of half the property to the mortgagee, and brought back into the ownership of the morfcgasor the other half free of all encumbrances. nearly forty-eight years afterwards the plaintiffs brought a suit to redeem the moiety of the property so retained by the defendants, alleging that, the arrangement amounted to a clog on the equity of redemption and so was not binding upon them:-;dismissing the suit, that the arrangement in question did not amount to a clog on the equity of..........is that if after the lapse of twenty years the mortgage debt should not be paid off, then half the mortgage property was to become the absolute property of the mortgagee, and the other half was to return to the mortgagor as his absolute property free from the mortgage. in kanhayalal's case it was held, as i understand it, and also as i believe correctly, that the mortgage-deed would not automatically bring about the arrangement stated, at the end of the stated number of years. it would not do that, because the stipulation in the mortgage-deed would be regarded as a clog on the equity of redemption, and, therefore, as inoperative. in the case we are concerned with, however, the parties evidently did not suppose that the clause or stipulation in the mortgage deed would itself automatically.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiffs filed this suit for accounts and redemption under the Dekkhan Agriculturists' Relief Act. The lower appellate Court passed an order that the plaintiffs should redeem 7/12ths of the entire property as described in Exhibits 79 and 77 free of all encumbrances. The defendants mortgagees have appealed with regard to certain property contained in the mortgage deed of 1840 passed by the plaintiffs' ancestors. That mortgage was for a period of twenty years, and it was provided that if the money was not paid off at the end of twenty years half the property should be taken by the mortgagor and half by the mortgagee. The mortgage money was not paid off at the end of twenty years, and the mortgagee remained in possession until 1864, when a document was passed by the mortgagor, which is Exhibit 76. That refers to the agreement in the mortgage of 1840, and effects a transfer of half the property to the mortgagee, and brings back into the ownership of the mortgagor the other half free of all encumbrances.

2. Now in this suit, which is filed in 1912, the plaintiffs wish us to hold that the arrangement which was arrived at in 1864 is not binding on them, and that they could redeem the property which was retained by the mortgagee under Exhibit 76. We have been referred to the decision of Kunhayalal v. Narhar I.L.R (1903) Bom. 297. In that case the learned Judge referred to the case of Lisle v. Reeve [1902] 1 Ch. 53 and no doubt the principle laid down in that case should be followed by a Court of equity. It is a principle of equity that a mortgagor can be relieved from any clog which has been placed on the equity of redemption. Therefore if the original document of mortgage contained a clause that if the mortgage money was not repaid at the end of the mortgage period, the mortgagor should be foreclosed, that clause would not be specifically enforced against the mortgagor, and he would still be entitled in spite of it to redeem. But there is nothing to prevent the mortgagor and mortgagee from coming to an arrangement after the mortgage has been executed whereby the mortgage is paid off. Vaughan Williams L. J. in the case I have cited said that 'it was competent for a mortgagee to enter into an agreement to purchase from the mortgagor his equity of redemption. The only objection to such an agreement is, that it must not be part and parcel of the original loan or mortgage bargain....But there is nothing to prevent that being done by an agreement which in substance and in fact is subsequent to and independent of the original bargain.'

3. Now it has been argued that this agreement which was arrived at in 1864 was part and parcel of the original mortgage transaction effected in 1840, and in that argument of the respondent, we think, can be discerned the fallacy in the case and in the judgment in appeal. If at the end of the period in 1860 the mortgagor had failed to repay the mortgage, and the mortgagee had disputed the mortgagor's right to redeem the Court would not have allowed that to be done. It would have been still open to the mortgagor to ask the Court to enable him to redeem. But if he chooses to enter into an agreement several years later with the mortgagee whereby the mortgage transaction is cloaed, whereby he gets back free of his mortgage debt, half the mortgaged property, while the remaining half remains with the mortgagee, then I do not think any Court of equity would allow the mortgagor to re-open such a transaction. No doubt the terms of the agreement in 1864 and the deeds of sale in the transaction are identical with what was agreed to in 1840, and it is argued that on account of that it cannot be said that the agreement of 1864 is independent of the original bargain. I cannot agree with that argument. I cannot see any reason why the parties should not be allowed to come to the agreement, which as a matter of fact they did in 1864, as perfectly free agents. If the mortgagee sued for specific performance of the agreement of 1840, and asked for foreclosure, then that would have been an entirely different matter. It appears to me that this agreement in 1864 was not only subsequent, but also independent of the original bargain, and, therefore, in my opinion, this appeal succeeds, and the plaintiff's cannot redeem any portion of the property which was mortgaged in 1810, and transferred to the mortgagee in 1864. The case of Ramji v. Chintom (1864) 1 B.H.C.R. 199, which was referred to in Kanhayalal v. Narhar I.L.R (1903) Bom. 297, does not touch this point with which I have been dealing. That no doubt did give effect to the general principle of equity that 'where an instrument of mortgage, though in terms it transfers an estate on failure to repay the mortgage-money on a fixed day, yet appears clearly to have been entered into by parties for securing the repayment of a loan, the mortgagor, making the security subservient for the purpose for which it was created, may in equity and good conscience redeem the property by paying off the principal debt and the interest, though the stipulated time for payment had been allowed to pass by.' No one disputes that, and the judgment I have delivered is in no way contrary to the principle which is given effect to by that decision.

4. The only point argued in Appeal No. 242 of 1919 is whether the lower appellate Court correctly interpreted Exhibit 80. It held that it could not be considered as an acknowledgment of the mortgage created in 1839 by Balaji Hari of his one-third shared in eight annas by Exhibit 78. No doubt that document does refer to a' certain share mortgaged with Karande by the plaintiffs. But we know that there had been a number of mortgages. It is impossible to hold that this is an acknowledgment of a particular mortgage passed in 1839, when there is no specific reference to that mortgage, and, therefore, Appeal No. 242 must be dismissed with costs. As defendants have succeeded throughout they will get costs throughout in Appeal No. 22, which is allowed, as to that part of the claim which was valued at Rs. 250.

Heaton, J.

5. The Judge in the Court below considered that he was bound by the decision in Kanhayalal v. Narhar I.L.R (1903) Bom. 297. But a little consideration shows that case is no authority whatever for the present. There was indeed a very similar mortgage-deed which provided very much the same as the present deed which we are concerned with here. The provision in the deed before us is that if after the lapse of twenty years the mortgage debt should not be paid off, then half the mortgage property was to become the absolute property of the mortgagee, and the other half was to return to the mortgagor as his absolute property free from the mortgage. In Kanhayalal's case it was held, as I understand it, and also as I believe correctly, that the mortgage-deed would not automatically bring about the arrangement stated, at the end of the stated number of years. It would not do that, because the stipulation in the mortgage-deed would be regarded as a clog on the equity of redemption, and, therefore, as inoperative. In the case we are concerned with, however, the parties evidently did not suppose that the clause or stipulation in the mortgage deed would itself automatically effect its purpose, because in 1864, i.e., twenty-four years, not twenty years, after the date of the mortgage, they accomplished what it had previously been arranged should be accomplished, in a proper and legal way by a registered document. There is only one possible ground on which, as far as I can see, that registered document can be declared to be of no effect, and on which it can be held that the Court must proceed exactly as if it had never been executed. It is this that there is some legal objection to patties actually doing what they had undertaken to do, so long as they could not be compelled to do it. It is perfectly true that the mortgagor could not have been compelled to assent to what was done in 1864, even though the mortgagee had pointed out the provision in the mortgage bond. But there are thousands of lawful transactions entered into by people of their own free will, which they could not be compelled to enter into; and it seems to me to be no reason whatever against the validity of the transaction of 1864 that it was one which the mortgagor could not have been compelled to assent to. That, 1 think, is all that I need say in this case. It seems to me to be about as clear a case as one could have of a perfectly valid and honest transaction, and I think undoubtedly the trial Court was right, and that the Court of first appeal was misled by its belief that the matter was settled by the authority of Kanhayalal's case. I agree to the order proposed.


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