1. This appeal arises out of a suit for redemption. The plaintiff is the son of Parothan, who had a brother Angnu, and Angnu's son was Manogi. The plaintiff-respondent came to Court on the allegation that 24 to 25 years before the institution of this suit his father and Angnu mortgaged the property in suit, which is a plot of occupancy holding with a small area of 37 acres, in favour of the appellant's father Bodh Ahir for a sum of Rs. 20.
2. The defence was that the original mortgage was one dated 1st Sawan on the dark side 1295 Fasli, for Rs. 23-8. But subsequently the two mortgagors and Angnu's son Manogi sold the mortgagors' rights in the plot for a sum of Rs. 55-8 to Bodh Ahir. The result was that since the execution of this deed on 29th June 1899, Bodh Ahir and after him his son and grandson have been in adverse possession of the land and no suit for redemption could be maintained. They also plead that if on a proper construction of the deed of 1899 the Court should find that it was really a deed of mortgage, then the period for redemption fixed by the deed was sixty years and the suit was premature. The appellants, of course, denied that there did not exist any mortgage with the incidents alleged by the plaintiff.
3. The Court of first instance dismissed the suit but the learned Subordinate Judge on appeal has decreed redemption on condition of payment of Rs. 58-8.
4. Several grounds of appeal have been taken, two of which are these:
First, the plaintiff did Dot prove the mortgage to redeem which they came to Court.
The second is that, having regard to the deed of 1899 the lower Court was not justified in allowing redemption.
5. In view of the fact that the second point concludes the suit, it is not necessary to say much on point No. 1, which is no doubt another strong argument against the success of the respondent.
6. In the deed of the 29th June, 1899, the there executants say that they borrowed Rs. 3.0 from Bodh Ahir, that they previously borrowed on foot of the mortgage of 1295 Fasli a sum of Rs. 23-8 and had made a mortgage of the plot in suit, that the total amount came to Rs. 58-8, and they agreed that in lieu of this sum of Rs. 58-8 the mortgagee Bodh Ahir should continue to be in possession of the mortgaged land for a period of sixty years. They concluded the document with the additional covenant that even on the expiry of the period of sixty years the mortgagors would not ask far redemption.
7. The learned Judge of the Court below held that this was a deed which clearly showed that by some means or other Bodh Ahir was anxious to deprive the mortgagors of their right of redemption. The learned Judge held that if; followed from this that the son and grandson of Bodh Ahir stood in the position of trustees towards the property. He accordingly decreed the suit for redemption on payment of Rs. 58-8. This sum was offered on behalf of the plaintiff. In view of the circumstances, however, of the case he ordered that the parties must pay their own costs. This only means that the mortgagee, who should always get his costs in a suit for redemption, unless his conduct disentitles him from getting the same, was punished by not being allowed any costs at all. I have read the document dated 29th June 1899. It is clearly a deed of mortgage for the term of sixty years for the sum of Rs. 58-8. By this deed the earlier mortgage was wiped out and a fresh one was created. The term was sixty years. Under Section 60 of the Transfer of Property Act a mortgagor has an absolute right of redemption after the expiry of the term of the mortgage, and any stipulation in the deed itself which is likely to nullify the right of redemption must be treated as a clog on redemption. The term, therefore, that there would be no redemption even after the period of sixty years would probably be treated as a clog on the right of redemption. Anyhow that is a point which does not arise at the present moment. The most favorable view that can be taken in favour of the respondent, of the document in question is that it is a deed of mortgage. The term of redemption is sixty years. The case of Sarbadawan Singh v. Bujai Singh (1914) 36 All. 551 has been quoted as showing that, whore the term of redemption is a long period, the stipulation must be regarded as a clog on the right of redemption, and, therefore, as unenforceable. It is contended on foot of this authority that the sixty years' term fixed by the mortgage must go and the property should be redeemable at any time.
8. In the case of Sarbadawan Singh v. Bajai Singh (1914) 36 All. 551 referred to above, the mortgage deed provided forty years' time for redemption. It further provided that on the day after the expiry of the term of forty years redemption must be effected, and in default the mortgage would hold good for another term of forty years. The mortgage money was deposited in Court after the expiry of the term of forty years, but it was contended on behalf of the mortgagee that there could not be any redemption for a further period of forty years. The learned Judges held that this latter agreement that the mortgage would enure for a further term of forty years was a clog on the right of redemption and was not enforceable. This is undoubtedly the right law. See Mahomed Sher Khan v. Raja Seth Swami Dayal A.I.R. 1922 P.C. 17. Their Lordships did not hold that where a mortgage provided for a term of forty years for redemption, that term, by itself, was to be regarded as a clog on the right of redemption simply because the term was long. The right of redemption is an absolute right provided by Section 60 of the Transfer of Property Act, and no contract which is designed to take away that right can be enforced. In the Privy Council case of Bakhtawar Begam v. Husaini Khanam A.I.R. 1914 P.C. 36, their Lordships of the Privy Council held that, where a term of mortgage has been fixed there can be no redemption within that period. In this case before me, therefore, there can be no redemption within the period of sixty years from 1899.
9. In the above view of the case need hardly point out that the plaintiff sought the redemption of a mortgage of 1295 or about that time which was made for a sum of Rs. 20 or some such small amount. Ho has been granted by the Court below a decree for the redemption of a mortgage of 1899 for a sum almost thrice the amount for which the redemption was sought. This could not be justified in any case.
10. The result is that the appeal succeeds and the suit of the respondent fails and it is hereby dismissed with costs throughout the costs in this Court will include counsel's fees on the higher scale.