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Sukhraj Vs. Ram Bali and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1629 of 1969
Judge
Reported inAIR1973All79
ActsTransfer of Property Act, 1882 - Sections 60
AppellantSukhraj
RespondentRam Bali and anr.
Appellant AdvocateBashir Ahmad, Adv.
Respondent AdvocateG.P. Dikshit, Adv.
DispositionAppeal allowed
Excerpt:
.....could be made to the structure - amounts spent by the respondents would be reimbursed - right of redemption of the property to be exercised after completion of sixty years from date of mortgage - plaintiff claimed redemption before expiry of sixty years - held, any such stipulation will not restrict the mortgagor to redeem property before expiry of fixed time. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school..........there was a further onerous stipulation as on the amount of taxes paid by the mortgagee for the house mortgaged the mortgagor was also required to pay an interest of 24 per cent per annum. the learned judge of the court below relied on another division bench decision of this court in the case of mst. sabratan v. dhanpat gada-riya : air1933all70 where the learned judges held that a stipulation that the mortgagee will remain in possession for a period of 60 years and the mortgage could not be redeemed before the expiry of that period, though the rate of interest was high, did not amount to a clog on the equity of redemption. the later division bench in : air1962all422 (supra) noticed the said earlier division bench decision in : air1933all70 (supra) and observed that:'the view taken in.....
Judgment:

K.B. Asthana, J.

1. The question that falls for determination in this appeal is whether the plaintiff-appellant's suit for redemption of the usufructuary mortgage was premature having been filed before the expiry of the period of sixty years against the stipulation in the mortgage deed that the mortgagor will not redeem the mortgage till the expiry of that period. The two courts below have differed on this crucial question. The trial Court held that the term in the mortgage deed preventing the mortgagor from redeeming the mortgage before the expiry of sixty years when considered along with other circumstances amounted to a clog on the equity of redemption and was not binding, hence the plaintiff's suit was not premature. The lower appellate Court took the contrary view and held that the term in the mortgage deed to the effect that the mortgagor will not have the right to redeem the mortgage before the expiry of sixty years Was not a clog on the equity of redemption in the circumstances of the case and the plaintiffs suit was premature.

2. On 6-2-1920 Smt. Butki executed a usufructuary mortgage in favour of Tha-kur Prasad of her small house consisting of a room, a verandah and a court-yard. The mortgage deed which is registered as Ext. A-1 on record. The material recitals of the deed may be stated for convenience. The loan advanced by the mortgagee to the mortgagor was Rs. 70/-. The necessity for the loan as recited in the deed was that Soman, the mortgagor's son, had incurred a loan to meet the expenses in respect of the funeral rites of the mortgagor's husband and since Soman himself had died, the responsibility of payment of that loan fell on the mortgagor. She had no choice but to mortgage her immovable property to secure the necessary loan of Rs. 70/-. The terms of the mortgage were (1) The mortgagee shall retain the possession of the mortgaged house and enjoy its usufruct during the mortgage period. Neither the mortgagor will claim any rent from the mortgagee in respect of the said house nor the mortgagee will claim any interest on the money advanced, (2) The responsibility for keeping the mortgaged house in good repairs would be that of the mortgagee, who will also have the right, if he so wished, to demolish the structure and reconstruct the house afresh according to his choice, (3) The mortgagee shall keep a memorandum of accounts of the annual repairs and of constructions, (4) When after the expiry of 60 years the mortgagor desired to redeem the mortgage, she will pay the principal amount advanced along with all the expenses incurred for the repairs and constructions of the house as recorded in the memorandum with 2 per cent per mensem interest and (5) The mortgagor or her successors will have no right to redeem the mortgage within the period of sixty years fixed under the terms of the mortgage.

3. On 17-1-1967 Sukhraj, the suc-cessor-in-interest of the mortgagor Smt. Butki, brought the suit giving rise to this appeal against Ram Bali and Lalman, the successor-in-interest of the mortgagee, for redemption of the mortgage and possession of the mortgaged house on the allegation, inter alia, that when the plaintiff approached the defendants to give possession of the mortgaged house on payment of the mortgage debt, they refused hence the suit. It Was pleaded that the term that the mortgage shall not be redeemed before the expiry of 60 years, being a stipulation amounting to a clog on the equity of redemption was not binding and the suit was not premature.

4. The main plea raised by the defendants in defending the suit was that none of the terms of the mortgage, in the circumstances it was executed, amounted to a clog on the equity of redemption. The plaintiff being bound by the terms, the suit Was premature.

5. Indeed it has become a truism 'Once a mortgage always a mortgage'. The right to redeem is an essential characteristic of a transaction of mortgage. It is settled law that a mortgagor cannot bargain himself out of such right inhering in him. Any condition or stipulation in the mortgage transaction which takes away the right of the mortgagor to redeem the mortgaged property will not bind the mortgagor. However, depending upon the facts and circumstances of each case even the restrictions on the right of the mortgagor to redeem the mortgage have some times been held not to be binding as they have been held to amount to a clog on the equity of redemption. In the case of Sarju Ram Baranawar v. Taji Bibi : AIR1962All422 a Division Bench of this Court, relying on the observations of the Supreme Court in the case of Gangadhar v. Shankar Lal : [1959]1SCR509 and after noticing a number of decided cases, laid down the law that the rule against the clogs on equity of redemption involves that the courts have power to relieve a party from a bargain which has the effect of forfeiting the mortgagor's right to redeem. But even in cases of bargains which merely restrict the mortgagor's right to redeem, the Courts have power to relieve the mortgagor from such bargain. The Court's jurisdiction to relieve him from the bargain in such a case would depend on whether it was obtained by taking advantage of any difficulty or embarrassment that he might have been in when he borrowed the money on the mortgage. If the mortgagor was oppressed or imposed upon then he is entitled to relief.

6. In the case of Murari Lal v. Deva Karan : [1964]8SCR239 the Supreme Court observed that the High Courts have consistently adhered to the view that in dealing With the mortgage transactions unfair, unjust or oppressive stipulations unreasonably restricting the mortgagor's right to redeem, the Court would be justified in refusing to enforce such stipulations and recognizing the paramount character of the equity of redemption.

7. The trial Court found that under the terms of the mortgage if the mortgagor Waits for sixty years to redeem the mortgage, he will have to pay a sum of Rupees 20,000/- to redeem the mortgaged house. The mortgagee had an absolute right without any restriction to raise as costly a construction as he wished after demolishing the of house or to spend any sum on repairs as high an amount he wished and then for a number of years charge interest thereon at the rate of 24 per cent per annum. The onerous burden thus with which the mortgagor would be loaded because of the passage of time will be so oppressive that it Would defeat his right ever to get back the mortgaged house. There is evidence on record that the mortgagee spent a sum over Rs. 800/- in repairs and in raising new constructions. Upto the date of the suit a large sum would be accumulated as interest and if the mortgagor was required to wait for a further period of 13 or 14 years as under the terms the mortgage could only be redeemed after 1980 another large sum would be added towards the liability of the mortgagor. The recitals in the mortgage deed show that the old lady Smt. Butki was under a stress as she had to pay off the debt incurred by her son in meeting the funeral expenses of her husband and the unfortunate woman's son also died. These circumstances show that the debt was incurred by the mortgagor in an atmosphere of anxiety and oppression. There is nothing on record to show that the mortgagor had other properties and was otherwise in affluent circumstances. There is no escape thus from the circumstances that the onerous terms as to interest and giving absolute freedom to the mortgagee to incur unlimited expenses in repairs and constructions of the mortgaged house and the amount so spent was to carry heavy interest of 24 per cent per annum coupled with the condition that the mortgage was not redeemable before the expiry of 60 years and the mortgagor was liable to pay along with principal amount all other amounts spent by the mortgagee in repairs and constructions together with accumulated interest at an exorbitantly high rate before the mortgage could be redeemed show that the long period of 60 years stipulated under the mortgage deed was put in with the ulterior object of avoiding any possibility of redemption. I have no hesitation in holding that the terms in the mortgage deed were unconscionable and I agree with the view taken by the trial Judge and disagree with that of the appellate Judge. The facts in the case of Sarju Ram Baranawar v. Taji Bibi (supra) were almost similar to the facts and circumstances of the instant case. The Division Bench in that case held that the stipulation that the mortgage could not be redeemed for 49 years coupled with other stipulations amounted to a clog on the equity of redemption and did not prevent the mortgagor from redeeming the mortgage before the expiry of 49 years. The learned Judge of the lower appellate Court distinguished the ruling on the ground that in that case there was a further onerous stipulation as on the amount of taxes paid by the mortgagee for the house mortgaged the mortgagor was also required to pay an interest of 24 per cent per annum. The learned Judge of the Court below relied on another Division Bench decision of this Court in the case of Mst. Sabratan v. Dhanpat Gada-riya : AIR1933All70 where the learned Judges held that a stipulation that the mortgagee will remain in possession for a period of 60 years and the mortgage could not be redeemed before the expiry of that period, though the rate of interest was high, did not amount to a clog on the equity of redemption. The later Division Bench in : AIR1962All422 (Supra) noticed the said earlier Division Bench decision in : AIR1933All70 (Supra) and observed that:

'The view taken in the earlier case must give way to the Supreme Court decision in : [1959]1SCR509 (Supra).'

8. In my judgment, the learned Judge of the Lower Appellate Court was bound to follow the later Division Bench decision of the High Court which held that the decision of the earlier Division Bench was no longeE good law in view of the decision of the Supreme Court. The attempt of the learned Judge of the Court below to distinguish the case of Sarju Ram Baranawar : AIR1962All422 on facts only because besides the common features in that case and in the instant case there was one more onerous condition in the case cited in respect of payment of tax and interest thereon appears to be devoid of any tenability and substance.

9. It was strenuously urged by the learned Counsel for the defendant-respondents that a mere stipulation fixing a large period, before the expiry of which the right of redemption cannot be exercised, will not amount to a clog on the equity of redemption. I do not think there is any such general rule of law. If the other terms and conditions of the mortgage are fair and do not cause any oppressive burden on the mortgagor to exercise his right of redemption certainly mere length of time within which the right of redemption cannot be exercised will not amount to a clog but if the postponement of right of redemption for a long period is motivated to defeat the right of redemption the other terms being such that at the end of that period when the right to redeem arises an oppressive and onerous burden will be cast on the mortgagor considering his circumstances then the stipulation restricting the mortgagor's right to redeem for a long period will not prevent the mortgagor to redeem the mortgaged property before the expiry of the period fixed as such a stipulation and can always be avoided by the Court as amounting to a clog on the equity of redemption. In the case of Chandan Mal v. Saleraj Modi, J., put to himself a question that where the parties to a mortgage agreed to the postponement of a right of redemption being exercised for a period of 500 years could it be justly said that it was a reasonable period and then answered the question as follows:--

'I think not. The postponement of the right of redemption until very long periods has a tendency to considerably impede the exercise of the right of redemption at the actual time when it may be resorted to, if it does not actually destroy it, by the lapse of file intervening period.'

10. I respectfully share this view. The learned counsel for the respondents referred to many other decisions of the High Courts where postponement of a right of redemption for a period of 60 years or even more has not been held in India to amount to a clog on redemption and I am conscious of the weight those decisions carry. I feel bound by the decision of the Division Bench of this Court in : AIR1962All422 (Supra) and respectfully agree with the law declared therein. Here in the instant case the period of 60 years during which the right of redemption was postponed as stipulated in the mortgage deed, having been found accompanied with other conditions, which taken together with the postponement of the redemption, place such an impediment on the exercise of the right of redemption at the expiry of the fixed period that it would almost be impossible to exercise it The suit of the plaintiff, therefore, for the redemption of the mortgage Was not premature and he was entitled to maintain the suit

11. Another point that arises is that the court below in holding that the stipulation as to charge of interest at the rate of 24% per annum was not onerous has legally erred. The learned trial Judge reduced the interest to 12% per annum. I think he was right in doing so. The provisions of Usurious Loans Act apply to mortgage debts also.

12. For the reasons given above, I allow this appeal, set aside the judgment and decree of the lower appellate court and restore that of the Court of first instance with costs throughout


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