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Mt. Sabratan and anr. Vs. Dhanpat Gadariya and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1933All70
AppellantMt. Sabratan and anr.
RespondentDhanpat Gadariya and anr.
Excerpt:
.....be interfered with except on well-known lines. ' those rules have to be applied within well defined limits, and what contract may be set aside in england as a mere clog on redemption need not necessarily be set aside having regard to the conditions of the indian law. act, a party had an absolute right of redemption after the mortgage money fell due and any stipulation that sought to interfere with that right of the mortgagor was bad in law. the mortgage itself was bad and, according to the view held in this court, the redemption is allowed, because the mortgagor was entitled to get back his. the cross-objections fail and......cases of mortgage used to come in england under the jurisdiction of the iequity courts, and the rules of equity apply to the cases of mortgage. here in india we have got a codified law of mortgage and it would be improper for us in india to ignore the law obtaining in india and to look for the english cases as our guide. whereour statutory law will not help us, it may. be open to us to look to the j english cases, for rules of equity, justice and good conscience, as laid down by their lordships of the privy council in the case of waghela rajsanji v. shekh masludin [1887] 11 bom 551, mehrban khan v. makhana and mahomed raza v. abbas bandi . in the last mentioned case section 10, t. p. act, was applied as embodying a rule of justice, equity and good conscience. it has been held by their.....
Judgment:

Mukerji, J.

1. This appeal arises out of a suit for redemption instituted by the respondent, Dhanpat Gadariya. The mortgage was made by the respondent's father on 30th October 1905 for a term of sixty years in consideration of Rs. 75. The mortgagee was one Abdullah Weaver, the predecessor in title of the defendants and the terms were as follows: The mortgagee was to be in possession of the premises. The rent of the premises was. taken to be annas 8 p. m. The interest carried by the mortgage money was 2 p.c, p.m. Thus, after deducting 8 annas p. m. as the rent of the house the mortgagor had to pay Re. 1 p.m. at the end of sixty years at the time of the redemption. It was further agreed that the mortgagee would be free' to build or rebuild the house and in that case, in the case of redemption, the mortgagor would pay the amount of the money spent over the building or rebuilding with interest at 2 p.c., p.m.

2. The plaintiff alleged in the plaint that the mortgage had been made by his father without legal necessity, that the house was ancestral and that therefore he was entitled to redeem the property by removal of the onerous terms. The allegation that the house was ancestral was challenged in the written statement but no issue was framed by the Courts below. The first Court decreed the suit on condition of payment of Rs. 2300. The plaintiff appealed, but in his memorandum of appeal he did not ask the question of the character of the property to be tried. The lower appellate Court came to the conclusion that the redemption should be allowed on payment of Rs. 711 only. It held that the cost of the building was Rs. 300, but as the house was capable of fetching a rent of between Rs. 5 and Rs. 6 per month the interest would be set off against the usufruct and thus only the principal amount of Rs. 300 was to be paid on this head. The learned Counsel for the appellants, that is to say, the mortgagees, has argued that the Courts below were not entitled to interfere with the terms of the contract, and we think he is right. This case leads us to consider the law of mortgage with special reference to what is known as the clog on redemption.

3. In England the law of mortgage is essentially different from our law. Cases of mortgage used to come in England under the jurisdiction of the iequity Courts, and the rules of equity apply to the cases of mortgage. Here in India we have got a codified law of mortgage and it would be improper for us in India to ignore the law obtaining in India and to look for the English cases as our guide. Whereour statutory law will not help us, it may. be open to us to look to the j English cases, for rules of equity, justice and good conscience, as laid down by their Lordships of the Privy Council in the case of Waghela Rajsanji v. Shekh Masludin [1887] 11 Bom 551, Mehrban Khan v. Makhana and Mahomed Raza v. Abbas Bandi . In the last mentioned case Section 10, T. P. Act, was applied as embodying a rule of justice, equity and good conscience. It has been held by their Lordships of the Privy Council that the mere fact that the term of redemption is large is no ground for holding that the agreement is bad and should be relieved against: see Bakhtawar Begum v. Husaini Khanum A.I.R. 1914 PC 86. The Courts below therefore were wrong in holding that because the term of redemption was sixty years it was a bad stipulation and the plaintiff was entitled to redeem within the term. The defendants however did not appeal and a redemption having been decreed, we have only to see on what terms the redemption should be decreed.

4. The plaintiff stated in the plaint that the stipulations contained in the mortgage deed were unconscionable, and therefore not enforceable in a Court of law. On this point the law is clearly defined in Section 14 and subsequent sections of the Contract Act. Where a contract is not tainted by coercion, undue influence, fraud, misrepresentation or mistake, the contract has to be upheld in its entirety, unless there is any other law under which a relief can be granted to either party. For example, where the contract amounts to a penalty, Section 74, Contract Act, provides for relief at the discretion of the Court. Again, where the Usurious Loans Act applies, it is open to the Court to modify the terms of the contract. But apart from special rules of law, there is nothing to authorise the Courts to interfere with the sanctity of contracts. This has been laid down by their Lordships of the Privy Council in numerouscases.

5.The plaintiff did not allege that his father entered into the mortgage under any mistake of law or was influenced by fraud or there existed any other circumstance which would vitiate the contract. It was open to the plain tiff's father to sell the house outright. If he had sold the house outright for Rs. 75 the plaintiff could never have asked for redemption. It is therefore wrong to say that the terms entered into by the father were onerous and unconscionable and the plaintiff should be relieved against them. If the plaintiff's father knew that he was entering into terms which would make it impossible for him to redeem the property later or for his descendants to redeem the property at the end of sixty years, it was certainly open to him not to enter into the contract and go to the creditor who could have given him better terms. Thus, under the law of the land, a contract has to be respected and cannot be interfered with except on well-known lines. Mere vague grounds of equity will not justify a Court in interfering with the terms of the contract. In certain cases, the Courts in India have followed the English rule which sets aside what it calls 'clogs on equity, of redemption.' Those rules have to be applied within well defined limits, and what contract may be set aside in England as a mere clog on redemption need not necessarily be set aside having regard to the conditions of the Indian law. Broadly speaking a stipulation, which gives the mortgagee an advantage which does not arise legitimately out of the mortgage contract is treated as a stipulation to clog the redemption. Thus where the mortgagee and the mortgagor agree that after redemption the mortgagee would remain in possession of the lands mortgaged as a tenant of the mortgagor with occupancy rights, the stipulation would be set aside as a clog on redemption. The reason is clear. After the mortgage is redeemed, there remains no consideration for the subsidiary contract by. which the mortgagee wants to remain in possession. The contract therefore fails. The contract is no part of the original contract of mortgage. Similar cases may be cited.

6. In the case of Sher Khan v. Swami Dayal A.I.R. 1922 PC 17, the stipulation was that there would be a redemption at the end of five years, but if (no redemption was asked for, then it could not be asked for another twelve years. Their Lordships of the Privy Council said that under Section 60, T.P. Act, a party had an absolute right of redemption after the mortgage money fell due and any stipulation that sought to interfere with that right of the mortgagor was bad in law. The case came under Section 23, Contract Act, and was therefore covered by Indian law. Two cases have been cited before us as showing that rules of equity have been applied by this Court and the stipulations between the parties have been interfered with. One case is that of Rajai Singh v. Randhir Singh : AIR1925All643 . This was a case of mortgage of occupancy holdings. The mortgage itself was bad and, according to the view held in this Court, the redemption is allowed, because the mortgagor was entitled to get back his. occupancy holdings. But by rules of equity he must pay back what he has received from the mortgagee. Their Lordships who decided the case pointed, out that there were two kinds of cases, one kept the parties strictly within the terms of the mortgage and the other applied the English rules of equity. Their Lordships say:

That is evident from the way in which the matters of this kind are treated in England as; exemplified in the case of Morgan v. Jaffers [1910] 1 Ch 620.

7. The other case, that has been cited before us and was also cited before their Lordships was Sarabdawan Singh v. Bijai Singh A.I.R. 1914 All 334. Their Lordships pointed out that it bore the influence of English authorities. These two cases may be distinguished, the first on the ground that it was a case of occupancy tenancy and the second on the ground that it was covered by the ruling of their Lordships of the Privy Council in the subsequent case of Sher Khan v. Swami Dayal A.I.R. 1922 P.C. 17. The case Bakhtawar Begum v. Husaini Khanum A.I.R. 1914 P.C. 36 need not have been decided on the grounds of equity. It could have been decided on the terms of Section 60, T.P. Act, on which the Privy Council relied. There being therefore no abstract rules of equity applicable to the present case, the present caste being governed by established rules of law made by the. Legislature, we have to see whether we can cut down the interest or whether we can direct that the usufruct of the house would be set off against the interest payable under the terms of the mortgage.

8. In our view neither the Court of first instance was right in reducing the interest, nor was the lower appellate Court right in setting off the usufruct against the interest, there being no stipulation to that effect. The stipulation was that the mortgagee would be entitled to interest on the money laid out by him in building or rebulding the house. The lower appellate Court has held that Rs. 300 were spent in binding the house. The terest on this sum at 2 P.C. p. m. appellants, therefore, are entitled to in-from 1908 when the building was erected to the date of the decree which we take to be the present date. The interest will be calculated in complete years, as the exact dates are not forthcoming, i.e., for 24 years. The interest will be simple. A decree under Order 34, Rule 7, Civil P.C., will be framed. We allow six months to pay. The decree will stand in other respects. The appellants as mortgagees will have the costs of the litigation throughout. The cross-objections fail and. they are dismissed with costs.


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