1. This is an appeal in a suit brought for redemption of an usufructuary mortgage made on February 4th 1871 by the father of the respondent Bijai Singh in favour of Ramdin Singh, father of the four appellants.
2. The mortgage was for a term of 40 years and was to be redeemed on the day following the completion of that term, but if the mortgagor failed to redeem on that day the mortgage was to hold good for a second terms of 40 years. It was also provided that the mortgagor should not be entitled to redeem the mortgage with borrowed money.
3. The mortgage money was paid into Court under Section 83 of the Transfer of Property-Act on June 10th, 1911, but the appellants refused to accept it. The present suit was filed on September 9th, 1911.
4. The defence was that the representative of the mortgagor was not entitled to claim redemption of the mortgage except on the day following the expiry of the term of 40 years. The Subordinate Judge accepted this plea and dismissed the suit. On appeal the District Judge held that the mortgage deed did not show with certainty the date on which redemption might be effected and that the provision that the mortgagee might retain possession for another 40 years in case the mortgagor failed to redeem at the end of the first term, was penal and should not be enforced. Accordingly ho decreed the claim.
5. In second appeal it is contended that the decision of the District Judge is erroneous.
6. The date given at the foot of the mortgage is Magh Sudi 14, Sambat 1967, the fasli year being stated to be 1278. The corresponding date according to the British Calendar was February 4th, 1871, but is not given in the deed. According to the fasli or Sambat year the term of 40 years expired on February 13th, 1911, and redemption should have been effected on February 14th. According to the British Calendar 40 years expired on February 3rd and redemption should have been effected according to the deed on February 4ih. The calendar now commonly employed in transactions of this kind is the British Calendar, but it is not certain that two rustics, as the mortgagor and mortgagee in the present case were, intended that the terms of the mortgage should be calculated according to the British Calendar. The deed is written in the Nagari character and seams to have been the production of some village writer of documents. We are unable, to say that the deed indicates with certainty the data on which redemption might be effected. But assuming that some date is definitely fixed by the deed for redemption, we are of opinion that the provision in question was designed to prevent redemption, or at all events to hamper the mortgagor in such a way as to make redemption almost impossible. It is unnecessary to cite authority for the proposition that a Court of Equity will not permit any device or continuance designed or calculated d to prevent or impede redemption. The appellants rely upon cases in which it has been held that the postponement of the right to redeem till the end of a very long term of years, in one case 90 years, is not a ground for holding that the provision should not be enforced [Muhomed Ibrahim v. Muhomed Aziz Kroshi 8 Ind. Cas. 1068 : 9 M.L.T. 462 : M.W.N. (1910) 792., Ram Prasad v. Jagrup 15 Ind. Cas. 880 : 10 A.L.J. 157., Puran Singh v. Kesar Singh 39 P. R. 1907 : 119 P. L.R. 1907.], upon a large class of cases of which that of Bansi v. Girdhar Lal A.W.N. (1894) 143. is an example, and upon the decision of Griffin, J., in Rambaran Singh v. Ramker Singh 10 Ind. Cas. 243., affirmed in Letters Patent Appeal No. 73 of 1911.
7. The English Courts have shown a strong disinclination to uphold provisions restraining redemption for long periods and we doubt whether they would approve some of the Indian decisions on this question. We doubt also the soundness of the reason that has been given for upholding such provisions in this country, namely that the Indian Limitation Act allows a very long period for suits for redemption. But cases in which the parties have merely agreed to fix very long terms for a mortgage are not to be compared with a case in which a very long term has been fixed and a provision has been inserted in the deed which makes redemption very difficult if not impossible at the end of that term.
8. The present case is also clearly distinguishable from such cases as that of Bansi v. Girdhar Lal A.W.N. (1894) 143. it is an old and we think a reasonable practice to provide that redemption shall take place only in the Khali fasli in the month of Jeth when the crops are off the ground. The mortgagor is allowed a month in which to redeem the mortgage and if he fails to redeem within the month, he must wait till the following year. We have also seen mortgages in which it was provided that if the mortgagor did not redeem during the Khali fasli immediately following the expiry of the term fixed, he should not be entitled to redeem till after the expiry of several more years. Such provisions have often been enforced. But to give a man one day only in 80 years on which he may redeem is to make difficulties for him far greater than are to be found [in cases like Bansi v. Girdhar Lal A.W.N. (1894) 143. or the other cases to which we have referred.
9. There remains to be considered the case of Rambaran Singh v. Ramker Singh 10 Ind. Cas. 243. decided by this Court. In that case the mortgage was made on June 3rd 1895 and provided that the mortgagor might redeem on Jeth Sudi Puranmashi 1315 fasli i, e., a little over 13 years after the date of the mortgage and that if the mortgagor failed to redeem on that date, the mortgagee would be entitled to retain possession for another term of 13 years. This Court held that the provision should be enforced. Section 83 of the Transfer of Property Act had been passed before that mortgage was made, a provision which has made the redemption of mortgages much easier than before, but there was no such provision in force when the mortgage now in suit was made. The consequences of failure to redeem that mortgage on the day fixed were much less serious than in the case before us and in that case the mortgagor was to have an unfettered right to redeem at the end of 26 years, a period much shorter than the first term fixed by the mortgage now in suit. On these grounds that case may if necessary be distinguished from the present one.
10. But it is impossible to lay down a hard and fast rule as to what should and what should not be regarded as an improper restraint or fetter on the right of redemption. The decision in each case must depend upon its own circumstances. We are satisfied that the provision for redemption in the present instance was designed to make redemption very difficult if not impossible. The stipulation that the mortgage should not be redeemed with borrowed money, which is admittedly invalid, shows that the mortgagee intended to place every obstacle in the way of redemption.
11. The provision that redemption may take place on one day only in the course of 80 years is most oppressive. Many circum-stances might easily prevent redemption on that day, for example the illness of the mortgagor, the absence of the mortgagee, or the impossibility of discovering on account of. the recent death of either mortgagor or mortgagee what persons were entitled to redeem or to receive the mortgage money. The shorter the time during which the money is to be paid the more difficult does redemption become. It was conceded in argument that a provision making redemption possible only during two or three hours on a particular day during a long term of years should not be enforced. In our opinion the lower Appellate Court was right in refusing to enforce the provision for redemption in this case. We dismiss the appeal with costs.