1. On 18th Maghar Samvat 2000 B. K., i.e. on some date in 1943, Babu Ram mortgaged with possession his vacant land measuring 11 Marlas for Rs. 385/- in favour of Parma Nand. The right of redemption was deferred by 59 years and the mortgagee was given right to construct a house without fixing any limit on the cost of construction and it was agreed that at the time of redemption, the mortgagee would be entitled to the cost of construction along with the interest at the rate of 6 per cent per cent per annum together with the mortgage amount. As regards the interest on the mortgage amount, it was equal to the rent of the mortgaged site. The mortgagee is alleged to have constructed the house on the vacant site by spending Rs. 6,000/- sometime after the creation of the mortgage. In spite of seeing that the mortgagee was constructing the house and the cost of construction was disproportionate to the mortgage amount, the mortgagor allowed the normal period of limitation of 30 years to expire and kept quiet till the expiry of the limitation. It was only on 15-4-1975 that he filed a suit for redemption wherein it was pleaded that the condition of 59 years and of constructing the house without specifying any upper limit regarding the cost of construction and for payment of such costs along with 6 per cent interest thereon, to be paid at the time of redemption, amounted to clog on the equity of redemption and sought to be relieved of the aforesaid clauses. The mortgagee contested the suit and pleaded that the terms of the mortgage were not unconscionable. 30 years prior to the filing of the suit he had constructed a house after spending Rs. 6000 /- and since no condition was onerous or was a clog on equity of redemption, the suit was premature. Both the Courts below decreed the suit for redemption after recording a finding that the conditions were oppressive and amounted to clog on the equity of redemption. However, the trial court had found that the mortgagee had spent Rs. 2500/- on improvement and passed a preliminary decree for redemption on payment of the mortgage amount plus the amount of improvements; whereas the lower appellate Court enhanced the amount spent to Rs. 2700/-. This is defendants second appeal in this court.
2. After hearing the learned counsel for the parties and on perusal of the record, I am of the view that this appeal deserves to succeed. Till before the judgment in Ganga Dhar v. Shankar Lal, AIR 11958 SC 770, was rendered, there was some divergence of opinion whether the term in the mortgage that it will not be redeemable until the expiry of certain years would or would not be a clog on the equity of redemption, but after the aforesaid decision, it has been made clear that postponement of date of redemption even for 85 years by itself, would not be a clog on the equity of redemption because in that case the equity of redemption was deferred until the expiry of 85 of years. In that case, the additional clause was that after the expiry of 85 years, redemption would be permissible within a period of six months and incase the redemption is not obtained within six months, then the mortgagor shall have no claim over the mortgaged property and the mortgagee shall have no claim to have the mortgage money, nor to the expenses in regard to repairs that may be due at the time of default. In such a situation, the mortgage deed will be deemed to be a sale deed and there will be no need of executing a fresh sale deed. It was also argued that the expenses spent on the repairs and new constructions will be paid along with the mortgage money at the time of redemption according to the accounts produced by the mortgagee. In spite of the additional clauses it was held that the postponement of redemption by 85 years was not a clog on the equity of redemption. The clause regarding the mortgage being considered as a sale in the event of non-redemption of he mortgage within a period of six months after the expiry of 85 years, was considered to be severable and this clause was held to be a clog and was struck down. Regarding the clause of making repairs and new construction and providing for payment of the costs thereafter by the mortgagee to the mortgagor, at the time of redemption was not dealt with. In any even, this cause was not held to be a clog on the equity of redemption either disjunctively or conjunctively with the clause of postponing the redemption for 85 years.
3. On the facts of the present case, whether on terms of the mortgage the same can be held to be a clog on the equity of redemption or not, has become academic, because the mortgagor has come to court to seek redemption after the expiry of the period of limitation within which he could seek the determination about the terms and conditions of the mortgage being clog on the equity of redemption. The mortgage was created in the year 1943 and the suit for redemption has been filed on 15th April, 1975. The limitation of 60 years was reduced to 30 years by the Limitation Act of 1963. However, by the amended Act which was further amend twice, wherever the limitation was reduced by the limitation Act, 1963, the suit could be filed within 7 years of the enforcement of the limitation Act of 1963 or within the period prescribed by the Indian Limitation Act, 1908, whichever period expires earlier, (See S. 30 of the Limitation Act of 1963). On this basis, the suit could be filed by 31st Dec., 1970. This would be shorter than 30 years, limitation provided by the 1963 Act, and, therefore proviso to S. 30(a) would apply and the suit for redemption could be filed till 18th Maghar Samvat 2030 BK, which would bring the matter to some date in the year 1973. Obviously, the suit filed in 1975 for redemption in the absence of the clause, which deferred the redemption by 59 years would be barred by time. Several cases were brought to my notice by the counsel for the mortgagee including Ganga Dhar's case, (AIR 1958 SC 770) (supra). In all these cases the suits for redemption were filed within limitation to be counted from the date of mortgage and even one case was not brought to my notice, where suit may have been filed beyond the limitation, to be calculated from the suit of mortgagor but within the time prescribed for redemption in the mortgage deed. Therefore, it is clear that if the mortgagor himself allowed the ordinary period of limitation to expiry to seek redemption, after the expiry of limitation, he can only file a suit on the basis of the deferred date of redemption under the terms of the mortgage, which would be within time but he would not be entitled to say in such a suit (when filed beyond the period of limitation, to be counted from the date of the mortgage) that the deferred date of redemption amounts to clog on the equity of redemption and should be so held. Therefore, if the mortgagor wanted to avoid the deferred clause of 59 years on the plea of clog on the equity of redemption, he had to file a suit for redemption within 30 years from the date of the mortgage and if he had done so, the question of deferred date of redemption, whether it was clog or not, could be gone into. Accordingly, I hold on the aforesaid reasoning that the mortgagor is not entitled to urge that the deferred date of redemption by 59 years along with other terms of the mortgage amounts to clog on the equity of redemption and he should be relieved therefrom. Court will come to the rescue of an aggrieved person only if he comes in time. In a suit filed in 1975 when the limitation for redemption had expired in 1973, decree for redemption cannot be granted. This reasoning should not be understood to mean that even if the mortgagor files a suit for redemption within 30 years, to be calculated after the expiry of 59 years, the time fixed under the mortgage deed, that suit would be dismissed as time barred. On the aforesaid process of reasoning, all that is to be held in this case is that the suit is premature and the mortgagor would be entitled to file a suit for redemption within the limitation only after the expiry of the condition of 59 years as stated in the mortgagee deed by which the right of redemption has been deferred.
4. Assuming for the sake of arguments, that even in a suit brought beyond 30 years limitation, to be calculated from the date of the execution of the mortgage, the mortgagor was entitled to urge that the clause of 59 years coupled with other clauses amounts to clog on the equity of redemption and the suit was not premature on the aforesaid reasoning. I am of the view that on the facts and circumstances of this case, there is no clog on the equity of redemption. As ready noticed the mere deferring of the right of redemption for any number of years, up to 85 years, would not by itself be a clog on thee equity of redemption in view of the decision of the highest Court in Ganga Dhar's case, (AIR 1958 SC 770) Supra). It is the mortgagor's case that this clause coupled with other two clause amounts to clog on the equity of redemption. In this case, the site measuring 11 Marlas was mortgaged and the right of redemption was deferred by 59 years, the open plot was allowed to be used by the terms of the mortgage by raising construction thereon and the cost of construction along with interest at the rate of 6 per cent per annum was to be paid by the mortgagor to the mortgagee together with the mortgage amount at the time of redemption. The argument is that there was no limit fixed for spending money on the plot while raising construction and it may be that the mortgage spends amount of such an extent i.e., in lacs which the mortgagor may not be able to pay back to him at the time of redemption and this would amount to clog on the equity of redemption. In Ganga Dhar's case (supra) certain English decisions have been referred to. The underlined rule contained in English decisions was that while creating a mortgage the mortgagor is in a compelling circumstances and is not a free man and to answer a present exigency will submit to any term which the creditor may impose upon him. Therefore, whenever a mortgagor will come to court by specifically pleading the dire deed for which he needed the money and the compelling circumstances and his plea that he was not a free man perforce had to accept the conditions imposed by the creditors and on being satisfied thereof court may relieve him of the unreasonable part of the mortgage., Hence, it is always a matter of facts and circumstances of each case and not hard and fast rule can be laid.
5. Adverting to the present case, no such plea was raised nor any evidence was led. Hence it cannot be said that the mortgagor was in a compelling circumstances due to any exigency and was not a free man and perforce had to accept the terms imposed on him at the time of taking of loan.
6. As already noticed wherever a mortgagor is able to satisfy the Court on the facts pleaded and proved as to what was the exigency and the compelling circumstance, due to which he was not a free man and perforce was bound to accept the unreasonable conditions imposed by the creditors the court merely believed such a plea on being satisfied. Support, in case the mortgagor does not need money, but as a clever person creates mortgage of his vacant land and defers the redemption by number of years, up to 85 years, and agree that the mortgagee can construct without any limitation of expenses under the guise that soon after the construction would be completed, he would file a suit for redemption on the plea that the number of years as also the term for construction without any limitation of expenses was clog on the equity of redemption. He stands by and allows three storeyed house to be completed without raising any objection and files the suit after completion of the building. Would the court of justice or equity grant relief to such a person. My answer would be no. therefore, as already noticed, each case has to be seen on its own facts. In the present case, as already said, even remotely it has neither been pleaded nor proved that the term of construction on the plot in dispute without any limitation of expenses, was procured by the mortgagee by taking undue advantage of the situation in which the mortgagor was placed. Once that is so, this term on the facts of this case cannot be held to be onerous or unreasonable.
7. Coming to the exact facts brought on the record in the present case, the mortgagee had pleaded that he had spend Rs. 6,000/- on the construction. The trial court found that he had spent Rs. 2500/- on the construction. That part of the trial Court decree was no challenged by the mortgagor. Therefore, payment Rs, 2500/'-according to the mortgagor was not onerous or unreasonable.
8. The mortgagee went up in appeal and the lower appellate court enhanced the cost of construction to Rs. 2700/-. For this part of the decree no challenge has been made by the mortgagor in the second appeal. Therefore, payment of Rs. 2700/- also on the facts and circumstances of this case cannot be held to be onerous or unreasonable. Hence, on this additional ground I hold that the amount of Rs. 2700/- spent by the mortgagee on the construction cannot be held to be onerous or unreasonable.
9. It was then urged on behalf of the mortgagor that since the suit for redemption is being held to be premature, by the time the mortgagor files a suit for redemption after the expiry of the period of 59 years, the mortgagee may have raised so much of construction, which may be of lacs of rupees, and this may stand in the way of the mortgagor for seeking redemption. This matter also does not present any difficulty in this case. The mortgagor had filed an application during the pendency of this appeal to restrain the mortgagee from raising any new construction till the decision of the appeal. On that matter, by order dt. 26th Oct., 1983 on the concession given on behalf of the mortgagee it was ordered that if he raises any construction in future, he should do so without any right to claim compensation on that account from the mortgagor. Even today, before me it has been stated by the learned counsel for the mortgagee that his clients would be entitled to only that much amount of compensation, which would be now fixed by the court in regard to the construction already made, and the mortgagee would not claim any further amount for the construction, which he may have made during the pendency of this appeal, or may make till the suit for redemption is filed. Under the circumstances, the mortgagor will not be liable to pay any thing beyond that amount of Rs. 2700/- in regard to the cost of construction, which on his own showing is neither unreasonable nor onerous because the same has remained unchallenged on his behalf.
10. The next, condition is payment of 6 per cent interest on the costs of construction. Whether this condition would amount to clog or not is left open to be gone into when suit for redemption is filed.
11. For the reasons recorded above, this appeal is allowed, the judgments and decrees of the courts below are set aside and the suit for redemption is held to be premature, and the plaint is rejected. The right to seek redemption will arise only on the expiry of 59 years from the date of creation of the mortgage. However, parties are left to bear their own costs.
12. Appeal allowed.