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Patel Chaturbhai Valdas and ors. Vs. Heirs of Decd. Hirabhai Joitaram - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1973)14GLR357
AppellantPatel Chaturbhai Valdas and ors.
RespondentHeirs of Decd. Hirabhai Joitaram
Cases Referred(Heirs of Decd. Shah Devsinh v. Shah Shavaji Mulji
Excerpt:
.....structure on the plot mortgaged after spending any amount he liked, would amount to a clog on the equity of redemption. naturally, if the mortgagee is permitted to construct a hew building over the piece of land mortgaged to him and spend any amount he liked in his discretion, it will be beyond the means of the mortgagor to redeem the property after making payment to the mortgagee not only of the mortgage amount but payment of the construction made toy the mortgagee. this condition could not be equated with the condition in the bombay case where the mortgagee was permitted to make a new construction to any manner he liked and to spend any amount he liked: the term could therefore be enforced with the result that the suit was premature and must fail. it is undoubtedly true that if a..........years. the present plaintiffs are the heirs of devkaran jiva, husband of bai ugari. they filed the suit for redemption of the mortgage stating that as they were the debtors under the bombay agricultural debtors relief act, the debts stood extinguished on account of the failure of the creditor to file an application under the said act for adjustment of the debt. they, therefore, prayed for possession of the suit property from the defendants. the defendants filed written statement at ex. 14. they admitted that they were the heirs and legal representatives of patel joita punja. they, however, did not admit that bai ugari was the wife of devkaran jiva and that valji jiva, the father of plaintiffs nos. 1, 2, 3 and 4 and sangha jiva, father of defendant no. 5, were the brothers of patel.....
Judgment:

A.A. Dave, J.

1. This appeal is directed against the judgment and decree of the learned District Judge, Mehsana allowing regular Civil Appeal No. 5 of 1965 and setting aside the judgment and decree passed by the learned Civil Judge, Junior Division, Visnagar in Civil Suit No. 52 of 1962.

2. The appellants in the instant case are the original plaintiffs. One Patel Virchand Madheva had mortgaged the suit house to one Joita Punja, for Rs. 130/- on Posh Sud 9 of Samvat year 1962. On the death of Virchand, his daughter Bai Ugari inherited the properties of Virchand. On 15-9-1916, Bai Ugari again mortgaged the suit property with the said mortgagee Joita Punja for Rs. 400/- wherein it was agreed that the mortgage would be redeemed after 99 years. The present plaintiffs are the heirs of Devkaran Jiva, husband of Bai Ugari. They filed the suit for redemption of the mortgage stating that as they were the debtors under the Bombay Agricultural Debtors Relief Act, the debts stood extinguished on account of the failure of the creditor to file an application under the said Act for adjustment of the debt. They, therefore, prayed for possession of the suit property from the defendants. The defendants filed written statement at Ex. 14. They admitted that they were the heirs and legal representatives of Patel Joita Punja. They, however, did not admit that Bai Ugari was the wife of Devkaran Jiva and that Valji Jiva, the father of plaintiffs Nos. 1, 2, 3 and 4 and Sangha Jiva, father of defendant No. 5, were the brothers of Patel Devkaran Jiva. They denied that the condition in the mortgage deed fixing the period of 99 years for redemption was a clog on the equity of redemption. They denied that the plaintiffs were the debtors within the Bombay Agriculture Debtors Relief Act and their debt was not exceeding Rs. 15000/- on 31-3-1950. They stated that suit No. 97 of 1960 was filed by Ambalal Kakaldas for redemption of their mortgage claiming himself to be the heir of Bai Ugari wherein the present plaintiffs at their instance were joined as co-defendants. The suit was however withdrawn by Patel Ambalal Kakaldas with permission to institute a fresh suit on the same subject matter and that therefore, the present suit was not maintainable as the present plaintiffs had not obtained the permission to institute the fresh suit on the same subject matter. On the pleadings of the parties, the learned trial Judge framed several issues at Ex. 20. He decided issues Nos. 1, 2, 3 and 5 in the affirmative and issues Nos. 4, 6 and 7 in the negative. He held that the debt was not extinguished. According to him, the suit was not premature and that it was open to the plaintiffs to file the suit for redemption. He therefore, passed a decree accordingly. Against the said judgment and decree of the learned trial Judge, an appeal was preferred in the District Court, Mehsana and the learned District Judge set aside the judgment and decree of the trial court and dismissed the suit. Against the said judgment and decree of the learned District Judge, the original plaintiffs have preferred the present appeal to this Court.

3. Mr. M. B. Shah, learned Advocate for the appellants submitted that in the instant case, the mortgage was for a period of 99 years. Such a long period for redemption of the mortgage would amount to clog on the equity of redemption. The plaintiff could, therefore, ignore this condition and would be competent to file a suit for redemption. He urged that there was provision in the mortgage document permitting the mortgagee to make construction and therefore if the mortgagee made some construction on the mortgaged properly, it would be beyond the means of mortgagor to redeem the same and therefore, such a condition also would amount to a clog on the equity of redemption. Lastly, Mr. Shah urged that as the mortgagee had denied the title of the mortgagor in the suit property and had denied the existence of the mortgage deeds, it was open to the mortgagor to file a suit for redemption prior to the expiration of the period mentioned in the mortgage deed. He, therefore, urged that the learned District Judge was clearly in error in dismissing the suit on the ground that it was premature.

4. Mr. N.V. Karlekar, learned Advocate for the respondents on the other hand urged that a period of 99 years for redemption of the mortgage cannot amount to a clog on the equity of redemption. He stated that there was a provision in the mortgage deed permitting the mortgagee to make necessary repairs in order to maintain the property in tact. It did not give any discretion to the mortgagee to make any new construction in any manner he liked. He, therefore, stated that the submission made by the learned Advocate for the appellants that it would be beyond the means of the mortgagor to redeem the property if the mortgagee constructed a new house, would not arise. He admitted that the in the trial court, the defendants bad denied about the existence of the mortgage. However, in the district court, their Advocate had given up this contention and the appeal was heard on the basis that there was a valid mortgage. In order that, there may not be any room for doubt, Mr. Karlekar has produced a writing signed by all the respondents (defendants) stating that the mortgage document executed on 15-9-1916 is binding on them and that it would be open to the appellants to redeem the mortgage on the expiration of the period of 99 years mentioned therein.

5. In order to appreciate the submissions made by Mr. Shah, it will be worth while to refer to the mortgage document, Ex. 37. Ex. 37 is a certified copy of the mortgage document. This mortgage was executed by Bai Ugari, wife of Patel Devkaran Jiva on 16-9-1916 by which she created a further mortgage over the property on payment of a further amount of Rs. 205/-. It is mentioned in this document that no interest will be charged on the mortgage amount and the mortgagor will not be entitled to claim the land of the house which was mortgaged with possession to the mortgagee. There was a further condition that whatever expenses may have to be incurred towards the repairs of the house will be taken into account at the time of the redemption of the mortgage; that the period for redeeming the mortgage was fixed at 9/9 years and that it could be redeemed only on the expiration of that period. Thus, there is nothing in this document showing that it permitted thy mortgagee to make any new construction he liked. The submission made by Mr. Shah that if the mortgagee made any new construction, it would be beyond the means of the mortgagor to redeem the same, have, therefore, no basis. There is no reasons for the mortgagor to believe that the mortgagee would make a new construction over the mortgaged property and that the mortgagor would be burdened with the expenses incurred by him towards the reconstruction of the property. The only liberty given under the mortgage document is to make necessary repairs for the preservation of the property. It will not be open to the mortgagor to make any grievance because such a right is given to the mortgagee under the Transfer of Property Act itself.

6. Section 63A (2) of the Act says:

Where any such improvement was effected at the cost of the mortgagee and was necessary to preserve the property from destruction or deterioration or was necessary to prevent the security from becoming insufficient, or was made in compliance with the lawful order of any public servant or public authority, the mortgagor shall, in the absence of a contract to the contrary, be liable to pay the proper cost thereof as an addition to the principal money with interest at the same rate as is payable on the principal, or, where no such rate is fixed, at the rate of nine per cent, per annum, and the profits, if any, accruing by reason of the improvement shall be credited to the mortgagor,

Thus, even if no such condition had been incorporated in the mortgage document; by virtue of the provision of Section 63A (2) of the Transfer of Property Act, the mortgagee would have been entitled to recover any expenses incurred by him for the preservation oft the property. It cannot, therefore, be said by any stretch of imagination that the condition incorporated in the mortgage document pertaining to the expenses which may be incurred by the mortgagee for the preservation of the property, would amount to a clog on the equity of redemption. In my opinion, therefore, the submissions made by Mr. Shah in this connection are devoid of any merit.

7. Mr. Shah next urged that the period of 99 years fixed in the mortgage document for redemption of the property itself would amount to a clog on the equity of redemption. In support of his say, he referred to the case of Vadilal Chhaganlal Soni and Ors. v. Gokaldas Mansukh and Ors. : AIR1953Bom408 , wherein it was observed that:

In dealing with the question as to whether a long term for redemption is a clog on the equity of redemption, it is necessary to consider all the circumstances attending the execution of the mortgage deed. The amount advanced under the mortgage, the nature of the security offered by the mortgagor, the circumstances in which the mortgagor was compelled to secure the amount, the terms and conditions on which the amount was in fact advanced, and the other alternatives to which the mortgagor could have taken recourse for obtaining the sum advanced, would have to be considered before it is held that a particular term of redemption amount to a clog because it is unreasonably long.

In this case, the agreement between the mortgagor and mortgagee was that the mortgagor was to redeem the mortgage 99 years after its execution and the mortgagee was given full authority to build any structure on the plot mortgaged after spending any amount he liked. On these facts, it was held that:. the two terms of the mortgage were so unreasonable and oppressive that they amounted to a clog on the equity of redemption.

In my opinion, even though this case partially supports the submissions made by the learned Advocate for the appellants that very long period permitting the mortgagor to redeem the property, may amount to a clog on the equity of redemption in certain cases in view of the circumstances of each case, but this is not the authority on the point that merely because the mortgage is fixed for 99 years, necessarily such a long period would amount to a clog on the equity of redemption. In the Bombay Case, the Court held that a long period for 99 years coupled with condition permitting the mortgagee to build any structure on the plot mortgaged after spending any amount he liked, would amount to a clog on the equity of redemption. Naturally, if the mortgagee is permitted to construct a hew building over the piece of land mortgaged to him and spend any amount he liked in his discretion, it will be beyond the means of the mortgagor to redeem the property after making payment to the mortgagee not only of the mortgage amount but payment of the construction made toy the mortgagee. In the instant case, as already referred to earlier, the only condition incorporated in the mortgage deed was for payment of repair charges which the mortgagee may be required, to make for the preservation of the mortgaged property. As already seen, such a condition, is in consonance with the provisions of the Act itself. It cannot therefore be said that this condition could in any way amount to a clog on the equity of redemption. This condition could not be equated with the condition in the Bombay Case where the mortgagee was permitted to make a new construction to any manner he liked and to spend any amount he liked: Such a condition was rightly held to be a clog on the equity of redemption, by the Bombay High Court and with respect, I agree with the view taken therein. But in my opinion, mere long period fixed in the mortgage document for redemption of the mortgaged property would not amount to a clog on the equity of redemption in the absence of other circumstances enumerated in, the Bombay Case. I am supported in my view by the case of Ganga Dhar v. Shanker Lal and Ors. : [1959]1SCR509 , wherein it was observed that

in the circumstances, the term in the mortgage that it will not be redeemable until the expiry of 85 years was not a clog on the equity of redemption. The bargain was a reasonable one and the mortgagee had not taken any unfair advantage of his position as the lender. Nor was the mortgagor under any financial embarrassment. The term could therefore be enforced with the result that the suit was premature and must fail.

it will, thus be clear that merely because the mortgage document, Ex. 37 provided that the mortgage, cannot be redeemed before the expiry of 99 years, such a condition' can not be said to be unreasonable, and cannot amount to a clog on the equity of redemption. There is no evidence showing that the mortgagee had taken any unfair advantage of his position as a lender. Mr. Shah has been unable to show that merely because Bai Ugari was a woman, the mortgagee had taken an unfair advantage. There is nothing on record showing that she was in financial embarrassment. In my view, therefore, a mere condition fixing the period for redemption at 99 years cannot be said to be unreasonable and cannot amount to a clog on the equity of redemption.

8. Mr. Shah then referred to the unreported decision of this Court in Second Appeal No. 978 of 1961 decided on 6-2-1969 (Heirs of Decd. Shah Devsinh v. Shah Shavaji Mulji) therein Thakor, J. after considering both the Bombay High Court and the Supreme Court decisions, made the following observations:

The Court should not try to read the Judgment in a spirit of revolt, but should try as far as possible to appreciate the reasoning of that judgment. It is undoubtedly true that if a decision of the Supreme Court is cited before a Court which clearly weakens the authority of a decision, the Court should not hesitate to come to that conclusion. But in the present case, Their Lordships of the Supreme Court have used extremely cautious language when they have laid down the principle and that principle is that the length of the term which in that case was long enough being 85 years, itself could not lead to the conclusion that it was an oppressive term. If the Supreme Court had held that such a term could in no event be regarded as oppressive term then the position might have been different. In the Bombay case, ; there were two terms. One was a long term of 99 years and the other term was a ' different term. It is no doubt true that in the Bombay Case, Their Lordships also ; came to the conclusion that the long term for redemption conferred a collateral advantage which was unfair to the mortgagor, but that is not the ratio of the decision. In addition, Their Lordships also came to the conclusion that there was another term which also operated as a clog on the equity of redemption. Having discussed all this position, Their Lordships held that the two terms of the mortgage ' were unreasonable and oppressive and hence they amount to a clog on the equity of redemption.... The position, therefore, on the discussion of the law is that I have come to conclusion that the term in the mortgage is oppressive to the mortgagor. The second term is clearly oppressive to the mortgagor and it undoubtedly confers upon the mortgagee an advantage to which, in equity, according to me, he was not legitimately entitled.

9. In my opinion, this case is decided on its own facts. In this case also, there was a condition authorising the mortgagee to make a new construction of his choice. Taking this condition along with the long period of 99 years, it was decided that they were unreasonable and oppressive and would amount to a clog on the equity of redemption. In my view, this case does not lay down any proposition of law that mere long period for redemption of the mortgage prescribed in the mortgage document would itself amount to a clog on the equity of redemption. In the light of the Supreme Court decision referred to above, it cannot be said that mere long period prescribed in the mortgage document for redemption of the mortgage would amount to a clog on the equity of redemption. There is no other condition in the mortgage document which is oppressive or unreasonable. I, therefore, do not agree with the learned trial Judge that the period of 99 years would' work hardship on the mortgagor and that itself would amount to a clog on the equity of redemption.

Mr. Shah next urged that in the instant case, the defendants had denied the existence of the mortgage transaction. In other words, the defendants had denied the title of the mortgagors-plaintiffs. He, therefore, urged that in equity, the plaintiffs should be permitted to redeem the mortgage before the expiry of the period mentioned in the mortgage deed. As already observed earlier, this question no longer remains open. Mr. Karlekar, learned Advocate for the respondents-defendants has already produced a' waiting signed by defendants Nos. 1,2 and 3 stating that they abide by the mortgage document and that it would be open to the mortgagor to redeem ,the same on the expiry of 99 years. Under the circumstances, the question of giving equitable relief to the plaintiffs does not arise. Taking an over all picture of this case, I entirely agree with the learned District Judge that the suit filed by the plaintiffs for redemption of the mortgage is premature. The learned District Judge had, therefore, rightly dismissed the suit.

10. In the result, the appeal fails and is dismissed With costs.


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