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Soni Bhailal Damji Vs. Hiralal Lakhamshi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 502 of 1976
Judge
Reported inAIR1981Guj120; (1981)GLR473
ActsTransfer of Property Act, 1882 - Sections 59 and 60
AppellantSoni Bhailal Damji
RespondentHiralal Lakhamshi
Appellant Advocate K.N. Mankad and; A.K. Mankad, Advs.
Respondent Advocate J.R. Nanavati, Adv.
Cases ReferredMaganlal Chotalal Chhatrapati v. Bhalchandra Chhaganlal
Excerpt:
property - clog on equity of redemption - sections 59 and 60 of transfer of property act, 1882 - terms in mortgage document postponing right of redemption for number of years - it will not amount to clog on equity of redemption - additional conditions also mentioned in mortgage document - performance of such condition impossible after expiry of time mentioned in mortgage document - it would amount to clog on equity of redemption. - - the first term referred to the period of 99 years as duration of the mortgage as accompanied by a further term enabling the mortgagee in possession to make any changes in the said mortgaged property as he liked and to make any alterations and additions there to and a further provision was that after 99 years when the mortgagor went to redeem, he had to.....1. the heirs of the original-defendant of regular civil suit no. 201 of 1970 on the file of the learned joint civil judge, junior division, bhuj have filed this second appeal challenging the preliminary decree for redemption of suit mortgage as passed against the original-defendant by the trial court and as confirmed by the learned district judge in appeal. the respondent is the original plaintiff. 2. in order to appreciate the main controversy between the parties in the present proceedings, it is necessary to have a glance at certain relevant facts leading to the present litigation. the suit shop around which the dispute centres is situated near 'minara masjid' in bhuj town of bhuj district. the original owners of this shop were two brothers named memon suleman haji ayub and haji abdul.....
Judgment:

1. The heirs of the original-defendant of Regular Civil Suit No. 201 of 1970 on the file of the learned Joint Civil Judge, Junior Division, Bhuj have filed this second appeal challenging the Preliminary decree for redemption of suit mortgage as passed against the original-defendant by the Trial Court and as confirmed by the learned District Judge in appeal. The respondent is the original plaintiff.

2. In order to appreciate the main controversy between the parties in the present proceedings, it is necessary to have a glance at certain relevant facts leading to the present litigation. The suit shop around which the dispute centres is situated near 'Minara Masjid' in Bhuj town of Bhuj district. The original owners of this shop were two brothers named Memon Suleman Haji Ayub and Haji Abdul Sakur Ayub. The mortgage of the said shop with possession was effected in favour of one Soni Bhailal Damji who was the original-defendant in the Trial Court. The present appellants 2 to 8 are the children of original-defendant. The appellant No. 1 is his widow. The mortgage of the said shop in favour of original-defendant was entered into by the aforesaid two brothers for Rs. 4,000/- by a registered mortgage deed dated 17th July 1940. The mortgagee entered into possession of the suit shop after the execution of the aforesaid mortgage deed in his favour. Thereafter the mortgagee in possession, original defendant, inducted the present plaintiff-respondent as his tenant in the suit shop. The respondent-plaintiff thereafter purchased the equity of redemption of original mortgagors in the suit shop for Rs. 1,300/- by a registered document dated 14th February 1969 and then the present-respondent plaintiff filed Regular Civil Suit No. 201 of 1970 in the Court of the learned Joint Civil Judge Junior Division, Bhuj for redemption of the suit mortgage and contended that the two terms inserted in the original mortgage document in favour of defendant mortgagee by the original-mortgagors were unconscionable, oppressive and unreasonable. The first term referred to the period of 99 years as duration of the mortgage as accompanied by a further term enabling the mortgagee in possession to make any changes in the said mortgaged property as he liked and to make any alterations and additions there to and a further provision was that after 99 years when the mortgagor went to redeem, he had to pay all the expenses incurred by the mortgagee for the alterations and reconstructions made in the suit property. It was contended that both these terms were liable to be ignored by the Court and hence the plaintiff-respondent was entitled to pray for a decree for redemption within the period of limitation prescribed by the Limitation Act starting from the date of the original mortgage of year 1940. It was therefore contended by the respondent-plaintiff that his suit for redemption of the suit mortgage, notwithstanding the term of non-redemption for 99 years was not premature and was maintainable.

3. The original-defendant resisted the aforesaid suit of the plaintiff mainly on two grounds. Firstly it was contended that the suit was premature on account of a clear term for non-redemption of the suit mortgage from the date of its execution in 1940. It was further contended that the terms provided in the mortgage document did not amount to any clog on the equity of redemption and they were usual terms which were quite enforceable and legal. It was alternatively contended that even assuming that the impugned terms amounted to clog on the equity of redemption, even the said contention would be available to the original mortgagors and not to the plaintiff who was a purchaser of equity of redemption and was merely trafficking in litigation by purchasing somebody else's rights. In short, the contention on this aspect was that the plea available to the original-mortgagors to be relieved against clog on equity of redemption was a personal plea and was not available to the purchaser of equity of redemption from them. The learned Trial Judge who framed issues and recorded evidence of the parties came to the conclusion that both the main defences as put forward by the original-defendants were untenable. It was found as a matter of fact, on the evidence recorded by the learned Trial Judge that the economic condition of the mortgagors in the year 1940 was not sound and the impugned terms postponing the redemption for a period of 99 years as well as giving absolute right to the mortgagee in possession to make any changes in the suit property as he liked and the mortgagors being required to pay for all these construction charges to the mortgagee in case of redemption clearly showed that the poor mortgagors were prevailed upon and the impugned terms were inflicted on them and the mortgagors were not in a position to avoid these terms. It was therefore found by the learned Trial Judge on evidence that the mortgagors were forced to enter into all these terms in the document. Consequently these terms amounted to clog on the equity of redemption. It was further found by the learned Trial Judge that the plaintiff as a purchaser of equity of redemption from the original mortgagors was entitled to be relieved against the aforesaid clog on the equity of redemption and was therefore competent to file the suit within the prescribed period of limitation for redemption of the said mortgage starting from the date of execution of the mortgage.

4. As a result of the aforesaid conclusions reached by the learned Trial Judge, the usual preliminary decree for redemption of the suit mortgage was passed by him but as the respondent plaintiff was already in possession of the suit property, any further direction to hand over possession to him did not remain to be inserted in the preliminary decree. The aforesaid preliminary decree of redemption of the suit mortgage as passed against the original-defendant resulted in an appeal before the District Court of Kutch at Bhuj at the instance of the respondent-defendant mortgagee in possession. The said appeal was registered as Regular Civil Appeal No. 70 of 1973. Pending the said appeal, original-mortgagee-defendant expired and his heirs and legal representatives were brought on record and they prosecuted the appeal before the District Court. Ultimately their appeal came to be dismissed by the learned Appellate Judge who concurred with the findings of the learned Trial Judge.

5. The learned Appellate Judge concurred with the findings of the learned Trial Judge that the impugned terms in the mortgage document, Exhibit 37, amounts to clear clog on the equity of redemption. The evidence showed that mortgagors were prevailed upon and were forced to enter into the mortgage document including all these terms as their economic condition was unsound at the relevant time. The learned Appellate Judge also negatived the contention of the defendant that the plaintiff, the purchaser of equity of redemption from original mortgagors, was not entitled to allege that the impugned terms amounted to clog on the equity of redemption. Thus negativing the two main contentions raised by the heirs of original-defendant in their appeal before him, the learned Appellate Judge dismissed the appeal of the heirs of the original defendant and confirmed the preliminary decree as passed by the learned Trial Judge.

6. The dissatisfied heirs of original-defendant have now come to this Court by way of present second appeal.

7. Mr. K. N. Mankad, the learned Advocate appearing for the appellants i.e. heirs of original-defendant, raised the following two contentions in support of the present second appeal.

1. That the impugned terms in the original mortgage document, Exhibit 37, did not amount to any clog on the equity of redemption and hence the suit was filed by the respondent-plaintiff was premature.

2. It was alternatively submitted by Mr. K. N. Mankad for the appellants that even assuming that the impugned terms in the original mortgage document did amount to clog on the equity of redemption, even then the present plaintiff who was a mere transferee and a purchaser of equity of redemption from the original mortgagors could not contend to be relieved of the aforesaid clogs an the equity of redemption and so far as he was concerned he was bound by these terms.

8. Mr. J. R. Nanavati, the learned advocate appearing for the respondent-plaintiff, supported the decree of both the Courts below. So far as the first contention of Mr. Mankad is concerned, it is necessary to have a look at the actual terms inserted in the original document of mortgage, Exhibit 37. As stated above the original owners of the suit shop which was situated on the main road in Bhuj town had executed the suit mortgage on 17th July 1940 by a registered document for Rs. 4.000/-. The said document is at Exhibit 37 on the record of the case. The relevant terms in the mortgage document which have given rise to this heated controversy between the parties read as under. (Original in Gujarati here omitted.-Ed.)

When translated, these relevant terms read as under.

'We authorise the mortgagee (the person advancing the monies) to make whatever additions or changes as he thinks proper for his convenience. We also authorise him to change the existing condition of the shop or to put up floor over it. The expenses which he may incur for the same shall be payable by us and they will be debited to our account so far as the mortgaged shop is concerned. The mortgaged will be entitled to incur all these expenses in his own right. After the period of non-redemption of 99 years is over, when we, the executants (mortgagors) shall go for redemption of the mortgage and for releasing the mortgage shop from the mortgagee, we shall be liable to pay Rs. 4,000/- which are due under this document of mortgage to the mortgagee. We shall also be liable to pay whatever expenses and amounts which the mortgagee would have spent on the mortgaged shop and the mortgaged property shall become releasable to us only on our paying all these amounts after making the aforesaid accounts and on payments of all these amounts at a time, the mortgaged property shall become redeemable by us.'

9. The aforesaid terms of the mortgage document, clearly show that for 99 years the mortgage was not redeemable and during that time the mortgagee was given absolute right to spend any amount he liked on repairs, additions and alterations and changes in the suit shop which he would like to make according to his own convenience and for his own benefit. Thus an absolute right was conferred on the mortgagee in possession to completely alter the mortgaged shop if he so chose in his discretion and whatever amount he sought to sink towards the reconstruction and renovation of the suit shop including putting up higher upper floor was made payable by the original mortgagors after the expiry of 99 years when they went to redeem the mortgage. It goes without saving that after this long period of 99 years when the heirs of the motgagors ever choose they which meantime incurred on the suit shop during the long period of 99 years and which expenses which include even those for building, remodelling or restructuring of the suit shop from top to bottom. Thus the mortgagee in possession over the long period of 99 years was authorised to completely change the suit shop and to spend any amount of money for that purpose, the only limitation being that he should do so for his own personal benefit and convenience. It is in the background of these two terms that the question which is posed for consideration of this Court will have to be answered and the question is whether these two terms acting and reacting on each other create a situation in which the original mortgagors and also their heirs and assigns have been reduced to a position of helplessness in which the right of redemption of the suit mortgage has become practically a myth and an illusion. If it is so, it is obvious that these terms together would clearly operate as a clog on the equity of redemption especially when appreciated in the light of the attendant circumstances in which the original mortgagors were placed when they were required to enter into the suit mortgage transaction in the year 1940 in favour of the original-defendant.

10. It is now well settled by decisions of various High Courts including this Court as well as the Supreme Court that mere term in the mortgage document postponing the right of redemption for a given number of years, may be after 50, 60 or 80, by itself will not amount to a clog on the equity of redemption. But if such a condition of non-redemption for a number of years is coupled with any other condition that authorises the mortgagee in possession in the meantime to so convert the property mortgaged as to make it practically impossible for the original mortgagors to redeem this property, the term prescribed as the long period of non-redemption when read in the context of other such terms and when viewed in the background of attendant circumstances which gave rise to the mortgage transaction reflected by the concerned mortgage document which included such terms would amount to a clear clog on the equity of redemption. Before I turn to various authorities cited by both the learned advocates in support of their respective submissions, it is necessary for me to note certain admitted and proved facts on the record of this case. It is in the background of these facts that the question that has been posed for consideration of this Court will have to be decided. The learned Appellate Judge while concurring with the findings reached by the learned Trial Judge has taken the view that the original bargain between the mortgagors on the one side and the defendant-mortgagee on the other side in 1940 and which has been reflected by the mortgage document, Exhibit 37, was unconscionable. It has been found as a matter of fact that the mortgagors were hard pressed and were in poor economic condition and were really in difficulty at the time when they borrowed money by mortgaging the suit shop. The learned Appellate Judge has confirmed the findings reached by the learned Trial Judge on this aspect and as mentioned in paragraphs 14 to 18 of the judgment of the learned Trial Judge. A mere glance at those findings reached by the learned Trial Judge in paragraphs 14 to 18 of his judgment shows that the evidence on the record of the case reveals that the mortgagors were oppressed and were imposed upon by the mortgagee to enter into the original mortgage transaction as reflected by Exhibit 37. It has been noted by the learned Trial Judge that the mortgage amount of Rs. 4,000/- was borrowed by the mortgagors for their household domestic expenses and business. Thus not only the mortgage amount was taken for the business but also for household expenses. It shows that they were required to get money by mortgaging the shop even for running their household. That position of the mortgagors showed that they were hard pressed economically and they were in difficulty in those days. Even, apart from this recital in the mortgage deed Exhibit 37, the learned Trial Judge relied upon oral evidence of various witnesses examined by both the sides. The learned Trial Judge relied upon the evidence of plaintiff's witness, Nenshi Nathubhai, Exhibit 50, who clearly deposed that monetary condition of Suleman, that is the executant of the mortgage, Exhibit 37, was not sound. The learned Trial Judge also relied upon the evidence of plaintiff's witness No. 3, Lalji Parshottam, Exhibit 51, when he stated that Suleman was doing satta business and he was also doing other business. The financial condition of Suleman was unsound and in S. Y. 1996 A. D. 1940, Suleman suffered loss in satta business. It has been further deposed by this witness that Suleman suffered loss to the tune of about Rupees 10,000/- to Rs. 12,000/- koris in those days and he had not paid any amount to his creditors in his presence. The learned Trial Judge relying on the evidence of these witnesses drew the inference that the financial condition of Suleman was not sound in the year 1940 when he executed the mortgage document, Exhibit 37, in favour of the original-defendant mortgagee in possession. The learned Trial Judge also relied upon the deposition of defendants' own witnesses, Alimamad Sulemamad. Exhibit 83. The said witness was a caste fellow of co-mortgagors of Exhibit 37 and his brother's daughter was also married to a son of co-mortgagor Suleman. The witness stated that Suleman was doing business of grocery and was also dealing in hides. The other co-mortgagor was at Moracious and he was also slightly hard pressed for money. The witness further stated in the crossexamination that Suleman was entering into wagering contracts. He did not pay to his creditors and in S. Y. 1996, i. e. in 1940 A. D., his monetary condition was very weak. He heard that he had sold all his property and the other co-mortgagor Abdul was hardly maintaining himself at Moracious. Thus defendants' own witness Alimamad clearly admitted that in the year 1940 monetary condition of both the mortgagors were very weak and one of the co-mortgagors was hardly maintaining himself at Moracious. Relying on the evidence of this witness, the learned trial Judge came to the conclusion on facts that the economic condition of both the co-mortgagors was very weak at the relevant time. The learned Appellate Judge has noted in para 14 of his judgment that he entirely agreed with the reasons given by the learned trial Judge for concluding that the mortgagors were oppressed and were hard pressed at the time of execution of the suit mortgage. The learned Appellate Judge has further noted that the learned advocate for the appellants was not able to point out anything from the reasons given by the learned trial Judge for showing that the findings on these questions were erroneous and not supported by evidence on record. In the background of these findings of the poor economic condition of the co-mortgagors at the relevant time as reached by both the Courts below, it has to be decided as to whether these two terms included in the mortgage document together amounted to clog on the equity of redemption or not. It is obvious that when poor mortgagors who were in lot of economic difficulties, and when one of them had to migrate to other country and was hardly maintaining himself there, while the other brother was incurring losses in Satta business and was not in a position to pay his creditors, entered into the suit mortgage transaction in 1940 they would be clearly oppressed by the money lender who was able to prevail upon them and was out to get favourable terms inserted in the document which these mortgagors were required to execute to get Rs. 4,000/- for meeting their household expenses and for business.

11. Mr. Mankad, the learned advocate appearing for the appellants, submitted that all these findings as reached by both the Courts below show that the mortgagors were in poor economic condition but there was no evidence to prove that the mortgagors were prevailed upon or oppressed by the mortgagee in making them agree to the impugned terms inserted in the document, Exhibit 37. It is difficult to accept the aforesaid submission of Mr. Mankad. Once it is held that at the relevant time in the year 1940 the mortgagors were in a poor economic condition and were hard pressed for money, and they approached the defendant mortgagee, who had monies to advance to poor people. It goes without saying that between the two parties, the mortgagee was in a position to dominate the will of the mortgagors. He was having a stronger bargaining power. The needy Persons, i.e. the mortgagors, would naturally succumb to whatever terms even oppressive that the mortgagee would like them to agree to. Under these circumstances an inference of fact is inevitable that these needy mortgagors who required money to run their house and business were prevailed upon by the mortgagee to agree to the terms of his own choice. Thus in the background of these attendant circumstances which, prevailed at the relevant time, the impugned terms clearly show that the mortgagee moneylender had prevailed upon the mortgagors and oppressed them to enter into this mortgage and these two terms in juxtaposition clearly created a situation in which the mortgagors and the heirs would be virtually deprive of their property as 99 year's period is not a small period. When viewed in the background of the attendant circumstances which prevailed in 1940, it must be held that these terms were imposed upon by the mortgagee on the needy mortgagors. It goes without saying that but for these terms, the mortgagee would not have advanced Rs. 4,000/- to these needy mortgagors in 1940. There is no other reason why the mortgagors would have agreed to get these terms inserted in the document, Exhibit 37. The combined effect of both these terms is that for 99 years the mortgagors would not be able to redeem and for that matter even their heirs would not be permitted to get the mortgage redeemed before 99 years and in the meantime, the mortgagee or even his heirs have been given a complete license or liberty to sink any amount in the suit shop as they liked and to practically convert it into any better building which suited them and their convenience. And even though they sank any amount of money for improving and for even remodelling and reconstructing the structure including putting an upper story, the heirs of the mortgagors were liable to pay the entire amount of expenses incurred by the mortgagee or his heirs for this type of reconstruction of the suit shop before they can dream of redeeming it even after the expiry of 99 years period. Thus the original amount, the money advanced by the mortgagee, Rs. 4,000/- would vale into insignificance as during the period of 99 years the mortgagee would have spent any amount as he liked on the suit shop for converting it into a super structure as suited to him or his heirs. And even though the structure was entirely changed at the cost of any fabulous amount, all these amounts were required to be paid by the mortgagors or their heirs after 99 years when they chose to get their mortgaged suit shop redeemed. This would clearly show that the poor mortgagors and their heirs were completely excluded from their right of redemption of the suit mortgage by the interaction of these two terms. Thus the two terms aforesaid in the background of the attendant circumstances as they prevailed in 1940 when the mortgagors were required to agree to these terms, clearly amount to clog on the equity of redemption. These terms practically nullified the right of equity of redemption which notionally remained with the original mortgagors. Consequently the impugned terms must necessarily amount to clog on the equity of redemption. Both the Courts below, therefore, were quite justified when they held that these two terms acting and reacting on each other and when viewed in the light of the surrounding and attendant circumstances as they existed in 1940, clearly amounted to clog on the equity of redemption, and reflected an unfair advantage that the mortgagee in possession had taken of the needy mortgagors.

12. Mr. Mankad in order to meet this situation contended that the learned Appellate Judge has not considered all the relevant aspects of the matter and had simply adopted the reasoning of the learned Trial Judge in paragraphs 14 to 18 of his judgment. This grievance of Mr. Mankad is not justified. In para 14 of his judgment, the learned Appellate Judge has considered the salient features which emerged from the discussion of the learned Trial Judge and adopted the reasoning given by him as found in paragraphs 14 to 18 of the Judgment of the learned Trial Judge. When the learned Appellate Judge was affirming the decree passed by the learned Trial Judge and was in total agreement with the reasoning of the learned Trial Judge, he was not required to repeat all the reasoning once again in his judgment. It is further interesting to note that the learned advocate for the appellants before the lower appellate Court was not able to point out any infirmity in the findings of the Trial Court, when the appellate Judge concurred with the finding of the Trial Court that the mortgagors were oppressed and prevailed upon and that they were made to agree to these impugned terms as found in the document, Exhibit 37. The Appellate Judge also considered the effect of the impugned terms. He found that the authority given to the mortgagee to make any superstructure, additions, alterations and changes in the property during 99 years had pernicious tendency, the reason being that if the mortgagee spent any fabulous amount or substantial amount towards these additions and alterations, which were to be made for his own happiness and convenience, then the mortgagors would not be in a position to pay for it and they would never be able to redeem the mortgage. Therefore the learned Appellate Judge considered both these conditions as unconscionable and unreasonable. The learned Appellate Judge further found that the impugned conditions were not innocuous ones enabling the mortgagee to make such repairs as would be necessary for keeping the property safe and in a tenantable condition, but on the contrary, the impugned terms gave the mortgagee up any superstructure as he liked and to spend any amount he liked. He, therefore, took the view that these conditions had an effect of permanently restraining the mortgagors from redeeming the suit property. Mr. Mankad cannot therefore say that the learned Appellate Judge has not applied his mind when he held that the impugned two terms were a clog on the equity of redemption. Mr. Mankad then submitted that the original mortgagor was already dead at the time when the present suit was filed but he had left three sons and none of his sons was examined by the plaintiff to show that the original mortgagor was oppressed by these terms and that too at the instance of the mortgagee in possession. Even this submission of Mr. Mankad is of no avail to him. The original-mortgagors are already dead and gone prior to the filing of the present suit. Their children can have no personal knowledge about the condition which prevailed in 1940 when their respective fathers were required to suffer the terms included in the mortgage deed, Exhibit 37. Thus non-examination of persons who had no personal knowledge cannot be of any significance whatsoever. On the contrary the plaintiff had examined the near relatives of the executants who had first hand knowledge about the economic condition of the mortgagors in 1940 and their evidence was believed by both the Courts below. Consequently the grievances voiced by Mr. Mankad pertaining to non-examination of the sons of original mortgagor is of no consequence. Mr. Mankad further submitted that the evidence showed that subsequent to the mortgage transaction, Exhibit 37, the mortgagors themselves had taken two properties by way of usufructuary mortgage by a registered document, Exhibit 75, for a lessor amount. Mr. Mankad therefore contended that the mortgagors cannot be said to be in poor economic condition at the relevant time; otherwise they would not have taken these two residential Properties in Bhuj town by way of possessory mortgage. Even this submission of Mr. Mankad cannot be countenanced. It is necessary to note that by Exhibit 75 Suleman, one of the co-mortgagors had himself taken two residential houses for 9,500 koris by way of mortgage from the owners of those properties. But they were residential houses. That shows that he was in need of having a residential premises for the use of his large family. That is the reason why he entered into the aforesaid transaction. That does not mean he was in an affluent condition. If he was in such an affluent condition, there was no reason for him to mortgage the suit shop pursuant to the document Exhibit 37. The learned trial Judge in paragraph 17 of his Judgment has considered this aspect and held that after the suit property was mortgaged with the defendant, in about 25 days, Suleman took on mortgage a house for 9,500 koris. Now Suleman mortgaged the suit property for Rupees 4,000/- which was equivalent to about 22,800 koris at that time. However, the house mortgaged with Suleman under document Exhibit 75 was only for 9,500 koris. Thus it was probable that Suleman might have taken on mortgage the house from the amount which he received from the defendant as he took a house on mortgage only after about 25 days after he mortgaged the suit property with the defendant. Thus it could not be said that the economic condition of Suleman was very sound in those days. On the contrary, he seemed to have taken a residential accommodation out of the mortgage amount of Rs. 4,000/- which he received pursuant to transaction Exhibit 37. The learned Trial Judge, therefore, found that this circumstance was not sufficient to hold that Suleman was in a sound economic condition in 1940 when he entered into the said transaction. The said reasoning was approved by the learned Appellate Judge who concurred with. Mr. Mankad cannot request this Court to reappreciate the evidence on this aspect drawing of an inference of fact from a given circumstance on the record of the case pertains to the domain of appreciation of evidence. When both the Courts below have considered this aspect and have held that mere execution in favour of Suleman of mortgage deed Exhibit 75 for 9,500 koris was not enough to show that Suleman was in a good economic condition in those days, the aforesaid finding of fact cannot be upset by this Court in this second appeal by reappreciating the evidence as Mr. Mankad would like me to do. In that view of the matter, it must be held that both the Courts below were justified in taking the view that the impugned terms did amount to clog on the equity of redemption when Judged in the context of the surrounding circumstances that prevailed in 1940 when the co-mortgagors executed document Exhibit 37 in favour of the original defendant-mortgagee-in-possession.

13. I shall now turn to a brief resume of the various authorities cited by the learned advocates of both the sides in Support of their rival contentions. Mr. Mankad drew my attention to the decision of the Supreme Court in the case of Ganga Dhar v. Shankar Lal, reported in AIR 1958 SC 770. It has been held in the aforesaid decision that the rule against clogs on the equity of redemption is that, a mortgage shall always be redeemable and a mortgagor's right to redeem shall neither be taken away nor be limited by any contract between the parties. The Courts will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage. It has been further observed in the aforesaid decision that Courts have always relieved mortgagors from bargains whereby the right to redeem has not been taken away, but restricted, and the reason justifying the Court's power to relieve a mortgagor from the effects of his bargain is its want of conscience. Putting it in more familiar language the Court's jurisdiction to relieve a mortgagor from his bargain depends on whether it was obtained by taking advantage of any difficulty or embarrassment that he might have been in when he borrowed the moneys on the mortgage. Was the mortgagor oppressed? Was he imposed upon? If he was, then he may be entitled to relief.

14. Relying upon the aforesaid decision of the Supreme Court, Mr. Mankad submitted that in the present case there was no evidence that the mortgagor was oppressed or imposed upon by the mortgagee. As I have already discussed above, both the Courts below have relied upon oral and documentary evidence to show that the economic condition of the mortgagors was not sound in those days and the very two impugned terms in the document clearly show that they were prevailed upon and oppressed by the mortgagee money-lender. Both the Courts below have drawn necessary inferences of fact from the (sic) and admitted position as emerging on the record of the case. Hence it must be held that the mortgagors were oppressed and imposed upon by the mortgagee money lender in 1940 when he advanced Rs. 4,000/- to the mortgagors on the security of the suit shop.

15. Mr. Mankad further submitted that in the case of Ganga Dhar v. Shankar Lal (AIR 1958 SC 770), the Supreme Court has further held that a mere provision of 85 years period of non-redemption would not by itself show that any unfair advantage was taken by the mortgagee as lender of monies. While considering this aspect, the Supreme Court has very clearly stated in para 17 of its judgment in Ganga Dhar's case (supra) that the mere length of the time by itself would not lead to the conclusion that it was an oppressive term. But it was not necessary to say that the length of the term of the mortgage can never by itself show that the bargain was oppressive and they did not desire to say anything on that question in that case on facts before their Lordships of the Supreme Court. It was found that nothing was pointed out to them to show that the length of the term was in any way disadvantageous to the mortgagor in that case. Thus it is not as if the Supreme Court has ruled that Period of 85 years of non-redemption can never amount to clog on the equity of redemption. It all depends upon the facts and circumstances of the case and context and the term enabling the mortgagee to do necessary repairs in the mortgage Property will also have to be judged accordingly as found in Ganga Dhar's case (supra). The Supreme Court observed that looking to the small size of the shop mortgaged in that case, it was not possible to spend larger amount on repairs or construction thereof and necessary repairs were contemplated by the instrument and hence it could not be said that such a term as found in Ganga Dhar's case enabled the mortgagee to do fabulous changes in the mortgaged property. It is difficult to appreciate how the aforesaid decision of the Supreme Court can be of any avail to Mr. Mankad. In the present case it has been found that the period 99 years as seen in the background of the factual position that prevailed in 1940 and especially when the mortgagee was given an absolute right to make any construction, renovations etc. in the suit shop clearly amounted to a clog on the equity of redemption and made it impossible for the mortgagors or their heirs to redeem this property even after 99 years. Thus the aforesaid decision of the Supreme Court instead of helping Mr. Mankad really goes against him.

16. Mr. Mankad then invited my attention to a decision of this Court reported in 14 Guj LR 357 : (AIR 1973 Guj 93) in the case of Patel Chaturbhai Valdas v. Heirs of Deceased Hirabhai Joitaram. A. A. Dave, J. has taken the view that merely because the mortgage document provided that the mortgage cannot be redeemed before the expiry of 99 years such a condition cannot be said to be unreasonable and cannot amount to a clog on the equity of redemption. Even this decision can be of no avail to Mr. Mankad. It goes without saying that mere provision of a long period of non-redemption may not amount to clog on the equity of redemption in the absence of other surrounding circumstances which may be existing at the relevant time. Such a term when coupled with the further term that in the mean time any reconstruction or changes can be effected by the mortgagee in possession at his sweet will and the entire costs thereby will have to be borne by the mortgagors on redemption will clearly change the very complexion of the entire matter and inevitably lead to the conclusion that these terms taken together would amount to a clog on the equity of redemption.

17. In the case of Patel Chaturbhai Valdas, (supra) the mortgage document did not include any other term save except the term of non-redemption for 99 years and taken by itself the said term may not amount to clog on the equity of redemption. The aforesaid decision can be of no avail to Mr. Mankad as in the present case the term for non-redemption for 99 years does not stand alone but is supplemented by a pernicious term enabling the mortgagee in possession to change the entire complexion of the mortgaged property in the meantime by spending any amount that he liked and all these amounts will have to be paid up by the mortgagors before they can dream of redeeming the suit property even after 99 years.

18. Mr. Mankad also invited my attention to certain unreported judgments of this Court. He first took me to the judgment of N. G. Shelat, J. delivered in Second appeal No. 1041 of 1960. The learned Judge has taken the view that a mere provision of 99 years of non-redemption in the circumstances may on the equity of the view taken by A. A. Dave, J. in the case of Patel Chaturbhai Valdas (AIR 1973 Guj 93).

19. Mr. Mankad also invited my attention to the unreported decision of this High Court delivered by Obul Reddi, C. J. and A. M. Ahmadi, J. in Second Appeal No. 525 of 1971 wherein Ahmadi, J. speaking for the Division Bench has held that in case of mortgage of agricultural lands, a mere term of 99 years of non-redemption and a provision for necessary repairs to be carried out by the mortgagee may not amount to clog on equity of redemption. It is clear that the facts of the aforesaid case are totally different from the facts of the present case. Here the impugned terms when viewed in the background of poor economic condition of mortgagors in 1940 certainly amount to a clog on equity of redemption as they make future redemption of suit mortgage practically impossible for the mortgagors as the mortgagee during the long period of 99 years of non-redemption is permitted to make any construction of his choice is the suit shop and to practically convert it form its existing structure as he like and the entire expenses which he might have incurred for the said renovations and reconstructions were required to be paid first by the mortgagors before they can dream of redeeming the suit mortgage. These well established facts were totally absent in cases dealt with in the aforesaid unreported decisions relied upon by Mr. Mankad.

20. On the contrary, in the case of Maganlal Chotalal Chhatrapati v. Bhalchandra Chhaganlal, reported in (1974) 15 Guj LR 193, P. D. Desai, J. has held that the doctrine of clog on the equity of redemption means that no contract between a mortgagor and mortgagee made at the time of mortgage and as a part of the mortgage transaction would be valid, if it in substance and effect prevents the mortgagor from getting back his property on payment of what is due on his security. It is held that any such bargain which has that effect is invalid and inconsistent with the transaction being a mortgage and has no binding force. It cannot be enforced or be made a basis of defence in a suit for redemption. It is further held that if the Court on an examination of the circumstances of the case comes to the conclusion that the disputed covenant is so unduly harsh and unconscionable that it nullifies for all practical purpose the right of redemption or restricts the exercise of the said right in such an unreasonable manner as to practically deny it the Court will relieve the mortgagor of his bargain. It has been further held in the aforesaid decision that the long term of non-redemption is not necessarily or in every case a clog on the equity of redemption but may on a consideration of all the circumstances attendant on the execution of the mortgage deed amount to a clog on the equity of redemption. It would be necessary in this context to consider amongst other circumstances as to what was 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. The aforesaid decision of this Court clearly applies to the facts and circumstances of this case. The facts of this case leave no room for doubt that the mortgagors were oppressed because of their poor economic condition when they were made to agree to the impugned terms covered by the mortgage document, Exhibit 37, when the mortgagee advanced them Rs. 4,000/-. For all practical purposes the impugned conditions acting and reacting on each other had practically made null and void the equity of redemption the mortgagors had in the suit property. Consequently the impugned terms cannot be treated as anything else but clog on the equity of redemption.

21. A Division Bench of this Court consisting of Obul Reddy, C. J. and Ahmadi, J. in its judgment in First Appeal No. 529 of 1973 delivered on 4-11-1976, had an occasion to consider almost similar terms as found in the present case, namely, that the mortgagee in possession was entitled to make any construction which he liked on the mortgage property and he was entitled to demolish the same. This term was also coupled with a further term of 99 years of non-redemption. Both these terms taken together were held to amount to clog on the equity of redemption. Obul Reddy, C. J., while delivering the judgment in the aforesaid case held that the terms in the case before the Division Bench were very oppressive and indeed unconscionable. The decision of the Supreme Court in Ganga Dhar's case (AIR 1958 SC 770) (supra) was distinguished by holding that the mortgaged property in Ganga Dhar's case was very small. It was further held that the very fact that the mortgagee was permitted to demolish the building or to put up an upper story as he desired or wished went to show that he had taken advantage of the mortgagor's financial difficulties. It is obvious that similar terms are found in the present case and they must be treated as clog on the equity of redemption as per the aforesaid Division Bench decision of this Court.

22. The very same Division Bench in a later judgment in Second Appeal No. 534 of 1974, dated 8-11-1976 took the view that the term in the mortgage deed providing non-redemption for 99 years clearly amounted to clog on the equity of redemption when viewed on the background of attendant circumstances as emerged on the record of that case.

23. In an unreported judgment delivered by R. C. Mankad, J. in Second Appeal No. 17 of 1975 dated 11-4-1979 (Guj), it has been held that the poor economic condition of the mortgagor when viewed in the light of the impugned conditions included in the mortgage deed would show that these conditions were imposed upon the mortgagor by the mortgagee concerned. The said decision of R. C. Mankad, J. of this Court has been confirmed by the Supreme Court when special leave petition No. 8933 of 1979 against the said judgment was dismissed by the Supreme Court on 18-3-1980. While delivering judgment in Second Appeal No. 491 of 1976 (Guj). M. K. Shah, J. has taken the view that a term of 99 years of non-redemption coupled with a stipulation in the mortgage deed that the mortgagee was free to incur any expenses for repairs, and was further free even to demolish the entire structure and reconstruct the same from the foundation, and put up not only the ground floor but an upper floor also, and that the mortgagor would be bound to pay all such expenses incurred at the time of redemption of mortgage made the conclusion inescapable that the mortgagor was oppressed and was imposed upon and that the transaction was unreasonable and unconscionable one and that these conditions constitute a clog on the equity of redemption because the covenants earlier referred to are unduly harsh and unconscionable and they nullify for all practical purposes the right of redemption or restrict the exercise of the said right in such an unreasonable manner as to practically deny the same and the mortgagor was, therefore, entitled to be relieved of the bargain, which bargain in substance and effect prevented the mortgagor from getting back the property on payment of what is due on the security. Even this decision of M. K. Shah. J. has been confirmed by the Supreme Court when special leave petition No. 496 of 1977 against the said decision came to be dismissed on 18th March, 1980. The resume of the aforesaid decisions cited by both the learned advocates of the respective parties leaves no room for doubt that the impugned terms in the present case when viewed in the background of the proved attendant circumstances that prevailed in 1940 clearly amounted to clog on equity of redemption and were liable to be totally ignored while deciding the question of the right of the mortgagor or their successors to redeem the suit mortgage within the prescribed period of limitation. The first contention of Mr. Mankad, therefore, has got to be repelled.

24. That takes me to the alternative contention of Mr. Mankad. He submitted that even assuming that the impugned terms are unconscionable and amounted to clog on equity of redemption, the original mortgagor or his heirs can contend to that effect but not the present plaintiff who has purchased the equity of redemption from the original mortgagors and is merely trafficking in litigation. He by document, Exhibit 38 dated 14-2-1969 purchased for Rs. 1,300/- the right of equity of redemption from the original mortgagor and therefore he should not be permitted to contend that the terms in the original mortgage deed amounted to a clog on equity of redemption. It is difficult to appreciate this submission of Mr. Mankad. It must be stated that the present plaintiff who has purchased the right of equity of redemption in the suit property from the original mortgagor by a registered document, steps in the shoes of the original mortgagor. In view of Section 59(a) read with Section 60 of the Transfer of Property Act, the present plaintiff for all practical purposes, becomes the mortgagor. Even under Section 91 of the Transfer of Property Act, he will be entitled to redeem as he has interest in the mortgaged property. Mr. Mankad has no quarrel with this legal position but his submission is that when it comes to the question of relieving the mortgagor concerned of the unconscionable terms on the ground that they amounted to clog on equity of redemption public Policy steps in and prevents stranger purchasers of equity of redemption rights from original mortgagors from contending that the original terms in mortgage deed amounted to clog on equity of redemption. Mr. Mankad stated that he was not in a position to cite any decision on this aspect nor could he rely on any statutory provision to show how the right of the purchaser of equity of redemption to sue for redemption gets stultified. He fairly stated that if the impugned terms of non-redemption was not there in the original document, the present plaintiff would have been perfectly justified in suing for redemption within the period of limitation. But he says that the period 99 years of non-redemption cannot the gone behind by the present plaintiff who was a stranger purchaser of the equity of redemption right in the suit property. It is difficult to appreciate how the plaintiff who is a purchaser of equity of redemption from the original mortgagors can be deprived of his legal and statutory right to sue for redemption. The present plaintiff cannot be styled as a person who is trafficking in litigation. In fact he is seeking to exercise the right of equity of redemption conveyed to him by the original mortgagors and he is executing his right under Secs. 59 and 60 of Transfer of Property Act. It is not the contention of Mr. Mankad for the heirs of the defendant that the plaintiff was not entitled to purchase the equity of redemption from the original mortgagor. It is therefore difficult to appreciate how he can style him as a person trafficking in litigation. He is entitled to file a suit for redemption as a purchaser of equity of redemption. Mr. Mankad could not point out any ground on which the present plaintiff would not be entitled to file the suit and to contend that the original terms amounted to clog on equity of redemption. No estoppel can be pleaded against the plaintiff on that aspect and in fact no such estoppel is pleaded by the defendant against him. In that view of the matter it is difficult to accept the submission that the present plaintiff should be prevented from contending that the original terms amounted to clog on equity of redemption. Once it is held that plaintiff as a purchaser of equity of redemption has a right to file the present suit for redemption of mortgage any incidental question as to whether such a suit is premature or not especially when such a question arises out of the defence of the mortgagee defendant has got to be decided by the Court. The plaintiff in such a case is entitled to demonstrate how his suit is not premature as the period of non-redemption as provided by the mortgage deed is a clog on equity of redemption and is ab initio null and void and non est. It is necessary to keep in view that once a contention is raised that a term of non-redemption for a given number of years in the original document amounts to a clog on equity of redemption, if it is so found. It will have no effect, and will be treated as a stillborn term and will be null and void from the very inception. Such a term is to be considered in the light of attend ant circumstances which prevailed at the relevant time when the concerned mortgagor was prevailed upon by the mortgagee to enter into the impugned term. Once that fact is established, the term becomes non-existent from the very inception. It is difficult to appreciate why the purchaser of the equity of redemption cannot agitate this question to successfully counter the defence of the mortgagee in possession that the suit is premature on account of such a term. There is nothing personal about this contention as Mankad tried to suggest. Whether a given term amount ed to clog on equity of redemption or not has to be judged in the light of attendant circumstances that might have existed when the said term saw the light of the day. Such a contention can be raised in any suit redemption properly instituted by the plaintiffs who may be mortgagors or who may be the heirs and legal representatives of the original mortgagors or who may be transferees of the mortgagors rights of equity of redemption in the mortgaged property at the relevant time when the suit is filed. Once the plaintiff shows that he, as a purchaser equity of redemption from the original mortgagor, has sufficient locus standi to file the suit for redemption, he is entitled to show that his suit is not premature for the simple reason that the term of non-redemption as included in the original mortgage deed was inoperative from the very inception being a clog on the equity of redemption. It is difficult to appreciate how this contention cannot be raised by the purchaser of equity of redemption from the original mortgagor. Of course for such a purchaser of equity of redemption, it would be necessary to show by leading satisfactory evidence before the Court that the impugned terms which were entered into at the relevant time really amounted to oppression by the mortgagee of the concerned mortgagors executants. But once he is able to show this by leading cogent evidence pertaining to attendant circumstances prevailing at the relevant time, it cannot be said that the benefit of such a finding would not be available to the purchaser of equity of redemption from the original mortgagor. It is difficult to appreciate what public policy is involved in not permitting the purchaser of equity of redemption to show that his suit is not premature as the term of non-redemption as mentioned in the original mortgage document amounts to a clog on the equity of redemption. As a purchaser of equity of redemption, he is entitled to show that the equity of redemption which he has purchased is untrammelled by any such clogs. The second contention of Mr. Mankad therefore has got to be repelled as it is not backed up by any statutory provision or even by any equitable consideration. The said contention was rightly repelled by both the Courts below. Mr. Mankad could not successfully reagitate that question before me. In the result both the submissions made by Mr. Mankad in support of the Second Appeal fail. The inevitable result is that this second appeal also fails and is dismissed with no order as to costs in the facts and circumstances of the case.

25. Appeal dismissed.


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