I.N. Modi, J.
1. This is a second appeal by the plaintiffs appellants Chandanmal and another in a suit for redemption. The suit has been dismissed by both Courts below.
2. The appellants are descendants of the mortgagors. The respondents are said to be the descendants of the mortgagees. The relevant pedigree tables were recited in the plaint. The plaintiffs' case is that the suit house was mortgaged by their ancestor Bhuta to Manakchand, Birdichand, Shivchand and others by a mortgage deed dated Kali Vadi 3 of Smt. of 1936 (corresponding to some time in 1879 A.D.) for a sum of Rs. 430/5/-Akheshahi coin which was stated to be equivalent to Rs. 269/6/- in Indian rupees.
The mortgage was usufructuary, and it was stipulated between the parties that the house would carry no rent and the money no interest. The plaintiffs appellants further alleged that when they gave notice to the defendants lespondents to redeem the suit house, the latter declined to give redemption by saying that the parties to the mortgage had agreed to postpone redemption for a period of 99 years, and, therefore, any claim for redemption was premature. Consequently, the plaintiffs brought the present suit in the Court of the Mun-siff Jalore on 18th December, 1951, for possession of the suit property by redemption on payment of the sura of Rs. 269/6/- only.
3. The defendants raised a number of pleas but it is unnecessary to make any specific mentionof all of them, and it is sufficient to say that their main plea was that the original mortgagors had agreed not to redeem the mortgage before a period of 99 years and consequently the plaintiffs' suit was premature.
The defendants also pleaded that the suit property before it had been mortgaged to their ancestors was merely in the form of a plot which had been mortgaged by the ancestors of the plaintiffs to somebody else and that the ancestors of the defendants had helped the ancestors of the plaintiffs to redeem that mortgage and at the same time obtained the mortgage in their own favour, which was agreed between the parties not to be redeemable before a period of 99 years.
It was further pleaded by the defendant that under such circumstances the ancestors of the defendants had invested considerable money in building on this plot so that they might be able to use it for their own residential purposes, and therefore it was claimed that the plaintiffs were not entitled in equity to redeem the property before the expiry of the stipulated period of 99 years.
The defendants further pleaded that their ancestors had rebuilt the entire house and invested a sum of Rs. 1169/8/- therein and that they were further entitled to interest at 6 per cent p. a. on the amount so invested on the construction of the house but they assessed the entire interests at a round figure of Rs. 650/- only and thus the defendants claimed that they were entitled to receive Rs. 1819/8/- in addition to the mortgage money of Rs. 269/6/-.
Apart from that, the defendants also claimed damages at the rate of Rs. 48/- per year for 26 years (being the balance of the stipulated period)to the tune of Rs. 1128/-, and claimed that they were thus entitled to a sum of Rs. 3217/1/- in all in the event of redemption being decreed in favour of the plaintiffs appellants.
4. In their replication the plaintiffs pleaded that the postponement of redemption for a period of 99 years was a clog on the right of redemption, and, therefore, they were within their rights to claim redemption before the expiry of that limit. They also claimed that the kind of right of making improvements which was given to the ancestors of the defendants was unreasonable and oppressive.
The plaintiffs further contended that the defendants had not spent any sum like Rs. 1168/8/- as improvements with respect to the suit house nor were they entitled to charge any interest on it. It was also contended that the defendants' claim for compensation for premature redemption was entirely untenable inasmuch as the postponement of redemption for a period of 99 years was a clog on the equity of redemption and no damages could be claimed for relief against such a condition.
5. The trial Court framed seven issues in all. In the first instance it decided issues Nos. 6 and 7 one of which related to the payment of court-fees by the defendants with respect to the cost of improvements claimed by them, and the other was concerned with the effect of the omission of the signature of one of the plaintiffs on the plaint. After these issues were decided, the trial Court took up issue No. 1 for decision, which was whether the postponement of the right of redemption of themortgage for a period of 99 years was a clog on the equity of redemption and, was therefore illegal and inoperative.
Both parties appear to have been content to argue that issue as a preliminary issue of law and no evidence was sought to be led. The trial Court came to the conclusion that the plaintiffs appellants' suit was premature. On appeal, the learned Civil Judge, Balotra, affirmed the judgment of the Court below. The present appeal has been filed by the plaintiffs appellants from the last mentioned judgment and decree.
6. The sole question for determination before me is whether the condition that the mortgagors will not be entitled to redeem the mortgage for a period of 99 years is tantamount to a clog on the equity of redemption and is, therefore, unenforceable in law, and the plaintiffs appellants are entitled to bring a suit for redemption of the suit property before the expiry of that period.
7. Now, before discussing this legal question, I should like to mention certain other circumstances and conditions of the mortgage which have a bearing on the question for decision before me. It appears from the recitals contained in the mortgage that this plot of land had been mortgaged to one Hindu Balaji for a sum of Rs. 45/-; and this sum was arranged to have been paid to Hindu Balaji through the ancestors of the defendants.
It also appears that a sum of Rs. 316/5/- was further spent by the ancestors of the mortgagees before the mortgage in question was executed for making certain constructions on the plot, and a further sum of Rs. 69/- was advanced in cash to the ancestors of the plaintiffs. This is how the sum of Rs. 430/5/- in Akhey Shahi was made up.
Then it was mentioned that the mortgage was to be usufructuary, and no rent was to be payable in lieu of the possession of the house and no interest for the mortgage money. It was then mentioned that the redemption of the suit house would be postponed for a period of 99 years. The mortgage deed further recited that a roof had to be put on the 'Barsali' and a door was required to be fixed to the entrance and that Medies and Malias (that is, rooms) were required to be built, and so all the expenditure that would be incurred on these improvements would be a charge on the house.
It was further stipulated that the mortgagors would execute a fresh deed for all such expenditure incurred on the construction of medies and malias and other improvements etc. and that if they failed to do so, the mortgagors would be bound to accept the debit raised against them in this connection in the 'Chopania' of the mortgagees.
Lastly it was mentioned that the mortgagors would not be entitled to redeem the house until and unless they cleared off the mortgage money along with the expenditure incurred on the improvements which were indicated in the deed. It is remarkable that though some description of the kind of improvements which were required to be made was given in the mortgage deed, this was not by any means very precise and in any case the amount which might be so invested on the various additions and alterations in the house was left more or less at large and not limited to any precise amount of money.
8. It is in these circumstances that the question arises whether the postponement of redemption of the mortgage in the present case amounts to a clog on the equity of redemption, and whether the decision of the Courts below that it does not so amount is correct.
9. I may state at once that a large number of cases were placed before me by either side to enable me to decide the question which I have formulated above. I confess that it is impossible to reconcile all these cases. With all respect I am not at all sure whether any useful purpose would be served by discussing these cases in detail.
The principal authorities on which learned counsel for the plaintiffs-appellants relied were Fanidar Khan v. Abdul Samad, AIR 1924 Lah 129 (A); Durga Charan v. Poresh Bewa, AIR 1925 Cal 105 (B); Fateh Md. Khan v. Ram Dayal Singh, AIR 1927 Oudh 224 (C); Bhullan v. Bachcha Kunbi, AIR 1931 All 380 (D); Har Dayal v. Raja Ram, AIR 1933 Oudh 460 (E) and V. C. Soni v. Gakaldas, AIR 1953 Bom 408 (F).
On the other hand reliance was placed by learned counsel for the defendants respondents on Muhamed Ibrahim v. Muhomed Abiz Kroshi, 8 Ind Cas 1068 (Mad) (G), (wherein a limit of 90 years was held not to be a clog), Abdulla v. Saadulla Khan, 15 Ind Cas 917 (Punj) (H) (where a period of 150 years was not held to be a clog), Narain Das v. Debi Din Singh, AIR 1926 Oudh 38 (I) (where a period of 200 years was not held to be a clog), Jagannadham v. Narasimham, AIR 1944 Mad 501 (J) (where a period of 60 years was held to be good), Hira Sukharam v. Sitaram Madhav, AIR 1949 Nag 12 (K), in which a period of 75 years was considered not to amount to a clog, Hasar Ali v. Ajodhya Sah, AIR 1950 Pat 173 (L), wherein a period of 95 years was held not to amount to a clog and lastly Shankar Lal v. Ganga Dhar, AIR 1951 Ajmer 28 (M), where a postponement of the right of redemption for a period of 85 years was held not to amount to a clog on the equity of redemption.
10. On a careful examination of all these authorities, I have come to certain conclusions which may be briefly summed up somewhat like this :
1. The right to redeem is an essential element of a mortgage. This is tersely and forcefully expressed in the maxim 'once a mortgage always a mortgage'.
2. A mortgagor cannot contract himself out of this right by the deed by which he has made the mortgage as that would clearly rob the mortgage of its essential characteristic, namely, the right to redeem. (See Section 60 of the Transfer of Property Act in this connection.)
3. It follows as a corollary from what has been stated above that any conditions entered in the deed of mortgage which would destroy the right of redemption appertaining to and inherent in it or anything which puts onerous impediments in the way of redemption of the mortgage are not favoured in law, and the mortgagors should be relieved against them.
4. It has been generally held by the Courts in India that the postponement of the right of redemption, for a large number of years by itself and without more does not amount to a clog on theright of redemption. It seems to me that far longer periods have been accepted as not amounting to clog by the Courts in India as contradistinguished from similar periods in England. This view, to my mind, has been the outcome of the consideration that it is open to a mortgagor to redeem his mort-gage within a period of 60 years from the date of the mortgage in our country. Consequently, periods upto 60 years (and sometimes even longer periods) have been freely held not to amount to a clog on the right of redemption unless they are accompanied by other conditions which taken together with the length of the postponement of redemption make the whole matter a clog, but generally not otherwise.
5. Subject to what I have stated above, itwould be a question of fact dependent on the factsand circumstances of each case as to whether theconditions complained against in a mortgage amountto a clog on the right of redemption or not.
11. This appears to me to be a fair summing up of the law on the subject as it emerges from a study of the case law which has been placed before me, and which I have tried to gather.
12. Now, having regard to the essential characteristics of a mortgage, I may state at once that it is too late in the day to contend that if a mortgagor agrees to postpone the redemption of his mortgage so that the right of redemption is for ever destroyed or is seriously impeded or obstructed, he would be precluded from relying on the doctrine of the clog on redemption to protect his right to redeem, and so the first question which arises in this connection is whether the period of 99 years which is stipulated in the mortgage does or does not amount prima facie to a clog.
As I have already pointed out above, the period permitted by the English Courts in this connection is comparatively very short, namely, 5 or 7 or 10 years. But the Courts in our country have generally and rightly permitted longer periods than this as not amounting to a clog on the equity of redemption, Still the question arises whether the length of the period itself can in certain cases not amount to a clog.
Let us take an extreme case. Suppose the parties to a mortgage agreed to the postponement of a right of redemption being exercised for a period of 800 years. Can it be justly said that this is a reasonable period? I think not. The postponement of the right until very long periods, in my humble judgment, has a tendency to considerably impede the exercise of the right of redemption at the actual time when it may be resorted to, if it does not ac-tually destroy it, by the lapse of the intervening period.
The original mortgagors and the original mortgagees are dead in the meantime and perhaps their sons and grandsons and great grandsons are also dead. The boundaries of the properties also become changed owing to changes in the ownership of the surrounding properties. Particularly in our part of the country the mortgagor has not a scrap of paper in his possession in support of his right to redeem, and even the deed of mortgage which has been executed by the mortgagor, is in the hands of the mortgagee.
Having regard to all these considerations, I am disposed to think, with the greatest respect to the contrary opinion held in some of the cases cited above, that to say that howsoever long the postponement of the right of redemption may be, that by itself will never amount to a clog on the equity of redemption ii a proposition which is too sweeping in its character and admits of little rational justification.
One cannot also ignore the possibility in this connection that with the passage of time the documents of title may be lost and the mortgagees' descendants may under certain circumstances be justly believing that the property redemption whereof is sought belongs to them through their ancestors, and in other cases they may be bent upen raising false pleas of adverse possession and the like.
The long postponement of the period of redemption certainly facilitates and is bound to facilitate the perpetrators of fraud on innocent but necessitous borrowers. It, therefore, seems to me that even as the law stands, we should strike a middle course and while we may not consider a period of 5, 7 or 10 years only as reasonable, it is certainly going too far to hold that a period of 99, 150 or 200 years per se does not prima Facie amount to a clog on the equity of redemption.
Again, speaking for myself, I am disposed to consider that any period upto 60 years appears to me to be long enough for this purpose and that being the period of redemption permitted to the mortgagor to redeem under the law as it stands, any period over and above that should not be held to be permissible as not amounting to a clog except under very special circumstances.
If I may say so with utmost respect, this aspect of the case does not seem to have received the emphasis which it deserves with the result that postponement of the right of redemption for long periods extending up to a period of a 100 years or over has also been upheld to be good and not open to exception although there is no gainsaying the position that such long and unreasonable postponement has a definite and marked tendency to seriously impede the right of redemption if not to destroy it in the sequel.
13. Haying regard to what I have stated above, I am disposed to hold that the period of 99 years fixed by the parties in the present case was unreasonably long and was, in view of its long duration, likely to destroy the right of redemption, and, at any rate, seriously to hamper it, and therefore prima facie amounts to a clog.
14. Even if the view that I have felt persuaded to propound above is not accepted as correct in view of the current of authority holding otherwise, I am further of the view that there are other conditions with respect to this mortgage which taken together with the limit of 99 years might make the redemption extremely difficult in the present case if not impossible at the end of the period of 99 years.
I have already summarized these conditions in the foregoing part of my judgment. To briefly recapitulate them, the original mortgagor apart from agreeing to a term of 99 years for redemption gave an almost unlimited right to the mortgagees tomake such improvements as they liked in the suit house.
It is true that an effort was made to specify some of the improvements but all the same I have no hesitation in saying that this attempt at specification of the improvements desired was in its ultimate effect futile. The number of Medies and Malias was not mentioned nor was the quantum of expenditure to be incurred thereon limited.
It was, therefore, left purely to the sweet will and pleasure of the mortgagees to spend as much money as they liked on the house. It was also agreed that whatever expenditure would be incurred on the constructions to be made, the mortgagor would execute a new deed for all such expenditure and that if no such deed were to be executed by the mortgagor, the amount spent by the mortgagees would have to be accepted by the mortgagor, and until the entire amount consisting of the original mortgage money and the improvements so made was paid off by the mortgagor, the latter would not be entitled to redeem.
I have carefully considered the position arising out of these conditions, and I find it extremely difficult to avoid the conclusion that the conditions agreed to by the mortgagor taken all in all are highly exacting and may make the redemption almost illusory. The defendants respondents have already raised certain claims which prima facie seem to go beyond the terms of the mortgage, but I shall say nothing about them inasmuch as the suit has yet to be tried as respects these additional claims, and it will be for the Courts below to consider them on the merits and adjudicate on them.
I have thought fit to refer to this matter only to show how the matter of redemption is likely to become more and more involved and complicated if the postponement of the term of redemption of the mortgage is allowed as good even for very long periods such as 99 years. It may be said that after all the mortgagees have not spent thousands of rupees by way of construction on the plaintiffs-appellants' house, and they have claimed only a sum of about Rs. 2000/- in this connection.
The correct test, however, to ascertain whether certain conditions in a mortgage deed have the effect of clogging the right of redemption or not is not to look to the events as they have happened or as they have not happened but to see whether such conditions might have happened in the past or may happen in the future.
There is still a period of 21 years for the full term of 99 years to pass, and it is impossible to anticipate what further expenditure may be incurred by the mortgagees on the plaintiffs-appellants' house, and what further claim it may be possible for them to raise at the expiry of 99 years when a suit for redemption may come to be filed.
15. Having regard to what I have stated above, it clearly seems to me that the mortgagor or his legal representatives have been thrown entirely at the mercy of the mortgagees, and that the long period of 99 years taken together wtih the more or less unlimited right to make improvements on the suit house conferred upon the mortgagees under the mortgage deed is so mischievous in its tendency that if it may not actually destroy the right of re- demption at the expiry of 99 years, it might make the right of redemption extremely difficult to secure. I also fail to understand why it should have been necessary for the original mortgagor to postpone redemption for a period of 99 years in order to be able to secure a loan of about Rs. 270/- in Indian money. That to my mind shows that the mortgagors were very poor people at the time they made the mortgage, and it would be hard lines indeed if their descendants, unless they have blossomed into luck in the meantime are called upon to pay 10 or 15 times (and may be even more) the money which they took from the mortgagees in order to be able to redeem the mortgage.
16. For the reasons mentioned above, I am of opinion that the term as to the postponement of the right of redemption for a period of 99 years taken with the other conditions mentioned in the deed amounts to a clog on the equity of redemption.
17. It was next argued on behalf of the defendants respondents that the plaintiffs have filed their suit after a long period of 72 years and that as they have brought their suit after such a long time, they should not be held entitled to the equitable relief of being allowed to redeem the property in suit until the full term of 99 years stipulated in the deed had expired.
Reliance was placed in support of this contention on Bhika v. Sheikh Amir, AIR 1923 Nag 60 (N). It was held in this case that the relief against an agreement forming a clog on the equity of redemption could only be obtained if such agreement was impeached within a reasonable time.
It was further observed that premature redemption was an equitable relief, and that it could not be granted as a matter of course and as the agreement was impeached in that case after 40 years, it was refused. The short answer to this argument, in my judgment, is that the right to redeem in this country is not a matter of mere equity but is a statutory right, and it is no good answer to say that a suit to avoid the defeat of such a right has been brought after a long time.
The right to redeem under Section 60 of the Transfer of Property Act is not capable of being qualified by any contract to the contrary, and where this right is imperilled, I am clearly of opinion that a suit to obtain relief from such a peril should not be thrown out on the mere ground that it has been brought after a good deal of delay. I, therefore, overrule this contention and hold that the suit of the plaintiffs appellants cannot be thrown out merely on the ground that it has been brought after a long time of the execution of the mortgage in question.
18. Consequently, I allow this appeal, setaside the judgments of the Courts below and hereby direct that the case shall go back to the trialCourt with a direction that it shall decide theother issues raised in the case and then decide thesuit on the merits. Having regard to all thecircumstances of the case, I would leave both partiesto shoulder their own costs upto this stage but further costs in the trial Court will abide the result.As the point involved in this case is of importance,and as there is no authority of our own Court, Iconsider it is a fit case for grant of leave for specialappeal, and I allow it accordingly.