1. The suit was filed by the first respondent for the redemption of a usufructuary mortgage dated 10-6-1871. The period of redemption prescribed under this document is 240 years. The present suit was filed in 1969 after expiry of a period of 98 years. The plaintiff's case was that the period of 240 years prescribed under the document is a clog on redemption. In the plaint he pleaded that the suit was within time on the ground that there was an acknowledgment of liability under Ex. A-1 of the year 1946 and later by payment of kist in respect of the suit property in the name of the mortgagor. But at the hearing, the plaintiff was not able to rely on any acknowledgment of liability. But it was contended that until the court in this suit relieves the mortgagor of the clog in the mortgage document it could not be said that the right to redeem or recover possession had accrued and the period of redemption had commenced. It is this contention that was accepted by the courts below. The courts below held that the period of 240 years fixed under the document was a clog on redemption; but the suit was within time.
2. The learned counsel for the appellant in this case challenged the finding that the terms fixed under the document amounted to a clog on redemption and he referred to the decision of the Supreme Court in Gangadhar v. Shankarlal, wherein on facts it was held that the period of 85 years fixed in that case did not amount to a clog on redemption. He also contended that even if it is to be held that it is a clog on redemption, the right to redeem or recover possession accrued to the plaintiff from the time when the mortgage deed was executed and since the suit was filed more than 60 years from the date of mortgage and since there was no acknowledgment of liability, it is clearly barred by limitation. The learned counsel for the appellant is well founded in this contention.
3. Under Art. 61, Cl. (a) of the Limitation Act, 1963, corresponding to Article 148 of the old Limitation Act, a suit by a mortgagor to redeem or recover possession of immovable property mortgaged had to be filed within 30 years from the date when the right to redeem or recover possession accrues to the plaintiff. Ordinarily, the right to redeem or recover possession accrues when the principal money due under the document had become due. If the document had not fixed any period for payment, the mortgage money becomes due from the date of the mortgage itself and in cases where a date has been fixed under the document for payment, it becomes due on the expiration of the specified period unless that terms is held to be invalid as a clog on redemption. Under S. 60 of the T. P. Act, at any time after the principal money has become due the mortgagor has a right on payment or tender to require the mortgagee to deliver possession. This right of redemption on payment of money is a statutory right which cannot be fettered by any condition which impedes or prevents redemption. Any such condition is void as a clog on redemption. But it has been recognised in series of cases that fixing a term for payment in the document does not by itself amount to a clog on redemption unless it was considered to be oppressive or unconscionable or intended to prevent, evade or hamper redemption or had made the right of redemption itself illusory, in which case it will be declared as void as a clog on redemption. Thus if the term fixed for payment is really a clog on redemption and is therefore void, the mortgage money had been due all along from the date of the mortgage itself and the suit will have to be filed within 60 years from the date of mortgage. The mortgage money does not become due only from the date on which the court holds that the terms fixed was a clog on redemption. When the court holds that it is a clog and therefore void it is as if the restriction on redemption was never in existence. The court's decree is only declaratory and it does not make the clause as invalid only from the date of its decree. The courts below therefore erred in holding that the suit was in time.
4. The courts below have held that the period of 240 years fixed under the documents was a clog on redemption accepting the contention of the learned counsel for the respondents. The learned counsel for the appellant proceeded to argue the case on the basis that it is a clog on redemption accepting the contention of the learned counsel for the respondents but contended that the suit was barred by limitation. Since this contention is well founded, the suit is liable to be dismissed.
5. The second appeal is accordingly allowed. The judgment and decree of the courts below are set aside and the suit is dismissed. But there will be no order as to costs. No leave.
6. Appeal allowed.