Ajit Singh vs Kakhbir Singh and others

This regular second appeal by defendant No. 1 is directed against the judgment and decree of the first appellate Court reversing on appeal those of the trial Judge and passing a decree for redemption of the suit land in favour of plaintiff-respondents Nos. 1 and 2 on payment of mortgage money of Rs. 9,000/- within one month.

The facts :--

Defendants Nos. 2 and 3 (respondents Nos. 3 and 4 in this appeal) (hereinafter defendants Nos. 2 and 3) were the owners of the suit land; that defendant No. 3 mortgaged the suit land in favour of defendant No. 1 appellant (hereinafter defendant No. 1) vide registered mortgage dated September 25, 1967 for a consideration of Rs. 9000/- for a period of 95 years; that the suit land was already under mortgage with defendant No. 1 for consideration of Rs. 5000/-; that the previous mortgage money was adjusted in the subsequent mortgage money of Rs. 9,000/-that plaintiff-respondents Nos. 1 and 2 (here-inafter the plaintiffs) and defendant No. 4/ respondent No. 5 (hereinafter defendant No. 4) purchased the suit land along with other land from defendant No. 3 for consideration of Rs. 25,000/- vide registered sale deed dated March 25, 1987; that although the suit land was mortgaged for a consideration of Rs. 9000/-, but Rs. 1200/- were paid to defendant No. 3 at the time of execution of mortgage deed dated September 25, 1967; that since the mortgage was in financial difficulty and was addicted to alcohol, taking the advantage of poverty and helplessness of the mortgagor, the mortgagee got the mortgage deed executed for a long term of 95 years and the clause in the mortgage deed that the mortgage was for 95 years is a clog on the equity of redemption and the mortgagor or the purchaser is entitled to redeem the suit land before the expiry of the stipulated period of 95 years fixed for redemption of the mortgage in the mortgage deed ignoring the clog clause.

The suit was contested by defendant No. 1. It was, inter alia, pleaded that the purchaser of the suit land is bound by the covenant in the mortgage deed dated September 25, 1967 and that the clause that the land was redeemable after 95 years was not a clog on the equity of redemption.

From the pleadings of the parties, the trial Judge framed the following issues:--

1) Whether the plaintiff is entitled to redeem the suit land? OPP

2) Whether the period of 95 years is a clog on the equity of redemption? OPP

3) Whether the plaintiffs have got no locus standi to file the present suit? OPD

4) Whether the suit in the present form is not maintainable? OPD

5) Whether the plaintiff has no cause of action? OPD

6) Whether the suit is premature? OPD

7) Relief.

Issue No. 1 was decided by the trial Judge in favour of the plaintiffs holding that the plaintiffs were entitled to redeem the suit land; issues Nos. 2 and 5 were disposed of together and it was held that the plaintiffs had failed to prove that the clause in the mortgage deed that the mortgage could not be redeemed for 95 years was not a clog on the equity of redemption and that the suit was premature; issue No. 3 was decided against the plaintiffs and it was held that they had no locus standi to file the present suit; issue No. 4 was answered against the defendants and it was held that the suit for possession by redemption was maintainable; issue No. 5 was answered against the defendants and it was held that the plaintiffs had right to redeem the suit land and as such had got cause of action. On ultimate analysis, the suit was dismissed being premature.

The first appellate Court, after examining the oral evidence produced by the parties and relying upon the statement of defendant No. 1, came to the conclusion that the transaction of mortgage is a colourable transaction and the mortgage deed was got executed from the mortgagor to circumvent the provisions of the Preemption Act. It held that the condition in the mortgage deed that the mortgaged land could not be redeemed for 95 years was a clog on the equity of redemption and relieving the mortgagor of the clog clause ordered redemption of the suit land.

The right of redemption is without doubt a statutory right which cannot be fettered by any condition which impedes or prevents redemption and any such condition is void as a clog on the equity of redemption. The circumstances in which the mortgagor was compelled to secure the amount, terms and conditions on which the amount was in fact advanced, and the other alternative to which the mortgagor could have taken re- course for obtaining the sum advanced are relevant factors for determining whether particular term of redemption amounts to a clog on the equity of redemption because it is unreasonably long. The term as to the postponement of the right of redemption of mortgage for a period of 95 years read with the other conditions mentioned in the mortgage deed would amount to a clog on the right of redemption, In Pomal Kanji Govindji and Others Vs. Vrajlal Karsandas Purohit and Others, , it was held their Lordships of the Apex Court thus (at p. 448) :--

"It is a settled law in England and in India that a mortgage cannot be made altogether irredeemable or redemption made illusory. The law must respond and be responsive to be felt and discernible compulsions of circumstances that would be equitable, fair and just and unless there is anything to the contrary in the statute, law must take cognisance of that fact and act accordingly. In the context of fast changing circumstances and economic stability, long term for redemption makes a mortgage an illusory mortgage, though not decisive. It should prima facie be an indication as to how clogs on equity of redemption should be judged."

In the light of the authoritative pronouncement, there is no escape from the conclusion that clause in the mortgage deed that the land is irredeemable for 95 years is a clog or fetter on the equity for redemption and hence bad.

For the reasons stated above, the appeal fails and is dismissed, but with no order as to costs.

Appeal dismissed.