Hasar Ali and Others vs Ajodhaya Sah and Others

Agarwala, J.—This is an appeal by the plain-tiffs against concurrent decisions of the Courts below. The appeal arises out of a suit for redemption of a mortgage dated 8th September 1928. The term of the mortgage stated in the bond is 98 years. There is a provision that if the mortgage be not redeemed at the end of the term, it should not be redeemable for another term of 98 years. The suit was instituted on 1946, long before the expiry of the term, it being contended by the plaintiffs that the reference to 98 years in the bond had been fraudulently inserted in it by the defendant in place of the eleven years which had been agreed upon between the parties. Both the Courts negatived the plea of fraud and held that 98 years was the term agreed upon.

In the appellate Court it was conceded on behalf of the plaintiffs that a long term of 98 years cannot by itself be a clog on the equity of redemption, nevertheless, it is now contended that such a long term is a clog on the equity of redemption, and reference is made to a decision in Bhullan and Others Vs. Bachcha Kunbi and Others . The term of the bond in that case was for sixty years, and there was a provision that, if it were not redeemed on the day following the sixtenth year, it would not be redeemable for a further period of sixty years. Young J. who delivered the leading judgment, held that it is open to the Courts in India to take the view that an unreasonably long term in a mortgage bond is a clog in the equity of redemption, Sulaiman J. agreed that in the particular case there was a clog on the equity of redemption, but was doubtful whether a long term by itself constituted a clog. In Rajai Singh v. Randhir Singh A. I. R. 1926 ALL. 643 : 87 I. C. 30 the term of the mortgage was for 95 years, and there was a provision that the interest for the entire period should be paid along with the principal sum at the end of the term. It was held that it would be inequitable to up-bold the transaction in its literal terms, and that the mortgagor should be allowed to redeem the property before the expiry of the term stipulated on payment of the principal money with interest due up to the date of redemption. In Durga Charan Maji Vs. Poresh Bewa, a redemption was allowed in the case of a bond, the term of which was fixed at 50 years. In that case, however, the mortgagee did not plead that he was entitled to re-main in possession for the full term of 50 years. On the other hand, be set up a false plea that the transaction was a sale. Cases which have taken a view adverse to the appellants also exist. In Mt. Sabratan and Another Vs. Dhanpat Gadariya and Another a Division Bench held that in India where there is a codified law of mortgage, it would be improper for the Courts to ignore that law and to look to English" cases as their guide in determining what amounts to a clog on the equity of redemption. A term of 60 years was not held per se to be a clog on the equity of redemption. Similarly, in Muhamed Ibrahim v. Muhomed Abiz 8 I. C. 1068 : 9 M. L. T. 462 where the term of the mortgage was 90 years, it was held that the mortgagor was not entitled to redeem the mort-gage before the expiry of that period. In Jagan-nadham v. Narasimham, A. I. R. 1944 Mad. 601 : 1944 2 M. L. J. 144 Pantanjali Sastri J. held that the mortgagor''s right to redeem cases only on the expiry of the period agreed upon, and, therefore, where the period agreed upon is sixty years, it could not be regarded as a clog on the equity of redemption. There is a case of the North West Frontier Province in which the term was 150 years, Abdulla v. Sadulla Khan 15 I.C. 917 . The preponderance of authority is clearly in favour of the view that in India a long term is not by itself a clog on the equity of redemption, entitling the mortgagor to redeem before the expiry of the period agreed upon. The appeal, therefore, fails and is dismissed with costs.