Jagjiwan Popat and Others vs Rana Jilubha Dhirubha and Others

Chhatpar, J.—This second appeal arises out of a suit for redemption & possession of certain houses filed by the resp. 1 against the present applts. & the other resps. The houses in question were mtged. was possession by certain Bhagdars of Narichana to the deft.s'' father Popat Vanmali by a registered deed dated Shravan Sud 11 Samvat 1987. On partition between the Bhagdars the houses were assigned to the pltf.''s share who accordingly filed the suit for redemption in his own name. The mtge. was of the nature very common in Saurashtra i.e. that no rent was payable by the mtgee. & no interest was payable by the mtgor. The mtge. was to be redeemed on payment of the sum borrowed. The deft''s. admitted the mtge. but so far as the questions in the present appeal are concerned they contended that on the redemption of the mtge. by payment of the mtge. amount the mtgee. would become a permanent tenant at an yearly rental called ''Vero'' of Rs. 3/-; in other words, though the right of redemption was admitted the defts. contended they were not liable to give possession but had the right to continue in possession so long as they continued to pay the rent. This kind of permanent tenancy was pleaded according to a local custom. The mtge.-deed contained a clause that after payment of the mtge.-debt, the mtgee. will pay ''Vero'' of Rs. 3/- per year for the houses. There was no specific mention of a permanent tenancy. The trial Ct fixed the amount of the mtge. on the payment of which the property was to stand redeemed but held in favour of the defts. so far as their contention about permanent tenancy was concerned. The trial Ct. consequently refused a decree for possession which was prayed for in the plaint. Against this decision the pltf. filed an appeal in the ''Disk Ct. The learned Dist. J. held that the alleged custom of permanent tenancy was not proved & further hold that the clause in the mtge. deed that the mtgees. were to continue in possession after redemption was a clog on the right of the redemption of the mtgor. & therefore void. The learned Dist. J. consequently gave the usual decree to the pltf. with an order to the defts. to hand over possession of the property to the pltf. Against this decree some of the defts. have filed a second appeal.

The learned advocate for the applts. has raised 3 points, His first contention is that the deed in question is not a mtge. deed but should be construed as a lease deed creating a permanent tenancy. The second point raised is that even if the deed is construed as creating a mtge., the condition that the mtgee. had to remain in possession was not a clog on the right of redemption. His third contention which really is the basis of the second contention is that the T.P. Act does not apply to the parties & therefore the express term of the deed between the parties should be given effect to.

As regards the first point it is clearly admitted in the written statement as also in the reply to the notice given by the pltf that the transaction was a mtge. The defts. while admitting the mtge set up a case of permanent tenancy after the property was redeemed. Reading the document its. It it is clear to my mind that the two essentials of a mtge i.e. a secured debt & a right of redemption are clearly mentioned in the document itself. Both the lower Cts. have construed this as a mtge. & I see no reason to differ from their finding.

As regards the second point whether the disputed clause constitutes a clog on the right of redemption & therefore void, the question is practically settled that a condition that after redemption the mtgee. should continue in possession as a permanent tenant is invalid as it prevents the mtgor. getting back the property free & unfettered. See Mullah''s T.P. Act (1949 Edn.) at p. 495 & the numerous cases cited there. The learned advocate for the applts. realising this legal position stated that he gave up the case of permanent tenancy but pleaded that the mtgee. became a tenant-at-will. This plea was for the first time taken in this Ct. In both the lower Cts. the case of the defts. was that they became tenants on a permanent basis by reason of the alleged custom which was held disapproved in the Dist. Ct. But being confronted with an argument that a tenantat will was liable to be ejected at any time, & a notice demanding possession was in fact given in the present case, the learned advocate had to shift his ground again & say that he was unable to state what the nature of the tenancy would be after redemption but that question would be raised when the pltf. filed a separate suit for possession on the basis of the termination of such tenancy. This contention of the learned advocate for the applts. is not tenable as the present suit is for redemption & possession. It is not necessary for the pltf. to file Anr. suit. A mtgee. with possession is bound to restore possession on redemption to the mtgor. u/s 60, T.P. Act. Before the suit was filed the pltf. had given a notice asking the defts. to hand over possession as he was prepared to redeem the property on payment of the mtge-debt. I cannot permit the defts to make out a new case for the first time in this Ct. The defts. had clearly set up a case of permanent tenancy as a bar to the pltf''s. case for possession & they cannot be permitted to resile from this position.

This leads me to the third point whether the principles of the T.P. Act should be held applicable to the present case. It is true that the T.P. Act was not applicable to the place where the mtge. property is situate but the doctrine of clog on redemption has been applied as a rule of justice, equity, & good conscience in a province where the Act is not in force. See Mullah''s T.P. Act (1949 Edn.) p. 398 & the P.C. case of AIR 1930 142 (Privy Council) . The learned commentator further states that this doctrine has been applied to anomalous mtges. also. There were some decisions to the contrary but these are now overruled by P.C. in the case of ''Mohd. Sher Khan v. Swami Dayal'' AIR 1922 PC 17.

I accordingly hold that this doctrine applies to the present case & the clause in question constitutes a clog on redemption & is therefore void & the pltf. is entitled to possession. No further point bas been raised by the learned advocate for the applts. The appeal is dismissed with costs.