Mer Sidi Munja vs Mer Gian Kama and Others

Chhatpar, J.—This second appeal arises out of a suit filed by the Appellant for redemption of mortgages created by the ancestors of Respondent 6 and himself in favour of the ancestors of the first 5 Respondents. The Plaintiff claimed to be the sole heir of his father Punja Sura, who was alleged to have purchased the equity of redemption in the mortgages in the year 1932. The mortgaged lands measure about 12 bighas and are situated in Khambhodar in the former State of Porbander and now in the Sorath District of the State of Saurashtra. The original mortgages were created from the St. year 1940 : 1884 A.D. by deeds Exs. 8/1 to 8/5 and the period of redemption expired in St. W. 2001: 1945 A.D. The present suit for redemption was filed on 16-4-48 and the Plaintiff -- the present Appellant -- while praying for redemption of these mortgages, at the same time stated that if any more mortgages were found proved in respect of the lands, he would be willing to redeem them and prayed accordingly for relief. He did not attack or question the validity of any of the mortgages on the ground of being unconscionable or having been executed under coercion or undue influence, but made a general prayer for redemption putting burden upon Defendants 1 to 5 (hereinafter referred to as the mortgagees) to prove mortgages on the lands which he would be prepared to redeem. The mortgages are usufructuary mortgages, the stipulation being that the produce enjoyed by the mortgagees would be considered in lieu of interest. Such mortgages are very common in this part of the country and which avoid the necessity of going into accounts. The mortgages Exs. 8/1 to 8/5 are admitted but the mortgagees claim that before the expiry of the period of the mortgages, by a deed Ex. 8/6 executed in St. 1970: 1914 A.D., the period of the redemption was extended by 30 years in consideration of payment of an additional loan. These 30 years would consequently expire in 1975 A.D. They also plead that in the St. 1984: 1928 A.D. for a further consideration, two deeds of mortgage, Exs. 8/7 and 8/8, each relating to one-half of the property mortgaged were executed, whereby the period of the mortgage was further extended for 60 years from the date of the expiry of the last extension of 30 years by Ex. 8/6 i.e. the period of redemption was extended to the year 2035 A.D. Consequently the suit of the Plaintiff was premature, the right of the redemption not having accrued due. The mortgages also put the Plaintiff to the proof that he was the sole heir of his father the assignee of the equity of redemption; some other technical pleas were also raised, which are not necessary for me to consider.

The lower Courts have held these further documents of mortgages Exs. 8/6, 8/7 and 8/8 to be duly proved; no force or fraud or undue influence was either alleged or proved. This is a finding of fact, which Mr. G.B. Joshi the learned Advocate for the Appellant has not questioned. He has only contended that the documents Exs. 8/6, 8/7 and 8/8 constitute Clogs on the right of redemption and therefore are void and the Appellant is entitled to redeem and obtain immediate possession. The trial Court dismissed the suit holding that though the Plaintiff was entitled to file the suit as the sole heir of his father, there being no evidence to the contrary, the suit was premature in view of Exs. 8/6, 8/7 and 8/8, which extended the period of redemption for the aggregate period of 90 years from 1945 A.D. The lower appellate Court confirmed this finding about the suit being premature holding that these documents did not constitute a clog on the right of redemption; but did not touch the other technical defences to the case. The Plaintiff has now come in second appeal.

Mr. G.B. Joshi''s sole argument has been that inordinately long terms of mortgages amount to clogs on the right of redemption. He has relied upon a judgment of this Court by Chudgar J. in -- ''Second Appeal No. 346/1348 (A)'' The parties in the present case as also the parties in the case decided by Chudgar J. are Mers by caste. It appears quite common amongst such people to enter into usufructuary mortgages for very long terras for what may appear now to be for very small and inadequate loans. The trial Court in the present case has explained and justified this practice on the ground that in the former State of Porbander, the Mers were prohibited from alienating any lands of theirs excepting in favour of members of their community. He generally referred to several cases tried by him wherein mortgages were created for very long terms and which were considered quite usual amongst this class of people in the former State of Porbander. The Plaintiff in his plaint did not raise the question of the latter mortgages being clog on the right of redemption nor was there any issue framed relating thereto. He disputed the validity of these instruments of mortgages, it appears, only after the judgment of Chudgar J. given in February 1949; questions the periods of the Court mortgages were (sic) from which his Advocate tried to make out a case of clog on redemption. The trial Court has considered this question as also the lower appellate Court and given decision against the Plaintiff and dismissed the suit.

Mulla in his commentary on the Transfer of Property Act, 1949 Edition, at p. 402 deals with the subject and says:

A long term for redemption is not necessarily a clog on the equity of redemption. Indeed a long term may suit both parties, relieving the mortgagor of the necessity of finding Anr. creditor, and being a long term investment for the mortgagee. In England there is no reported case in which a restriction for more than seven years has been upheld and a restriction for twenty years has been held, in conjunction with other circumstances, to be a clog on redemption. But in India terms of much greater duration have been allowed though 200 years have been held to be a clog. But if there are circumstances which indicate that the length of term is unreasonable, or oppressive, redemption has been allowed before the expiry of the term.

Thereafter he quotes a ruling of the Oudh Court in the case of -- Abdul Hakim v. Sajjad Hussain AIR 1923 Oudh 209 (B), wherein a usufructuary mortgage for a term of 101 years was permitted to be redeemed before the expiry of the term in view of the onerous and difficult provisions contained in the mortgage without any corresponding benefit to the mortgagor. The learned author thereafter observes:

On the other hand the Allahabad High Court has held that a long period even though coupled with onerous and oppressive terms affords no ground for interference unless there has been coercion, fraud or undue influence.

At page 403, he refers to two cases, one of the Oudh Court, -- Zulficar Ali v. Suraj Prasad AIR 1922 Oudh 221 (C), and the other on the. Madras High Court -- Dronamraju Lakshmi Narasimha Rao Pantulu Vs. Immani Seshayya and Others, , holding that a long term in a usufructuary mortgage is less likely to operate as a clog on redemption, as redemption is effected on payment of fixed sum and there is no danger of accumulation of arrears of interest exceeding the value of the property. The learned author quotes several cases of the terms of mortgages extending even to 150 years which have been held to be valid and where the plea of clog on redemption was repelled. There is only one case of Oudh in -- AIR 1927 224 (Oudh) , where the Court held a period of 200 years for redemption by itself to be a clog. Mr. J.M. Joshi the learned Advocate for the mortgagees has cited several cases of the same Court upholding mortgages of 55 years in -- AIR 1933 460 (Oudh) ; 99 years in -- Baldeo v. Losai AIR 1929 Oudh 54 (G); -- 98 years in -- AIR 1922 Oudh 221 (C); and 200 years in -- Narain Das v. Debi Din Singh AIR 1926 Oudh 38 (H); while other High Courts have uniformly held that a mere long term by itself is not a clog. He has also relied upon cases reported in --Abdul Hak v. Gulamjilani 20 Bom 677 (I); -- Kumarasamia Pillai v. Udayar Nadan 1 Ind Cas 345 (Mad) (J); -- Ram Charitar Rai v. Mt. Jiani 21 Ind Cas 859 (All) (K); -- Mt. Sabratan and Another Vs. Dhanpat Gadariya and Another ; -- Mt. Rangili and Another Vs. Pearey Lal and Others, ; -- Muhomed Ibrahim v. Muhammad Ayiz 8 Ind Cas 1068 (Mad) (N): Kamal Khan Vs. Nizamuddin, ; -- Hasar Ali and Others Vs. Ajodhaya Sah and Others, ; and -- Abdulla v. Saadulla Khan 15 Ind Cas 917 (Punj) (S), wherein mortgages up to 150 years have been upheld. I need not discuss these rulings in detail but the preponderance of the judicial opinion appears to be in favour of what is digested in the above commentary of Mulla. It becomes a question of fact in the circumstances of each case whether an unduly long term coupled with oppressive or onerous terms which do not confer any corresponding benefit on the mortgagor should be considered as a clog on redemption to be relieved against by a Court of equity. A long period itself has been uniformly held except in the solitary case of -- AIR 1927 224 (Oudh) not to amount to a clog.

In the present case I am confining my decision to the validity of the mortgage Ex. 8/6 executed in St. 1970: 1914 A.D., whereby the original period of the 61 years which expired in the year 1945 A.D. was extended by a further period of 30 years. According to this deed, redemption became due in the year 1975 A.D. I need not consider the validity of the subsequent mortgages evidenced by Exs. 8/7 and 8/8 in view of my decision that the mortgage Ex. 8/6 was in any case valid, and that the period of extension by 30 years did not constitute a clog on redemption and consequently the suit filed in 1947 was premature. It may be borne in mind that the Plaintiff, whose father acquired the equity of redemption from Respondent 6, the mortgagor, in the year 1932, did not choose to assail the validity of the mortgages evidenced by Ex. 8/1 to 8/5, from which it may reasonably be inferred that he did not consider the original mortgages as oppressive and the long term of redemption a clog. It is only after the original term of 61 years had expired in 1945 that he thought fit to file the present suit and the reason for doing so is not difficult to understand; the lands have appreciated considerably in value and the produce thereof is out of proportion to interest on loans given to the mortgagor. But I have to judge the legality of the mortgage of 1914 and whether the conditions then existing were such that they would make the bargain for the extension by 30 years unconscionable, which could be relieved by a Court of equity. No circumstance has been brought to my notice nor is there an iota of evidence to show that the transaction of the mortgage executed in 1914 was either oppressive or unconscionable. There is the concurrent finding of the two lower Courts against the Appellant.

I now deal with Chudgar J.''s judgment relied upon by the Appellant. In that case the mortgagors had executed about 30 documents showing loans advanced to the mortgagors and their heirs during a period of 50 years and whereby the period of redemption was postponed for about 150 years from the date of the first mortgage in the St. year 1938 and at least for about 125 years from the date of the various subsequent mortgages. The learned Judge observed that in order to consider whether the stipulation postponing redemption by means of all these documents from years to years was a clog on redemption must be determined according to the facts and circumstances of that case. The learned Judge did not think it fit to discuss the various authorities cited on both sides, but observed that he had gone through the judgments of every one of the ruling cited and found that each had been decided on its own facts and no general rule had been laid down which could be applied to other cases. After going through the mortgage deeds he observed:

I find nothing in the language of all the mortgage documents in the nature of an argument to the effect that the mortgagor was not free to offer the money due by him at any time he could pay; in other words, there is nothing to show that the payment of various loans was not to be due until the expiration of a certain period.

In those circumstances the learned Judge held that the mortgagors were entitled to redeem. He also further observed that it was not possible to lay down any hard and fast rule as to what should and what should not be regarded as a clog on redemption and that each case must be decided on its own facts and circumstances. He then makes reference to the Privy Council case of -- Shanker Din v. Gokal Prasad 34 All 620 (PC) (T), which was cited as authority that there was nothing in law to prevent the parties to a mortgage from coming to any arrangement afterwards qualifying the right to redeem and that a provision in the mortgage deed fixing a period of redemption and providing that the mortgage shall not be redeemable before the date fixed was not a clog on redemption if the period fixed was a reasonable one. The Privy Council case however does not lay down that it is only in those cases where the period of redemption is a reasonable one that the Court would insist upon the parties to stick to the covenant agreed to. The ordinary law is that the parties should not be permitted to resile from the solemn undertakings in formal deeds and documents executed by them. Chudgar J., further observed:

There seems to me a clear deliberate and well-planned device to prevent redemption at any time in future for generations of the mortgagors and I can conceive of no more oppressive terms and that it is clear to me that the mortgagors are entitled to be relieved from those oppressive terms.

Thereafter reliance was placed upon the case reported in -- AIR 1927 224 (Oudh) , in which a period of 200 years was held by itself a clog.

In the present case the document of mortgage Ex. 8/6 under consideration contained a covenant that the mortgagees would be entitled to enjoy the produce of the lands for the extended period of 30 years and that the mortgagor would be entitled to redeem only after the expiration of this period when they paid the mortgage debts in full. No liberty is reserved in the deed to redeem the mortgage before the expiry of the period of the mortgage. As stated above, the period of 61 years which expired in 1945 was not considered either as a clog or unconscionable or oppressive by the Plaintiff. The extension of 30 years by Ex. 8/6, in the circumstances of the present case, does not appear to me to be unconscionable, unreasonable or oppressive, which might be construed as a clog on redemption assuming that the ratio decidendi in the Oudh case reported in -- AIR 1927 224 (Oudh) , to be good law. Chudgar J., has clearly stated in his judgment that it is a question of fact in each case whether a long period of redemption along with other circumstances should or should not be considered as a clog on redemption. There is no circumstance apart from the mere fact of the long period of redemption to justify relief to be given in equity before the expiry of the period on the ground of clog on redemption. Further the equitable relief does not appear to be available to the assignee of the right of redemption. See in this connection the (sic) High Court in the case of -- Kamal Khan Vs. Nizamuddin,

Under the circumstances, I see no reason to differ from the views of the lower Courts and dismiss this appeal with costs.