Norata Singh (died) Rep. by his L.Rs. vs Kamla Devi

S.P. Goyal, J.

The land in dispute measuring 23 bighas 15 biswas belonging to the appellant was under mortgage with possession with the respondent for Rs. 12,000/. Vide lease deed, Exhibit P7, he took it on lease from the mortgagee at an annual rent of Rs. 2,150/ on June 22, 1970, an agreement was executed between the parties stipulating as under :

(a) that Rs. 4,300/ were due on account of rent for the years 196869 and 196970;

(b) that Rs. 3,700/ more had been taken in cash for payment of debt and household expenses;

(c) that the total amount due from the mortgagor thus was Rs. 20,000/ which he shall pay within a month and get the land redeemed; and

(d) that if the mortgagor failed to pay the amount and get the land redeemed within the said period, he will get the sale deed registered for the said amount of the land in dispute in favour of the mortgagee.

As the mortgagor failed to make the payment and honour the agreement, the mortgagee filed this suit for specific performance of the agreement of sale and in the alternative a decree for recovery of Rs. 20,000/. The suit was contested on various grounds but the only one with which we are concerned in this appeal was that the agreement in question amounted to clog on the equity of redemption and, therefore, not enforceable. The learned Sub Judge answered this issue against the appellant in view of the finding on issue No. 3, namely, whether the agreement was void and unconscionable having been got executed through fraud and undue influence. It passes my comprehension as to how the said issue could be answered against the mortgagor because the agreement was held not to have been executed under any fraud or undue influence. The learned Additional District Judge on equally misconceived notion negatived the plea of the mortgagor on the ground that clog is always a term in the mortgage deed, whereas in the present case the mortgagor had agreed to sell the land by a separate agreement. Several authorities cited by the learned counsel for the mortgagor were distinguished on erroneous grounds and it was held that the agreement in dispute was not a clog on the right of redemption.

True, the nature of the agreement in dispute, is that Rs. 8,000/ were taken as further advance on the security of the land already under mortgage but there was no unconditional agreement to sell the land for the total mortgage amount. The stipulation regarding the sale was that if the mortgagor failed to redeem the land within one month of the date of the agreement he shall be liable to execute sale deed in favour of the mortgagee for the same amount. Obviously by this stipulation, the right of the mortgagor to redeem the land was limited to one month instead of the usual period of limitation. In these circumstances there is no scope for any doubt that the stipulation was nothing but a clog on the right of redemption. The question involved is squarely covered by the decision of the Supreme Court in Murarilal v. Devkaran, AIR 1965 SC 225. In that case it was stated in the mortgage deed that the property would be redeemed within the period of 15 years and failing that the mortgagee shall become its absolute owner. This clause was held to be clog on the right of the mortgagor to redeem the property. Similarly, in Ganga Dhar v. Shankar Lal, AIR 1958 SC 770, a stipulation in the mortgage deed limiting the period of redemption to six months, whereafter the property was deemed to have been sold absolutely to the mortgagee was held to be a clog on the right of redemption.

The learned counsel for the respondent has cited a number of authorities in which subsequent advance made on the security was held to be a part of the mortgage amount and the right of redemption not enforceable without its payment. These authorities obviously have no bearing whatsoever on the question at hand. The only case cited by him which needs noticing is Husan Ali and others v. Ganga Nath, AIR 1956 Assam 17. In that case the right of redemption was opposed on the ground that there existed contemporaneous agreement of sale which was executed by the mother of the mortgagor as his guardian whereby the mortgaged property was to be transferred by taking Rs. 50/ more by the minor on attaining majority. His plea was negatived with the observation that the agreement of sale provided no defence to the suit of redemption and a doubt was expressed if that agreement was enforceable against the minor. This case also has hardly any bearing on the present case and therefore of no help to the respondent.

For the reasons recorded above, this appeal is allowed, the impugned judgment and decree set aside and the suit dismissed. In the circumstances of the case the parties are left to bear their own costs throughout.