IMPORTANT POINT
Any provision incorporated in the mortgage deed to prevent or hamper the redemption would be void. A mortgage cannot be made irredeemable and the right of redemption not an illusory.

Headnote:Transfer of Property Act, 1882-Section 60-Right of mortgagor to redeem-Clog on equity of redemption-Mortgage deed providing mortgage was for period of 99 years-Suit for redemption after expiry of 26 years-Mortgagee resisting suit as premature-Mortgagee enjoying usufructs for over 26 years-Mortgagor financially tight at time of mortgage-Mortgagee took advantage of poor financial condition of mortgagor-Period of 99 years stipulated in deed was a clog on equity of redemption-Clog on redemption in mortgage deed void-Lower Court justified in decreeing suit for redemption.
       Section 60 of the Transfer of Property Act provides that at any time after the money has become due, the mortgagor has a right, on payment or tender, at a proper time and place of the mortgagor-money to require the mortgagee to deliver the mortgage-deed and all documents relating to the mortgaged property and where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor. Such a right of the mortgagor is called, in English Law, the equity of redemption. The mortgagor being an owner who has parted with some rights of ownership has a right to get back the mortgage deed or mortgaged property, in exercise of his right of ownership. The right of redemption recognised under the Transfer of Property Act is thus a statutory and legal right which cannot be extinguished by any agreement made at the time of mortgage as part of the mortgage transaction. (Para 8)
       Any provision incorporated in the mortgage deed to prevent or hamper the redemption would thus be void. A mortgage cannot be made irredeemable and the right of redemption not an illusory. (Para 10)
       In the present case all the courts below on facts held that the mortgage deed being a period of 99 years she was a clog on the equity of redemption. Such findings were returned keeping in view the facts and circumstances of the case and the financial position under which the mortgagor Shri Pakash Singh was placed at the time of execution of the mortgage deed on 19.3.1968. The appellants were found to be in advantageous position qua the mortgagor. They were also found to be deriving the usufructs of the mortgaged land for a period of over 26 years at the time of filing of the suit on payment of meager sum of Rs. 7,000/- only to the mortgagor. The findings of the facts returned by the Courts below do not require any interference. (Para 13)

JUDGMENT

Sethi, J.-Leave granted.

2. Claiming to be the owner of the disputed property being land measuring 23 canals 2 marlas situate in Village Sansra, Tehsil Ajnala, Punjab, the respondent-plaintiff filed a suit for possession by way of redemption against the appellants in the Court of Additional Senior Sub-Judge, Ajnala. The suit was decreed by the Trial Court with a direction for delivery of possession by way of redemption on paying/depositing the mortgage money of Rs. 7,000/- minus the cost of the decree. The appeal filed by the appellants was dismissed by the First Appellate Court on 25th July, 1998 and second appeal was dismissed vide the judgment impugned in this appeal.

3. It is contended on behalf of the appellants that the clause prescribing the period of mortgage did not constitutes a clog on the equity of redemption and that the suit filed before the expiry of the stipulated time was premature in terms of Section 60 of the Transfer of Property Act. In support of their contentions the appellants have relied upon the judgment of this Court in Ganga Dhar v. Shankar Lal1 and distinguished the judgment relied upon by the High Court in the case of Pomal Kanji Govindji & Ors. v. Vrajlal Karsandas Purohit & Ors.2.

4. In order to appreciate the rival contentions, it is necessary to take note of the facts of the case which have given rise to the filing of the present appeal. The disputed property was owned by one Prakash Singh who had mortgaged the same in favour of Smt. Basant Kaur for a sum of Rs. 7,000/- vide mortgage deed dated 19.3.1968. The said Smt. Basant Kaur died whereafter the appellants herein stepped into her shoes qua the suit property and, according to the plaintiffs became mortgagees in possession of the said land. The said Shri Prakash Singh, the original owner, sold the land measuring 19 kanals 2 merlas out of the mortgaged property in favour of the respondents Sucha Singh vide registered sale deed dated 25th March, 1987 for a valid consideration by which the mortgage money of Rs. 7,000/- was kept with the respondent-plaintiff as security (Amanat) to be paid to the appellants. It was further pleaded by the plaintiff that at the time of the original mortgage deed dated 19.3.1968 the said Shri Prakash Singh was financially tight and allegedly taking undue advantage of his poor financial condition and helplessness the appellants got incorporated a term in the mortgage deed, to the effect that the mortgage was for a period of 99 years which constituted a clog on the equity of redemption and that the appellants had been enjoying the usufructs of the mortgage for more than 20 years before the date of the filing of the suit. Despite the fact that the respondent-plaintiff had purchased only 19 kanals 2 marlas out of the mortgaged land, he offered the whole of the mortgage money to the appellants-defendant realising that partial redemption was not permissible. The appellants were stated to have refused to deliver possession which necessitated the filing of the suit.

5. Prakash Singh who was impleaded as defendant No. 3 has proceeded ex-parte. The appellants, though admitted that the disputed land under mortgage was in their possession on the basis of a mortgage for a sum of Rs. 7,000/- since the year 1968, yet contended that the plaintiffs had no right to get the suit land redeemed before the expiry of mortgage period of 99 years. The suit was stated to be premature and liable to be dismissed.

6. On the basis of the pleadings of the parties, the Trial Court framed the following issues :

"1. Whether the disputed land is liable to be redeemed in favour of the plaintiff as claimed through this Suit? OPP.

2. Whether the period of 99 years of mortgage is a clog on the equity of redemption? OPP.

3. Whether the plaintiff has no locus standi to file this suit? OPD

4. Relief?"

The Trial Court while deciding Issue Nos. 1 and 2 held :

"The clause in the mortgage deed providing for the mortgage of the land for a period of 99 years const

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2000 Supreme(SC) 235

IMPORTANT POINTAny provision incorporated in the mortgage deed to prevent or hamper the redemption would be void. A mortgage cannot be made irredeemable and the right of redemption not an illusory.

Cases Referred (3)

IMPORTANT POINT
Any provision incorporated in the mortgage deed to prevent or hamper the redemption would be void. A mortgage cannot be made irredeemable and the right of redemption not an illusory.