Judgment

GAJENDRAGADKAR, C.J.I. : This appeal by special leave arises out of a redemption suit filed by the respondent Dev Karan against the appellant Murarilal. The mortgage sought to be redeemed was executed on the 19th March, 1919 for a sum of Rs. 6,500/-. The mortgaged property consisted of a shop which was delivered over in the possession of the mortgagee alter the execution of the mortgage-deed. The mortgage deed had provided that the amount due under the mortgage should be repaid to the mortgagee within 15 years, whereupon the property would be redeemed. It had also stipulated that if the payment was not made within 15 years, the mortgagee would become the owner of the property. The mortgagor was Mangal Ram who died and the respondent claims to be the heir and legal representative of the said deceased mortgagor. In the plaint filed by the respondent, it was averred that the transaction was, in substance. a mortgage and the mortgagor s right to redeem was alive even though the stipulated period of 15 years for the repayment of the loan had passed. On these allegations, the respondent claimed a decree for redemption of the suit mortgage on payment of Rs. 6,500/-, it appears that the original mortgagee Gangadhar had also died before the institution of the suit, and so, the appellant Murarilal was impleaded as the defendant on the basis that he was the only, heir and legal representative of the deceased mortgagee Gangadhar.

2. The claim for redemption thus made by the respondent was resisted by the appellant on several grounds. It was alleged that after the expiry of the stipulated period of 15 years, the property had become the absolute property of the mortgagee and it was urged that the original transaction was, in substance, and in reality, not a mortgage but a sale, several other pleas were also raised by the appellant in resisting the respondent s claim, but it is not necessary to refer to them. The learned trial Judge framed appropriate issues which arose on the pleadings of the parties. In substance, he held that the claim for redemption made long after the 15 years period had expired could not be sustained. Findings were made on other issues also and they were against the respondent. In the result, the respondent s suit was dismissed.

3. The respondent then took the matter in appeal before the Rajasthan High Court. He urged that the view taken by the trial Court that the stipulation as to the mortgagor s liability to re-pay the loan within 15 years did not bar his present suit for redemption, because the said stipulation amounted to a clog on the equity of redemption and as such, could not affect the mortgagor s right to redeem, and he added that the transaction, in subsance, was a mortgage and not a sale, and so, his right to redeem was alive and could be effectively enforced by the present suit. The High Court has upheld his first contention that the relevant provision as to the period within which the mortgage amount had to be repaid amounted to a clog on the equity of redemption and could not be pleaded as a bar to the present suit. But on the question about the character of the original transaction itself, the High Court appears to have been inclined to take the view that the relevant clause on which the plea about the bar was raised did not really support the said plea, because it was by no means clear that even after the expiration of 15 years, the mortgagee was intended to be the absolute owner of the property. On these findings, the decree passed by the trial Court dismissing the respondent s suit has been reversed and the suit has been remanded to the trial Court to be disposed of in accordance with law. It is against this order that the appellant has come to this Court by special leave. Pending the appeal before this Court both the appellant and the respondent have died, and their respective heirs have been brought on the record.

4. The first question which calls for our decision is whether the relevant, cla