The right of redemption under a mortgage cannot be restricted by any provision that hampers redemption, as it is a statutory and legal right that cannot be extinguished by any agreement made at the time of the mortgage.

Judgement

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 field a suit for possesion 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 1936 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 impunged 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 Gangadhar v. Shankar Lal, AIR 1958 SC 770 : 1959 SCR 509 and distinguished the judgment relied upon by the High Court in the case of Pomal Kanji Govindji v. Vrajlal Karsandas Purohit, AIR 1989 SC 436.

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 the 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 possesison of the said land. The said Shri Prakash Singh, the original owner, sold the land measuring 19 kanals 2 marlas 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 necessiated the filing of the suit.

5. Prakash Singh who was impleaded as defendant No. 3 was proceeded ex parte. The appellants, though admitted that the disputed land under mortgage was in their possesison 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