Conditions in a mortgage deed that purport to allow the mortgagee to continue in possession after redemption are clogs on the equity of redemption and are, therefore, void.

G. M. LODHA, J.

( 1 ) THIS is a Civil first appeal against the judgment and decree dated the 26th Jan. 1980 passed by the District Judge, Jaipur City, Jaipur by the defendant appellant-Smt. Maina Devi against the plaintiff-respondents.

( 2 ) BEFORE this Court, in this first appeal, the decree in Civil Suit No. 11/78 granting redemption of mortgage and the possession of the property on it is being challenged.

( 3 ) THERE is no dispute so far as the facts are concerned because, whatever documents have been exhibited in the case in the form of first mortgage and second mortgage making it clear that the parties entered into mortgage deed at two different points of time.

( 4 ) THE important feature of this case is that so far as the record goes, the second mortgage deed for Rs. 20,000/- was executed on 2nd August, 1975, and by this whereas on the one hand the first mortgage deed dated the 26th May, 1973 was redeemed and that amount was included in this, the property which was now to be mortgaged was specified in this.

( 5 ) THE whole controversy now which has been raised, relates to the question, whether on redemption of mortgage, the plaintiff would be entitled to possession of the mortgaged property in view of the conditions Nos. 4 and 10 of the second mortgage deed ( Ex. 1 ).

( 6 ) IT would be necessary to have a close look and study of these two conditions of the document (Ex. 1) which reads as follows :-

( 7 ) IT is the case of the appellant that the appellant-mortgagee-defendant was already in possession of the property and the first as well as the second mortgage deeds were executed when some amount was advanced to the mortgagor for tiding over financial difficulties. This fact would have been very important for position of the case if it would have been established.

( 8 ) HOWEVER, I find that on a reading of both the documents the first mortgage deed as well as the second mortgage deed, it is obvious that it nowhere shows that before the documents were executed, the defendant was in possession of this property or part of the property as a tenant purely simple or simpliciter.

( 9 ) CONFRONTED with the shown difficulty, Shri S. R. Buj and Shri Dilip Singh, the learned Advocates appearing for the appellant-defendant submitted an application under 0. 41, R. 27, CPC, and prayed therein that the mortgage deed dated the 2nd June, 1973 and the agreement dated the 15th May, 1973 may be taken on record for the purposes of decision of the present first appeal.

( 10 ) THIS application was opposed by Shri M. M. Tewari, the learned Advocate for the plaintiffs-respondents, first on the ground that there was no plea in the written statement that prior to the execution of the mortgage deed, the defendant was a tenant simpliciter of whole of this property or any part of the property. It was pointed out that neither any such plea was taken in the written statement before the trial Court nor any issue was struck and, therefore, the plaintiff cannot be taken by surprise by production of such document for making out a case which was never set up in the pleadings and for which the plaintiff have got no opportunity to defend it.

( 11 ) SECONDLY, it was submitted that this document almost only shows that there was a prior mortgage and according to the agreement nothing was to be done with it and, therefore, it has got no relevancy so far as the point now raised about the earlier tenancy is concerned.

( 12 ) I have carefully gone through the application dated the 29th Jan. 1985 and the affidavit filed with it. In the said application, all that has been said is that the documents are important, and one of them is registered one and no evidence is required to prove them.

( 13 ) NO reason has been given as to why these documents were not produced before the trial Court when the suit has remained pending for a long time and secondly at the time of filing of the appeal or after filing of appeal till the case was argued in hearing, and