P.D.DESAI - (1.)In the town of Jambusar there is a piece or parcel of open land (building site) bearing City Survey No. 4013 admeasuring 24 square yards. This piece or parcel of land will be referred to as the suit land or mortgaged property in the course of this Judgment. One Bai Mani widow of Vishnushanker Bhavanishanker was the original owner of this property. There was some dispute between the parties as to how Bai Mani acquired title over this property. The contention of the respondent-plaintiff was that the property was bequeathed to her by her husband under his will dated April 19 1893 This version put forward on behalf of the respondent-plaintiff has however not been accepted by the lower appellate Court which has found that Bai Mani had in fact purchased the same from Jagmohandas Jugaldas and another by a registered sale deed dated November 10 1905 (Ex.52). It appears that Bai Mani mortgaged the suit property to one Chhotalal Mathurdas Chhatrapati by a registered document dated January 4 1909 for securing a debt of Rs. 61.00. It was a mortgage with possession for a period of 199 years. The first appellant is the son and the second and the third appellants are the grand-sons of the said Chhotalal Mathurdas Chhatrapati. Bai Mani died some time between 1941 and 1945 Prior to her death she had executed a will (Ex.71) on June 13 1939 bequeathing the suit property to her nephew one Vaidya Dhaneshvar Girjashanker. The said Dhaneshvar had a son Indrashanker and under a will dated November 10 1945 (Ex.69) the said Indrashanker inherited the suit property from his father. Indrashanker thereafter sold the suit property to the respondent-plaintiff by a registered sale deed (Ex.63) executed on July 2 1963 These are the material facts which have been found by the lower appellate Court and which have been rightly not disputed at the hearing of this second appeal on behalf of the appellants-defendants.
(2.)After purchasing the suit property the respondent-plaintiff filed Regular Civil Suit No. 115 of 1965 in the Court of the Civil Judge Junior Division Jambusar for redemption of the mortgage created on the suit property on payment of Rs. 61/as also for recovery of vacant possession of the said property from the appellants. The case of the respondent was that as a result of the purchase of the suit property he had stepped into the shoes of the original mortgagor and that he was therefore entitled to redeem the mortgage. The respondent averred that he had served a notice dated March 22 1965 on the appellants requiring them to redeem the mortgage and deliver vacant possession of the suit property to him against payment of Rs. 61/and that the appellants having failed to comply with the requisition he was compelled to commence the action. The respondent alleged that the stipulation in the mortgage deed to the effect that the mortgage was to subsist for a period of 199 years was a clog on the equity of redemption and that in the eye of law such a condition was inoperative and unenforceable.
(3.)The appellants resisted the suit on several grounds. The principal defence raised on behalf of the appellants was that the suit was premature The appellants contended that according to the terms agreed upon between the original mortgagor and mortgagee the mortgage was to subsist for a period of 199 years and since the said period had not expired the respondent was not entitled to file the suit for redemption of mortgage. The appellants further pleaded that merely because the right to redeem was postponed for a period of 199 years by agreement between the parties it could not be said that there was a clog on the equity of redemption and that the said term which was voluntarily agreed upon between the parties was binding upon them and their successors in title. The suit was resisted on some other grounds also but it is not necessary to notice them at the present stage because the real dispute between the parties now centres round the question whether in the facts and circumstances of the case the postponement of redemption for 199 ears amounted to a clog on the equity of redemption.
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