PARMA NAND Vs. BABU RAM

JUDGEMENT

(1.) On 18th Maghar, Samvat 2000 B. K., i.e., on some date in 1943, Babu Ram mortgaged with possession his vacant land measuring 11 Marlas for Rs.385/-in favour of Parma Nand. The right of redemption was deferred by 59 years and the mortgagee was given right to construct a house without fixing any limit on the cost of construction and it was agreed that at the time of redemption, the mortgagee would be entitled to the cost of construction along with the interest at the rate of 6 per cent per annum together with the mortgage amount. As regards the interest on the mortgage amount, it was equal to the rent of the mortgaged site. The mortgagee is alleged to have constructed the house on the vacant site by spending Rs.6,000/- sometime after the creation of the mortgage. In spite of seeing that the mortgagee was constructing the house and the cost of construction was disproportionate to the mortgage amount, the mortgagor allowed the normal period of limitation of 30 years to expire and kept quiet till the expiry of the limitation. It was only on 15-4-1975 that he filed a suit for redemption wherein it was pleaded that the condition of 59 years and of constructing the house without specifying any upper limit regarding the cost of construction and for payment of such costs along with 6 per cent interest thereon, to be paid at the time of redemption, amounted to clog on the equity of redemption and sought to be relieved of the aforesaid clauses. The mortgagee contested the suit and pleaded that the terms of the mortgage were not unconscionable. 30 years prior to the filing of the suit he had constructed a house after spending Rs.6,000/- and since no condition was onerous or was a clog on equity of redemption, the suit was premature, Both the Courts below decreed the suit for redemption after recording a finding that the conditions were oppressive and amounted to clog on the equity of redemption. However, the trial Court had found that the mortgagee had spent Rs.2500/- on improvements and passed a preliminary decree for redemption on payment of the mortgage amount plus the amount of improvements; whereas the lower appellate Court enhanced the amount spent to Rs.2700/-. This is defendant's second appeal in this Court.

(2.) After hearing the learned counsel for the parties and on perusal of the record, I am of the view that this appeal deserves to succeed. Till before the judgment in Ganga Dhar v. Shankar Lal, AIR 1958 SC 770, was rendered, there was some divergence of opinion whether the term in the mortgage that it will not be redeemable until the expiry of certain years would or would not be a clog on the equity of redemption, but after the aforesaid decision, it has been made clear that postponement of date of redemption even for 85 years by itself, would not be a clog on the equity of redemption because in that case the equity of redemption was deferred until the expiry of 85 years. In that case, the additional clause was that after the expiry of 85 years, redemption would be permissible within a period of six months and in case the redemption is not obtained within six months, then the mortgagor shall have no claim over the mortgaged property and the mortgagee shall have no claim to have the mortgage money, nor to the expenses in regard to repairs that may be due at the time of default. In such a situation, the mortgage deed will be deemed to be a sale deed and there will be no need of executing a fresh sale deed. It was also argued that the expenses spent on the repairs and new constructions will be paid along with the mortgage money at the time of redemption according to the accounts produced by the mortgagee. In spite of the additional clauses it was held that the postponement of redemption by 85 years was not a clog on the equity of redemption. The clause regarding the mortgage being considered as a sale in the event of non-redemption of the mortgage within a period of six months after the expiry of 85 years, was considered to be severable and this clause was held to be a clog and was struck down. Regarding the clause of making repairs and new construction and providing for payment of the costs thereafter by the mortgagee to the mortgagor, at the time of redemption was not dealt with. In any event, this clause was not held to be a clog on the equity of redemption either disjunctively or conjunctively with the clause of postponing the redemption for 85 years.

(3.) On the facts of the present case, whether on terms of the mortgage, the same can be held to be a clog on the equity of redemption or not, has become academic, because the mortgagor has come to Court to seek redemption after the expiry of the period of limitation within which he could seek the determination about the terms and conditions of the mortgage being clog on the equity of redemption. The mortgage was created in the year 1943 and the suit for redemption has been filed on 15th April, 1975. The limitation of 60 years was reduced to 30 years by the Limitation Act of 1963. However, by the amended Act, which was further amended twice, wherever the limitation was reduced by the Limitation Act, 1963, the suit could be filed within 7 years of the enforcement of the Limitation Act of 1963 or within the period prescribed by the Indian Limitation Act, 1908, whichever period expires earlier. On this basis, the suit could be filed by 31st Dec., 1970. This would be shorter than 30 years' limitation provided by the 1963 Act, and, therefore, proviso to S.30(a) would apply and the suit for redemption could be filed till 18th Maghar Samvat 2030 BK, which would bring the matter to some date in the year 1973. Obviously, the suit filed in 1975 for redemption in the absence of the clause, which deferred the redemption by 59 years would be barred by time. Several cases were brought to my notice by the counsel for the mortgagee including Ganga Dhar's case, (AIR 1958 SC 770) (supra). In all these cases the suits for redemption were filed within limitation to be counted from the date of mortgage and even one case was not brought to my notice, where suit may have been filed beyond the limitation, to be calculated from the suit of mortgagor but within the time prescribed for redemption in the mortgage deed. Therefore, it is clear that if the mortgagor himself allowed the ordinary period of limitation to expire to seek redemption, after the expiry of limitation, he can only file a suit on the basis of the deferred date of redemption under the terms of the mortgage, which would be within time but he would not be entitled to say in such a suit (when filed beyond the period of limitation, to be counted from the date of the mortgage) that the deferred date of redemption amounts to clog on the equity of redemption and should be so held. Therefore, if the mortgagor wanted to avoid the deferred clause of 59 years on the plea of clog on the equity of redemption, he had to file a suit for redemption within 30 years from the date of the mortgage and if he had done so, the question of deferred date of redemption, whether it was clog or not, could be gone into. Accordingly, I hold on the aforesaid reasoning that the mortgagor is not entitled to urge that the deferred date of redemption by 59 years along with other terms of the mortgage amounts to clog on the equity of redemption and he should be relieved therefrom. Court will come to the rescue of an aggrieved person only if he comes in time. In a suit filed in 1975 when the limitation for redemption had expired in 1973, decree for redemption cannot be granted. This reasoning should not be understood to mean that even if the mortgagor files a suit for redemption within 30 years, to be calculated after the expiry of 59 years, the time fixed under the mortgage deed, that suit would be dismissed as time barred. On the aforesaid process of reasoning, all that is to be held in this case is that the suit is premature and the mortgagor would be entitled to file a suit for redemption within the limitation only after the expiry of the condition of 59 years as stated in the mortgage deed by which the right of redemption has been deferred.