Shiv Kumar Sharma, J. - (1.) The point of importance that arises in the instant appeals concerns the interpretation of 'clog on the equity of redemption'. The phrase 'clog on the equity of redemption' is nowhere used in the Transfer of Property Act (for short TP Act'). The doctrine is implicit in the language of Section 60 of TP Act, which deals with the mortgagor's right to redeem. The first proviso to Section 60 TP Act contemplates the extinguishment of the right of redemption by the act of the parties or by a decree of the Court.
(2.) The facts giving rise to these appeals are as under :- Abdul Gani, the plaintiff filed a suit for specific performance of agreement to sell against Abdul Gafoor, the defendant, with the averments that on 17/2/1971, the defendant obtained loan in the sum of Rs. 2.500.00 from the plaintiff by mortgaging his house situated at Ghat Darwaja Jaipur and executed a mortgage deed on 17/2/1971. On 8/9/1971 the defendant required more money, therefore, he agreed to sell his house in consideration of Rs. 6,000.00. The amount of Rs. 2,500.00 already paid under mortgage was adjusted towards the sale price of the house and remaining amount of Rs. 3,500.00 was paid to the defendant and the receipt was obtained. The agreement to sell was drawn on 8/9/1971 with a promise to execute the sale-deed within 15 days. When the sale-deed was not executed the plaintiff instituted the suit for specific performance of the agreement dated 8/9/1971 and also claimed mesne profit at the rate of Rs.100.00 per month.
(3.) The defendant in the written statement admitted the mortgage, but denied to have executed agreement to sell on 8/9/1971. He also pleaded that he never received Rs.3,500.00 from the plaintiff.;