Appeal No 484 of 1961
Appeal by special leave from the judgment and decree dated March 28 1958 of the Rajasthan High Court Jaipur Bench at Jaipur in D B Civil First Appeal No 64 of 1951
Sarjoo Prasad and Harbans Singh for the appellants
B P Sinha and Naunit Lal for the respondents
May 8 1964
The Judgment of the Court was delivered by GAJENDRAGADKAR CJ
This appeal by special leave arises out of a redemption suit filed by the respondent Dev Karan against the appellant Murarilal
The mortgage sought to be redeemed was executed on the 19th March 1919 for a sum of Rs 6500
The mortgaged property consisted of a shop which was delivered over in the possession of the mortgagee after the execution of the mortgage deed
The mortgage deed had provided that the amount due under the mortgage should be repaid to the mortgagee within 15 years whereupon the property would be redeemed
It had also stipulated that if the payment was not made within 15 years the mortgagee would become the owner of the property
The mortgagor was Mangal 241 Ram who died and the respondent claims to be the heir and legal representative of the said deceased mortgagor
In the plaint filed by the respondent it was averred that the transaction was in substance a mortgage and the mortgagor s right to redeem was alive even though the stipulated period of 15 years for the repayment of the loan had passed
On these allegations the respondent claimed a decree for redemption of the suit mortgage on payment of Rs 6500
It appears that the original mortgagee Gangadhar had also died before the institution of the suit and so the appellant Murarilal was impleaded as the defendant on the basis that he was the only heir and legal representative of the deceased mortgagee Gangadhar
The claim for redemption thus made by the respondent was resisted by the appellant on several grounds
It was alleged that after the expiry of the stipulated period of 15 years the property had become the absolute property of the mortgagee and it was urged that the original transaction was in substance and in reality not a mortgage but a sale
Several other pleas were also raised by the appellant in resisting the respondent s claim but it is unnecessary to refer to them
The learned trial Judge framed appropriate issues which arose on the pleading of the parties
In substance he field that the claim for redemption made long after the 15 years  period had expired could not be sustained
Findings were made on other issues also and they were against the respondent
In the result the respondent s suit was dismissed
The respondent then took the matter in appeal before the Rajasthan High Court
He urged that the view taken by the trial Court that the stipulation as to the mortgagor s liability to re pay the loan within 15 years did not bar his present suit for redemption because the said stipulation amounted to a clog on the equity of redemption and as such could not affect the mortgagor s right to redeem and he added that the transaction in substance was a mortgage and not a sale and so his right to redeem was alive and could be effectively enforced by the present suit
The High Court has upheld his first contention that the relevant 51 SC 16
242 provision as to the period within which the mortgage amount had to be repaid amounted to a clog on the equity of redemption and could not be pleaded as a bar to the present suit
But on the question about the character of the origi nal transaction itself the High Court appears to have been inclined to take the view that the relevant clause on which the plea about the bar was raised did not really support the said plea because it was by no means clear that even after the expiration of 15 years the mortgagee was intended to be the absolute owner of the property
On these findings the decree passed by the trial Court dismissing the respondent s suit has been reversed and the suit has been remanded to the trial Court to be disposed of in accordance with law
It is against this order that the appellant has come to this Court by special leave
Pending the appeal before this Court both the appellant and the respondent have died and their respective heirs have been brought on the record
The first question which calls for our decision is whether the relevant clause on which the appellant relies makes the mortgagee the owner of the property at the end of the sti pulated period of 15 years
The mortgage provides inter alia that after the house which was the mortgage property was delivered over to the mortgagee it was open to him either to live in it or to let it out to tenants
The mortgagee was further given liberty to spend up to Rs 35 for repairing the house and if more expenses were intended to be incurred the aid expenditure would be incurred through the mortgagor
On the expenditure thus incurred the mortgagor was liable to pay interest at the rate of As 0 6 0 per cent per month
Then the document proceeded to add that the mortgagor would get the property redeemed on payment of the mortgage amount as well as the cost of Patta which may have been incurred by the mortgagee and the repairing expenses within a period of 15 years
Then occurs the relevant clause After the expiry of the stipulated period of 15 years this shop would be deemed as an absolute transfer Mala Kalam for this very amount
Till the mortgage money is paid I shall have no concern with the shop
 The High Court appears to have taken the view that the words Mala Kalam which occur at 243 the end of the relevant clause do not necessarily import the notion that the mortgage property would be the absolute property of the mortgagee
According to the High Court the said words literally mean where there is no scope for having any say
If that is the meaning of the relevant words it seems difficult to accept the view that the document did not intend to make the mortgagee the owner of the property at the end of 15 years if the debt due was not paid within that period
When the document says that there would be no scope for the mortgagor to say anything it necessarily means in the context that the mortgagor would in that case have lost his title to the property and that means the mortgagee would become the absolute owner of the property
Therefore we feel no difficulty in holding that if the terms of the document were to prevail the appel lant s contention that the present suit for redemption is barred must succeed
It is common ground that the amount due under the mortgage deed was not paid by the mortgagor or his heir within the stipulated period and that would extinguish the title of the mortgagor and make the mortgagee to be the owner of the property
But the question is whether such a stipulation can be allowed to be pleaded as a bar to the respondent s claim for redemption
Just as it is common ground that if the terms of the document were to prevail the suit would be barred it is also common ground that if the doctrine that the clog on the equity of redemption cannot be enforced is to prevail in the present proceedings the respondent s action for redemption must succeed
The fact that a stipulation of the kind with which we are concerned in the present case amounts to a clog on the equity of redemption is not and cannot be disputed
Therefore the main question which arises in the present appeal is does the equitable doctrine ensuring the mortgagor s equity of redemption in spite of a clog created on such equity by stipulations in the mortgage deed apply to the present case This question arises in this form because the Transfer of Property Act did not apply to Alwar at the time when the mortgage was executed nor at the time when the 15 years  stipulated period expired
244 Mr Sarjoo Prasad for the appellant contends that the High Court was in error in applying the equitable principle because the said principle cannot be invoked in cases where the Transfer of Property Act does not apply
In support of this argument he has very strongly relied on an early decision of the Privy Council pronounced in 1870 in the case of Pattabhiramier vs Vencatarow Naicken and Narasimha Naicken1
In that case the Privy Council was dealing with a Bye bil wuffa or mortgage and conditional sale usufructuary executed in 1806 under which the mortgagees were put in possession
The deed contained a condition that if the mortgagor failed to redeem within five years the conditional sale was to be absolute
The mortgagor failed to redeem within the stipulated period and the mortgagee without foreclosing the mortgage sold the mortgaged pro perty
Thereafter the mortgagor s representative sued to redeem the mortgage under section 8 of the Madras Regulation XXXIV of 1802
The Privy Council held that the interest of the mortgagee after the expiry of the stipulated period had become absolute
In dealing with this question Lord Chelmsford who delivered the opinion of the Board observed that the form of security with which the Board was concerned had long been common in India and he added that the sti pulations in such contracts were recognised and enforced according to their letter by the ancient Hindu law as well as under Mohammedan law and in support of this statement reference was made to certain passages from Colebrooke s Digest on Hindu Law and Baillie s introduction to his book on Mohammedan Law of Sale
If the ancient law of the country observed Lord Chelmsford has been modified by any later rule having the force of law that rule must be founded either on positive legislation or on established practice and since neither any specific statutory provision had been cited before the Board nor established practice in that behalf had been proved the Privy Council upheld the mortgagee s plea that he became the absolute owner of the property at the expiration of the stipulated period
While pronouncing this decision Lord Chelmsford however took the precaution of adding that while the Board was allowing 1 1890 13 Moore s IA 560 245 the appeal it must not be supposed that their Lordships design to disturb any rule of property established by judicial decisions so as to form part of the Law of the Forum wherever such may prevail or to affect any title founded thereon
 As we will presently point out the appeal of Pattabhiramier was pending before the Privy Council for as many as 10 years
Meanwhile Indian High Courts were enforcing the equitable principle that stipulations contained in mortgage deeds which amounted to clog on the equity of redemption could not be enforced
In other words the jurisdiction which courts of equity exercised in England by refusing to enforce clogs on the equity of redemption was being exercised by High Courts in India
However before we refer to those decisions it would be convenient to cite another decision of the Privy Council pronounced in Thumbusawmy Moodelly vs Hossain Rowthen  Ors1
In that case the Privy Council held that the con tract of mortgage by conditional sale is a form of security known throughout India and by the ancient law of India it must be taken to prevail in every part of India where it has not been modified by actual legislation or established practice and so must be enforced according to its letter
In this case Sir James W Colvile who delivered the opinion of the Board referred to the earlier decision of the Privy Council in Pattabhiramiers case1 noticed the trend of judicial pronouncements made by the High Courts in India while Pattabhiramier s case was pending before the Privy Council and strongly reiterated the view that the said decisions of the High Courts were radically unsound
He referred to the fact that unfortunately Pattabhiramier s case  slept for nine years and that in the interval the Sudar Court and afterwards the High Court which succeeded it continued the course of decision which the former had given in 1858
Then he mentioned the relevant decisions of the Madras and the Bombay High Courts and expressed the opinion that in trying to enforce principles of equity in dealing with stipulations contained in mortgage documents the High Courts were really assuming the functions of Legislature
So it is clear that the Privy Council emphatically 1 ILR 2 1870 13 MIA 246 declared in 1875 that unless there is a legislative enactment or established practice to the contrary terms in the contract of mortgage by conditional sale must be taken to prevail in every part of India and must be strictly enforced according to their letter
Mr Sarjoo Prasad naturally relies on these decisions and contends that so far as the State of Alwar is concerned there is no legislative enactment to the contrary nor is there any established practice on which the equitable doctrine could be pleaded by the respondent in support of his case that though 15 years have elapsed his right to redeem still survives
There are two other decisions of the Privy Council to which we may refer at this stage
In Kader Moideen V Nepean1 the Privy Council was dealing with a case from Burma and it observed that the Burmese Courts are directed in the absence of any statutory law applicable to accounts against a mortgagee in possession to follow the guidance of justice equity and good conscience
Acting on this principle the Privy Council accepted Mr Haldane s contention that there was no rule of abstract justice in taking the accounts of a mortgagee in possession and that the Indian rule which was embodied in section 76 of the Transfer of Property Act should though the Act had not been extended to Burma be followed there in preference to the English practice
It would thus be seen that the equitable principle underlying the provisions of section 76 was extended to the case on the specific ground that the Burmese Courts had been directed by the relevant statutory provision to follow the guidance of justice equity and good conscience in the absence of any statutory law applicable to accounts against a mortgagee in possession
This decision therefore is in line with the two earlier decisions of the Privy Council
Similarly in Mehrban Khan vs Makhna2 where the Privy Council was dealing with the provisions in a mortgage deed conferring on the mortgagee upon redemption an interest in the mortgaged property it was held that the said provisions amounted to a clog or fetter on the equity of redemption and as such were void not only against the mortgagor but also against the purchaser of his interest 1 25 IA 241 2 57 IA 168 247 since they were inconsistent with the very nature and essence of a mortgage
In this case again section 28 of Regulation No VII which was applicable to the North West Frontier Province had expressly provided that in cases not otherwise specially provided for the Judges shall decide according to justice equity and good conscience and so recourse to the equitable doctrine was permissible because there was the statutory mandate requiring the Judges to apply the said doctrine where there was no specific legislative provision in relation to the matter with which they were dealing
Though the position of the Privy Council decisions is thus clear and consistent the trend of the decisions of the High Courts in India continued to conform to the same pattern which was set up by the decision of the Madras High Court in the case of Venkata Reddi vs Parvati Ammal1 and adopted by the Bombay High Court in Ramji bin Tukaram vs Chinto Sakharam 2
The question was elaborately argued on several occasions before the said High Courts and the two earlier decisions of the Privy Council in the case of Pattabhiramier3 as well as in the case of Thumbuswamy Moodelly4 were cited and yet the High Courts have con sistently adhered to the view that in dealing with mortgage transactions which contain unfair unjust or oppressive stipulations unreasonably restricting the mortgagor s right to redeem the Court would be justified in refusing to enforce such stipulations and recognising the paramount character of the equity of redemption
In Bapuji Apaji vs Sonavaraji Marvati5 Westropp CJ has elaborately considered the relevant aspects of this question
He referred to the two Privy Council s decisions and observed that the doctrine of Ramji vs Chinto2 had been uniformly followed in the Bombay Presidency in a multitude of cases and he saw no reason to depart from that decision
In expressing his firm adherence to the pattern of the law prescribed by the decision of the Bombay High Court in Ramji vs Chinto the learned Chief Justice elaborately considered all the precedents on the point trend of authorities bearing on the question the opinion of scholars and held that he was inclined 11 Mad
HC Rep 460 2 1 Bom
HCRep
199 1864 3 1870 13 MIA 560 4 ILR 5 ILR 248 to take the law to be that which was settled in Ramji vs Chinto1 and gave effect to it
So far as the Bombay High Court is concerned the practice consistently had been to follow the decision of Westropp CJ till the Transfer of Property Act was extended to Bombay
In Madras we find that same position
In Ramasami Sastrigal vs Samivappanayakan2 the majority view of the Full Bench was that in the Madras Presidency where con tracts of mortgage by way of conditional sale have been entered into subsequent to the year 1858 redemption after the expiry of the term limited by the contract must be allowed
The point with which we are dealing in the present appeal was elaborately argued before the Madras High Court the opinion expressed emphatically by the Privy Council was cited but Turner CJ with whose opinion Muttusami Ayyar J agreed made a very significant observation after elaborately examining the merits of the questions For these reasons said the learned CJ we conceive that we shall not be wanting in due respect for the distinguished tribunal by whose decisions we are bound if we follow the course they have pronounced there were strong reasons for adopting and apply the rules introduced however erroneously by judicial decisions in these provinces
 That view has prevailed in the Madras High Court ever since
These decisions show that the High Courts in India conformed to the view that whether or not there is a statutory provision directing the Judges to give effect to the principles of justice equity and good conscience it is their duty to enforce that principle where they are dealing with stipulations introduced in mortgage transactions which  appear to them to be unreasonable oppresive or unjust
It is true that according to the strict letter of the ancient Hindu Law a stipulation that the mortgagor shall pay the amount advanced to him by the mortgage within a specified period was intended to be enforced
The ancient Hindu law texts use the word Adhi to denote pledge of a movable or mortgage of immovable property
IV 124 divides Adhi into two sorts viz one that is to be redeemed within 1 1 Bom
HC Rep 199 Mad 179 at P 190 249 a certain time fixed by agreement at the time of contracting the debt or to be retained till the debt is paid off
In regard to the first category of mortgages if the money is not paid at the time fixed the thing pledged or mortgaged would belong to the creditor vide Yaj
58 and as explained by Mitakshara 1
It also appears that if the mortgage is not redeemed even when the debt has grown to double of the principal by non payment of the interest agreed upon the mortgagor lost his title over the mortgaged property so that it must be conceded that under the strict letter of the Hindu law texts if a mortgage deed contains a stipulation for the repayment of the mortgage amount within a specified period at the expiration of the said period the mortgagor may lose his title over the mortgaged property
The principle underlying this provision appears to be that Hindu law as enunciated by the ancient texts attached considerable importance to a person keeping his promise
Though that is so we ought also to add that according to Sir R B Ghose ordinarily time was not of the essence of the contract of mortgage in Hindu law1 and in support of this opinion the learned author quotes with approval Colebrooke s opinion
Basing himself on this position of the Hindu law Mr Sarjoo Prasad contends that we ought to assume that Hindu Law which was applicable to Alwar recognised the importance of compelling the mortgagor to perform his promise that he would repay the debt within a specified time and if he tailed to do so he would lose his title over the mortgaged property
He urged that the dispute between the parties in the present appeal should be decided in the light of this position of the Hindu law as well as the principles enunciated by the Privy Council in the cases of Pattabhiramier3 and Thumbusawmy Moodelly 4
In dealing with this argument it would be relevant to observe that traditionally courts in India have been con sistently enforcing the principles of equity which prevent the enforcement of stipulations in mortgage deeds which un reasonably restrain or restrict the mortgagor s right to 1 Dr Kane s History of Dharmasastra Vol
128 1 Ghose on The Law of Mortgage in India  Tagore Law Lectures 1875 6 5th Ed
I p 56
3 1870 13 MIA 560 4 ILR 250 redeem
We may in this connection refer to some of the statutes which were in force in India
The old Bengal Regulation III of 1793 by section 21 directed the Judges of the District and City Courts in cases where no specific rule existed to act according to justice equity and good con science
Similar provision occurs in section 17 of the Madras Regulation II of 1802
The Bengal Civil Courts Act 1887 and the Madras Civil Courts Act 1873 contain similar pro visions in sections 37 and 16 respectively
Likewise in regard to Courts in the Mufassal of Bombay Bombay Regulation IV of 1827 by section 26 provides that the law to be observed in the trial of suits shall be Acts of Parliament and Regulations of Government applicable to the case in the absence of such Acts and Regulations the usage of the country in which the suit arose if none such appears the law of the defendant and in the absence of specific law and usage equity and good conscience
In fact in Namdeo Lokman Lodhi vs Narmadabai1 this Court has emphatically observed that it is axiomatic that the courts must apply the principles of justice equity and good conscience to transactions which come before them for determination even though the statutory provisions of the Transfer of Property Act are not made applicable to these transactions
These observations in substance represent the same traditional judicial approach in dealing with oppressive unjust and unreasonable restric tions imposed by the mortgagees on needy mortgagors when mortgage documents are executed
There is one other circumstance to which we ought to refer
We do not know what the true position of the Hindu law was in the State of Alwar at the relevant time
In fact we do not know what the provisions of the Contract Act were in the State of Alwar
Even so we think it would be reasonable to assume that civil courts established in the State of Alwar were like civil courts all over the country required to administer justice and equity where there was no specific statutory provision to deal with the question raised before them
Whether or not the Hindu law which prevailed in Alwar was similar to that prescribed by ancient Hindu Sanskrit texts is a point on which no material is produced 1  251 before us
It may well be that just as in Bombay and Madras notwithstanding the ancient provisions of Hindu Law which seem to entitle the mortgagee to insist upon the performance of a stipulation as to time within which the mortgage debt has to be paid the High Courts had con sistently refused to enforce such stipulations the Courts in the State of Alwar also may have adopted the same approach
In the absence of any material on the record on the point we are reluctant to accept Mr Sarjoo Prasad s argument that the doctrine of equity and justice should be treated as irrelevant in dealing with the present dispute
In this connection it is material to refer to the recent decisions pronounced by the Rajasthan High Court in which this position has been upheld either because it was conceded or because the High Court took the view that the principles of equity were enforceable in dealing with mortgage transactions in Rajasthan
In Amba Lal vs Amba Lal1 the Rajasthan High Court held that section 60 and its proviso contained a general principle of law applicable to mortgages in this country which should be applicable even in those places where the Transfer of Property Act may not be in force as such but where its principles may be in force
The property in question which was the subject matter of the mortgage was situated in the State of Udaipur
Similarly in the case of Seleh Raj vs Chandan Mal2  the Rajasthan High Court held that the principle underlying section 60 may well be regarded to be a salutary one and in accordance with the principles of equity justice and good conscience
Accordingly it took the view that though the Transfer of Property Act may not be in force in the territory in question it would not be unreasonable to decide a case in accordance with the principles underlying the said section
The property with which the Court was concerned in this case was situated in the State of Jodhpur
The same principle has been applied in Himachal Pradesh vide Nainu vs Kishan Singh
1 ILR r957 Raj
2 ILR 3 AIR T957 HP 46 252 Thus it is clear that the equitable principle of justice equity and good conscience has been consistently applied by Civil Courts in dealing with mortgages in a substantial part of Rajasthan and that lends support to the contention of the respondent that it was recognised even in Alwar that if a mortgage deed contains a stipulation which unreasonably restrains or restricts the mortgagor s equity of redemption courts were empowered to ignore that stipulation and enforce the mortgagor s right to redeem subject of course to the general law of limitation prescribed in that behalf
We are therefore satisfied that no case has been made out by the appellant to justify our interference with the conclusion of the Rajasthan High Court that the relevant stipulation on which the appellant relies ought to be enforced even though it creates a clog on the equity of redemption
In the result the appeal fails and is dismissed with costs


Summary:
The respondent sought to redeem a mortgage executed in the State of Alwar in 1919
By a stipulation in the mortgage deed the mortgagor agreed that if the debt was not paid within 15 years the mortgagee would become the owner of the property
The respondent s case was that the transaction was a mortgage and that he could redeem the mortgage even though the stipulated period was over
The appellant resisted the suit on the ground that the transaction amounted to a sale and not a mortgage
The trial Judge dismissed the suit holding that the claim for redemption was not maintainable after the expiry of the stipulated period
The Rajasthan High Court on appeal reversed the decision of the trial Judge holding that the stipulation was a clog on the equity of redemption and remanded the suit
The stipulation in question I was as follows After the expiry of the stipulated period of 15 years this shop would be deemed as an absolute transfer Mala Kalam  for this amount
Till the mortgage money is paid I shall have no concern with the shop
 HeldIf the stipulation were to prevail the use of the words mala kalam  which meant that there would be no scope for the mortgagor to say anything would indicate that the mortgagee became the absolute owner of the property
But the stipulation which was undoubtedly a clog on the equity of redemption must fail and the suit for redemption must succeed
240 The equitable principle of justice equity and good conscience long and consistently applied by Civil Courts in lndia could be applied in the State of Alwar even though the Transfer of Property Act had no application there at the time when the mortgage document was executed or its period expired
The strict provisions of the texts of Hindu Law in this regard would be of no avail
Namdeo Lokman Lodhi vs Narmadabai   applied
Pattabhiramier vs Vencatarow Naicken and Narasimha Naicken 1870 13 MIA 560 and Thumbusaway Moodelly vs Hossain RowthenILR I Mad 1 considered
 Venkata Reddy vs Parvati Ammal I Mad
HC Rep 460 Ramji bin Tukaram vs Chinto Sakharam I Bom
HC Rep 199 1864 Bapuji Apaji vs Senavaraji Marvadi ILR 11 Bom
231 Ramasami Sastrigal V Samiyappanayakan ILR 4 Mad 179 Amba Lal vs Amba Lal ILR  Seleh Raj vs Chandan Mal ILR and Nainu vs Kishan Singh AIR 1957 HP 46 referred to