IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No.127 of 1977 For Approval and Signature: Hon'ble MR.JUSTICE M.C.PATEL Sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- VRAJLAL CHHAGANLAL MEHTA SINCE D/D THRO' HEIRS & L/R. Versus SHAMJIBHAI KARSHANBHAI -------------------------------------------------------------- Appearance: MR PV HATHI for Appellant Nos.1-1/4 .......... for Respondent No. 1,2 MR JD AJMERA for Respondent Nos.1/1-1/6 DELETED for Respondent No. 2/1 UNSERVED-REFUSED (N) for Respondent No. 2/2 SERVED BY AFFIX.(N) for Respondent No. 3 -------------------------------------------------------------- CORAM : MR.JUSTICE M.C.PATEL Date of decision: 19/09/2002 ORAL JUDGEMENT 1. This Second Appeal under Section 100 of the Code of Civil Procedure arises out of a suit for redemption of mortgage of the two suit shops. Respondent Nos.1/1 to 1/6 are the heirs of the original plaintiff, Shamjibhai Karshanbhai. The appellants are the heirs of the original defendant No.3, Vrajlal Chhaganlal Mehta. Respondent No.2/2 is the heir of Lilavanti Makandas, the original defendant No.1. The original defendant No.2, Hasmukhrai Makandas Mehta, was impleaded as Respondent No.3 in the present appeal, but, after his death during the pendency of the appeal, his name stands deleted in view of the endorsement made by the learned counsel for the appellants on 29.10.2001. 2. The facts leading to the present litigation between the parties are not disputed and can shortly be stated as follows :- On 02.05.1933, Bai Zaver, the widow of Jeram Damji, mortgaged two suit shops (situated in village Timba, District Amreli) for Rs.500/- to Karsan Vashram, the father of the plaintiff. On 10.03.1936, the plaintiff sub-mortgaged one of the shops for Rs.425/- to Kanji Tulsi but the said mortgage was redeemed in 1940. On 13.03.1937, the plaintiff sub-mortgaged another suit shop for Rs.400/- to Mavji Kala and that mortgage was also redeemed in 1940. On 14.12.1940, the plaintiff sub-mortgaged both the shops for Rs.1,200/- to Makandas Chhaganlal Mehta. The mortgage document is produced at Exh.37. 3. On 07.06.1951, Makandas Chhaganlal Mehta transferred his right, title and interest in the suit shops, along with other properties, to his brother, Vrajlal Chhaganlal Mehta, the original defendant No.3, for Rs.7,168/-. The document is produced at Exh.38. 4. Shamjibhai Karshanbhai filed the present suit (Regular Civil Suit No.242 of 1970) in the Court of Civil Judge (J.D.), Rajula, Dist. Amreli on 31.12.1970 for redemption of the said mortgage dated 14.12.1940. 5. The contesting defendant was defendant No.3, who was in possession of the shops, by virtue of the transfer deed dated 07.06.1951, executed in his favour by his brother, Makandas Chhaganlal Mehta, who had taken the shops on mortgage from the plaintiff. 6. His main defence was that the plaintiff respondent No.1 was not entitled to redeem the mortgage in view of Condition No.5 of the Mortgage-deed, which provided that until the original owner Jeram Damji comes to redeem the mortgage, the plaintiff has no right to redeem. Learned trial Judge held that such a condition was a clog on the equity of redemption and he, therefore, rejected the said defence and upheld the plaintiff's right to redeem the mortgage. By his judgement and order dated 16.07.1973, he decreed the suit. 7. Vrajlal Chhaganlal Mehta, the original defendant No.3, filed an appeal in the Court of District Judge (Regular Civil Appeal No.50 of 1973), but the learned District Judge vide his judgement and decree dated 03.12.1976 dismissed the said appeal. Defendant No.3, therefore, filed the present Second Appeal challenging the judgement and decree of the courts below. At the time of admission, the following questions were formulated as substantial questions of law : (i) Whether the Plaintiff - respondent No.1 was entitled to redeem the mortgage in view of condition No.5 of the mortgage-deed, Ex.37 ? (ii) Whether the condition No.5 contained in mortgage document Ex.37 was capable of being enforced and was otherwise a clog on redemption making the said condition illegal or not ? 8. Shri P.V.Hathi, learned counsel for the appellants, contended that the courts below have erred in law in holding that the condition in question was a clog on the equity of redemption. He submitted that the plaintiff was a party to the said contract and he was bound by the condition and such a condition cannot be said to be a clog on the equity of redemption. In support of this, he cited two decisions. The first decision is of the Patna High Court in the case of Mt. Jugesri Kuer Vs. Aftab Chand (AIR 1928 Patna 582). In that case, the same property was mortgaged second time in favour of the same mortgagee to secure a further advance and there was a stipulation in the second bond, that in the event of non-payment on the due date, the mortgagor will pay the money before redeeming the first mortgage. It was held that there was no clog on the equity of redemption and the clause was not unenforceable in law. In my opinion, the said decision cited on behalf of the appellants is not applicable to the facts of the present case. The second decision cited on behalf of the appellants is of the Madras High Court in the case of Pyari Bibi (minor) and another Vs. Andi Ranga Chariar and Ors., 1956 Madras 691. However, in the said decision, the question which arose was under Section 61 of the Transfer of Property Act. No such question arises in the present case. 9. The learned trial Judge, in para 17 of the judgment, has rightly observed that the effect of the clause is that if the original owner Jeram Damji comes to redeem the property, it is he who takes away the property and the right of the plaintiff stands lost. Secondly, if Jeram Damji does not come then also, the clause provides that the plaintiff has no right to redeem and this also means that his right is lost. In the circumstances it has been rightly held that if the clause was enforced, the plaintiff would never be entitled to redeem the mortgage and, hence, it was certainly a clog on the equity of redemption. Moreover, when the original mortgage was executed by Bai Zaver in favour of the plaintiff in the year 1933, Jeram Damji was already dead so that Jeram Damji could never come forward to redeem the mortgage. 10. In my opinion both the courts below have rightly held that the condition in question was a clog on the equity of redemption and that it cannot be enforced. Hence, the questions which were formulated as "substantial questions of law" and which have been set out earlier are answered against the appellants. 11. The appeal, therefore, fails and is dismissed. No order as to costs. Sd/- [ M.C.PATEL, J ] 'Bhavesh'