R.S.A. No. 575 of 1989 (O&M) 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 575 of 1989 (O&M) Date of Decision : 8.1.2009 Teja Singh (dead through LRs) & others .......... Appellants Versus Amar Singh & others. ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. C.B. Goel, Advocate and Mr. Nitin Jain, Advocate for the appellants. Mr. C.B. Kaushik, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decrees dated 24.12.1986 and 2.11.1998 passed by the learned trial Court and the learned lower appellate Court respectively vide which suit filed by the plaintiff-appellants for redemption has been ordered to be dismissed. The plaintiff brought a suit for redemption of mortgage on the plea that one Smt. Aso sister of Indraj and daughter of Naraina resident of village Bhushla biswadar of village Bhagal was owner of agricultural land measuring 64 Kanals within the revenue estate of village Bhagal, Tehsil Guhla, District Kurukshetra. The land was mortgaged with possession with R.S.A. No. 575 of 1989 (O&M) 2 the defendants by Moman as General Attorney of Smt. Aso. The land was inherited from Smt. Aso by Moman, who sold the same to the plaintiffs vide registered sale deed dated 1.8.1980. Plaintiffs, thus, claimed that they being transferees of the suit land were entitled to possession of the suit land, on the ground that Smt. Aso was dead at the time of impugned mortgage. In the alternative it was claimed that the mortgage was redeemable on payment of mortgage amount of Rs. 8,000/- at any time, after five years as the stipulation of fifty years for redemption in the mortgage transaction dated 6.6.1966 was the result of fraud and was also a clog on the equity of redemption. The plaintiffs claimed that the mortgage amount was offered but the same was not accepted, hence the suit. The defendants contested the suit on merits as well as on the ground of jurisdiction of the Civil Court to try the suit. On the pleadings of the parties, the following issues were framed :- “1. Whether the plaintiffs are transferees of the mortgagers rights to redeem the suit property ? OPP 2. Whether Smt. Aso was dead at the time of execution of the impugned mortgage, if so to what effect ? OPP 3. Whether the stipulation as to the period of 50 years for redemption in the impugned mortgage was the result of fraud and is a clog on the equity of redemption ? OPP 4. Whether the rights of the defendants are protected under Section 43 of the Transfer of Property Act ? OPD R.S.A. No. 575 of 1989 (O&M) 3 5. Whether the impugned mortgage was in fact a sale of the land in favour of the defendants as alleged ? OPD 6. Relief. The following additional issue was also framed on 15.11.1986 :- “Whether the Civil Court has got no jurisdiction to try the suit as alleged ? OPD On appreciation of evidence brought on record the learned Courts below have recorded a concurrent finding of fact that the plaintiffs were transferees of the mortgagor's rights and entitled to redeem the suit property. Issue No.2 was decided against the appellants. The learned Courts below also held that the stipulation of 50 years for redemption in the mortgage deed was not result of fraud nor it could be said to be clog on equity of redemption. Issue No.5 was decided against the defendants and in favour of the plaintiffs and it was held that the mortgage was not sale in favour of the defendants. The additional issue was decided in favour of the plaintiffs and it was held that the Civil Court had the jurisdiction to try the suit. The finding recorded by the learned trial Court were affirmed by the learned lower appellate Court and the appeal filed by the plaintiffs/ appellant was ordered to be dismissed. R.S.A. No. 575 of 1989 (O&M) 4 Mr. C.B. Goel, learned counsel for the appellants contended that the learned Courts below were not right in deciding issue No.3 against the appellants. The contention of the learned counsel for the appellants is that the stipulation that the mortgage could not be redeemed for a period of 50 years is a clog on redemption and, therefore, could not come in way of the plaintiffs to seek possession by way of redemption. However, there is no force in the contention raised by the learned counsel for the appellants. The plaintiff-appellants failed to prove that there was any fraud played on the mortgagor. The learned Courts below rightly held that the allegations of fraud have not been proved. The learned Courts below rightly held that the mortgage was a registered document, which was executed after understanding the same and, therefore, it could not be said that the fraud had been played, especially when the challenge was made after expiry of so many years. The Court observed that the endorsement of the Registrar, Kaithal that the mortgage deed was read over and explained to Moman was to be believed in absence of any evidence to the contrary on record. This view of the learned Courts below finds support from the law laid down by this Court in the case of Naranjan Singh etc. Vs. Parsa Singh alias Parsu 1971 Current Law Journal 195. The contention of the learned counsel for the appellant that stipulation barring redemption for period of 50 years would be clog on equity of redemption, deserves to be rejected as there are no facts or evidence led to prove that the stipulation was accepted under some pressure R.S.A. No. 575 of 1989 (O&M) 5 or force. The support with regard to this view can be had from decision of this Court in the case of Parma Nand Vs. Babu Ram 1985 PLJ 391 wherein this Court has been pleased to hold that clog on equity of redemption is always a matter of facts and circumstances of each case. This Court again in the case of Massa Singh and others Vs. Gopal Singh and others AIR 1983 P&H 437 was pleased to lay down that in a suit for possession by way of redemption where the plaintiff did not rely upon, the use of undue influence or the fraud, but the mortgage was challenged only on the ground that the stipulation that the mortgage shall be redeemed after 90 years along with other convenants in the mortgage deed, amounted to a clog on equity of redemption, could not be accepted. It was also held that there was nothing on the record to show that the market price of the suit land when it was mortgaged was more than the mortgage amount. The situation in the present case is identical. This Court in the case of Massa Singh and others (supra) was pleased to hold as under :- “The terms as such could not be held to be unconscionable without there being any allegation of undue influence or fraud etc. There was no clog on the equity of redemption as per terms of the mortgage deed and the plaintiffs suit was liable to be dismissed being premature. The plaintiffs, held, were entitled to redeem the mortgage after the expiry of 90 years from the date of mortgage on payment of mortgage money.” The Hon'ble Supreme Court in the case of Gangadhar Vs. R.S.A. No. 575 of 1989 (O&M) 6 Shankar Lal and others AIR 1958 Supreme Court 770 did not find the period of 85 years fixed for redemption to be clog on equity. Faced with this situation the learned counsel for the appellant contended that the suit for redemption should be decreed by this Court, because the period stipulated in mortgage deed stands expired. In support the learned counsel for the appellant placed reliance on the judgment of the Hon'ble Supreme Court in the case of Vithalbhai Pvt. Ltd. Vs. Union Bank of India 2005(2) Civil Court cases 01 (SC), wherein the Hon'ble Supreme Court was pleased to lay down as under :- “21. A suit of a civil nature disclosing a cause of action even if filed before the date on which the plaintiff became actually entitled to sue and claim the relief founded on such cause of action is not to be necessarily dismissed for such reason. The question of suit being premature does not go to the root of jurisdiction of the Court; the Court entertaining such a suit and passing decree therein is not acting of the Court to grant decree or not. The Court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiff's entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before the date of maturity of cause of action, the Court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying the ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited R.S.A. No. 575 of 1989 (O&M) 7 advantage to plaintiff or disadvantage amounting to prejudice to the defendant, if any, would be relevant factors. A plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the Court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the Court shall not exercise its discretion in favour of decreeing a premature suit in the following cases : (i) When there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event; (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the Court's jurisdiction, and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (See : Samar Singh v. Kedar Nath and Ors. 1987 Supp. SCC 663) (supra). One more category of suits which may be added to - where leave of the Court or some authority is mandatorily required to be obtained before the institution and was not so obtained. In the case at hand, the act of the R.S.A. No. 575 of 1989 (O&M) 8 plaintiff filing the suit before 25.6.1984 cannot be said to be malicious or intended to overreach the Court. The defendant's reply dated 8.11.1983 prompted the plaintiff in filing the suit inasmuch as the plaintiff reasonably thought that a cloud was already cast on his entitlement to recover the property and he should promptly approach the Court. True, the defendant could have changed his mind and thought of delivering the possession of the property to the plaintiff on or after 25.6.1984 - the date whereafter only the suit could ordinarily have been filed and in that case there would have been no occasion at all for filing the suit. The defendant filed its written statement much after that date. The objection as to maintainability of the suit was taken in the written statement. If only it would have been formed that opinion at the preliminary stage then the plaintiff could have withdrawn the suit or the Court could have dismissed the suit as premature. In either case, the plaintiff would have filed a fresh suit based on the same cause of action soon after 25.6.1984. By the time the suit came to be decided on 12.2.1992, the dismissal of the suit on the ground of its being premature would have been a travesty of justice when the plaintiff was found entitled to a decree otherwise. The learned Single Judge rightly overruled the defendant's objection and directed the suit to be decreed. The Division Bench ought not to have interfered with the judgment and decree passed by the learned Single Judge.” However, the plea raised by the learned counsel for the appellant cannot be accepted. The Hon'ble Supreme Court nowhere laid down that the R.S.A. No. 575 of 1989 (O&M) 9 premature suit which is dismissed by the Courts below deserves to be allowed in the regular second appeal merely because as on the date of hearing of appeal the cause of action accrues to the plaintiffs. In the facts and circumstances of this case it was not open to the plaintiff-appellant to have filed suit prior to expiry of 50 years. The institution of suit by the plaintiff was in violation of the stipulation contained in the mortgage deed and the bar to suit continued till filing of written statement and, therefore, the learned Courts below were justified in dismissing the suit as premature. No fault, thus, can be found with the findings recorded by the learned Courts below, dismissing the suit for redemption filed by the plaintiffs/ appellants. This appeal raises no question of law, muchless substantial question of law. There being no merit in the appeal, is ordered to be dismissed but with no order as to costs. However, it is made clear that as the suit filed by the plaintiffs/ appellants was ordered to be dismissed as premature, the decision would not bar the fresh suit, if any, filed by the plaintiffs /appellants after the expiry of the period stipulated in the mortgage deed. 8.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE