Case: Muramlal Vs. Dev Karan

be decided in the light of the position of the Hindu law as well as the principles enunciated by the Privy Council in the cases of Pattabhiramier, 13 Moo Ind App 560 (PC) and Thumbusawmy Modelly, ILR 1 mad 1 (PC).15. In dealing with this argument, it would be relevant to observe that traditionally, courts in India have been consistently enforcing the principles of equity which prevent the enforcement of stipulations in mortgage deeds which unreasonably restrain or restrict the mortagors right to 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 S. 21 directed to Judges of the District and City Courts in cases where no specific rule existed to act according to justice, equity and good conscience. Similar provision occurs in S. 17 of the Madras Regulation II of 1802. The Bengal Civil Courts Act, 1887 and the Madras Civil Courts Act, 1873 contain similar provisions in Ss. 37 and 16 respectively. Likewise, in regard to Courts in the Mufassal of Bombay, Bombay Regulation IV of 1827 by S. 26 provides that the law to be observed in the trial off 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 is 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 v. Narmadabai, 1953 SCR 1009 : (AIR 1953 SC 228 ) 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 restrictions imposed by the mortgagees on needy mortgagors when mortgage documents are executed.16. 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 before us. It may, well be that just as in Bombay and Madras, notwithstanding the ancient provisions of Hindu Law which seems 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 consistently 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, i .e., are reluctant to accept Mr. Sarjoo Prasads argument that the doctrine of equity and justice should be treated as irrelevant in dealing with the present dispute.17. 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 v. Amba Lal, ILR (1957) 7 Raj 964 : (AIR 1957 Raj 321 ) the Rajasthan High Court held that S. 60 and its proviso contained a general principle of law applicable to mortgages in this country, which would 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.18. Similarly, in the case of Saleh Raj v. Chandan Mal, ILR (1960) 10 Raj 88 : (AIR 1960 Raj 47 ) the Rajasthan High Court held that the principle underlying S. 60 may well be regarded to be a salutary one and in accordance with the principles of equity, justice and good conscience. According 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 thd said section. The property with which the Court was concerned in this case was situated in the State of Jodhpur.19. The same principle has been applied in Himachal Pradesh, vide Nainu v. Kishan Singh, AIR 1957 Him Pra 46.20. 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 lands 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 mortgagors equity of redemption courts were empowered to ignore that stipulation and enforce the mortgagors 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]12. 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, oppressive or unjust.13. 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 mortgagee within a specified period, was intended to be enforced. The ancient Hindu law texts use the word "Adhi" to denote pledge o a movable or mortgage of immovable property. Nar. IV 124 divides Adhi into two sorts, viz., one that is to be redeemed within a certain time fixed(by agreement at the time off 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. II. 58 and as explained by (Mitakshara.*) It also appears that if the mortgage is not redeemed even when the debt has grown to double off 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 Law+and in support of this opinion the learned author quotes with approval Colebrookesdo 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 before us. It may, well be that just as in Bombay and Madras, notwithstanding the ancient provisions of Hindu Law which seems 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 consistently 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, i .e., are reluctant to accept Mr. Sarjoo Prasads argument that the doctrine of equity and justice should be treated as irrelevant in dealing with the present dispute.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 lands 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 mortgagors equity of redemption courts were empowered to ignore that stipulation and enforce the mortgagors 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.