Case: Shivdev Singh  Vs. Sucha Singh

Claiming to be the owner of the disputed property being land measuring 23 canals 2 marlas situate in village Sansra, Tehsil Ajnala, Punjab, the respondent-plaintiff filed a suit for possession by way of redemption against the appellants in the Court of Additional Senior Sub-Judge, Ajnala. The suit was decreed by the Trial Court with a direction for delivery of possession by way of redemption on payingdepositing the mortgage money of Rs. 7,000- minus the cost of the decree. The appeal filed by the appellants was dismissed by the First Appellate Court on 25th July, 1998 and second appeal was dismissed vide the judgment impugned in thisdisputed property was owned by one Prakash Singh who had mortgaged the same in favour of Smt. Basant Kaur for a sum of Rs. 7,000- vide mortgage deed dated 19.3.1968. The said Smt. Basant Kaur died whereafter the appellants herein stepped into her shoes qua the suit property and, according to the plaintiffs became mortgagees in possession of the said land. The said Shri Prakash Singh, the original owner, sold the land measuring 19 kanals 2 marlas out of the mortgaged property in favour of the respondent Sucha Singh vide registered sale deed dated 25th March, 1987 for a valid consideration by which the mortgage money of Rs. 7,000- was kept with the respondent-plaintiff as security (Amanat) to be paid to the appellants. It was further pleaded by the plaintiff that at the time of the original mortgage deed dated 19.3.1968 the said Shri Prakash Singh was financially tight and allegedly taking unde advantage of his poor financial condition and helplessness the appellants got incorporated a term in the mortgage deed, to the effect that the mortgage was for a period of 99 years which constituted a clog on the equity of redemption and that the appellants had been enjoying the usufructs of the mortgage for more than 20 years before the date of the filing of the suit. Despite the fact that the respondent-plaintiff had purchased only 19 kanals 2 marlas out of the mortgaged land, he offered the whole of the mortgage money to the appellants-defendant realising that partial redemption was not permissible. The appellants were stated to have refused to deliver possession which necessitated the filing of theSingh who was impleaded as defendant No. 3 was proceeded ex-parte. The appellants, though admitted that the disputed land under mortgage was in their possession on the basis of a mortgage for a sum of Rs. 7,000- since the year 1968, yet contended that the plaintiffs had no right to get the suit land redeemed before the expiry of mortgage period of 99 years. The suit was stated to be premature and liable to bethe basis of the pleadings of the parties, the Trial Court framed the followingWhether the disputed land is liable to be redeemed in favour of the plaintiff as claimed through this Suit ? OPP.2. Whether the period of 99 years of mortgage is a clog on the equity of redemption ? OPP.3. Whether the plaintiff has no locus standi to file this suit ? OPD4. ReliefTrial Court while deciding Issue Nos. 1 and 2clause in the mortgage deed providing for the mortgage of the land for a period of 99 years constitutes a clog on the equity of redemption and as such is illegal and void and the same cannot be allowed to stand in the way of the plaintiff to get the suit land redeemed or acquire its possession. The statutory right of redemption cannot be fettered by any condition which impedes or prevents the redemption clause. This view stands fully fortified from the relevant law laid down through an authority, 1992(1) All India Land Laws Reporter (P&H) 524, Ajit Singh v. Kakhbir Singh and others. As such the argument advanced on behalf of the defendants on this account must fail. The case of the plaintiff could not be resisted on any other cogentplaintiff-respondent was held to have proved that he was entitled to get whole of the disputed land redeemed by payment of the mortgage money of Rs. 7,000- to the appellants-defendants. In view of positive findings on Issue Nos. 1 and 2 in favour of the plaintiffs, issue No. 3 was decided against the defendants and suit decreed as noticed earlier. The appellate Court also decided on facts that the plaintiff after the purchase of the land, the subject matter of the suit, had become mortgagor and was entitled to redeem the same prior to the period of 99 years fixed in the mortgage deed. The clog or fetter of redemption imposed in the mortgage deed was held to be void which did not prevent the plaintiffs to seek redemption of the mortgaged property prior to the aforesaid80 of the Transfer of Property Act provides that at any time after the money has become due, the mortgagor has a right, on payment or tender, at a proper time and place of the mortgagor-money to require the mortgagee to deliver the mortgage-deed and all documents relating to the mortgaged property and where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor. Such a right of the mortgagor is called, in English Law, the equity of redemption. The mortgagor being an owner who has parted with some rights of ownership has a right to get back the mortgage deed or mortgaged property, in exercise of this right of ownership. The right of redemption recognised under the Transfer of Property Act is thus a statutory and legal right which cannot be extinguished by any agreement made at the time of mortgage as part of the mortgagedisputed property was owned by one Prakash Singh who had mortgaged the same in favour of Smt. Basant Kaur for a sum of Rs. 7,000vide mortgage deed dated 19.3.1968. The said Smt. Basant Kaur died whereafter the appellants herein stepped into her shoes qua the suit property and, according to the plaintiffs became mortgagees in possession of the said land. The said Shri Prakash Singh, the original owner, sold the land measuring 19 kanals 2 marlas out of the mortgaged property in favour of the respondent Sucha Singh vide registered sale deed dated 25th March, 1987 for a valid consideration by which the mortgage money of Rs. 7,000was kept with theas security (Amanat) to be paid to the appellants. It was further pleaded by the plaintiff that at the time of the original mortgage deed dated 19.3.1968 the said Shri Prakash Singh was financially tight and allegedly taking unde advantage of his poor financial condition and helplessness the appellants got incorporated a term in the mortgage deed, to the effect that the mortgage was for a period of 99 years which constituted a clog on the equity of redemption and that the appellants had been enjoying the usufructs of the mortgage for more than 20 years before the date of the filing of the suit. Despite the fact that thehad purchased only 19 kanals 2 marlas out of the mortgaged land, he offered the whole of the mortgage money to thePrakash Singh whowas impleaded as defendant No. 3 was proceededThe appellants, though admitted that the disputed land under mortgage was in their possession on the basis of a mortgage for a sum of Rs. 7,000n the basis ofthe pleadings of the parties, the Trial Court framed the followingWhether the disputed land is liable to be redeemed in favour of the plaintiff as claimed through this Suit ? OPP.2. Whether the period of 99 years of mortgage is a clog on the equity of redemption ? OPP.3. Whether the plaintiff has no locus standi to file this suit ? OPD4. Relief

Reasoning:
nt was held to have proved that he was entitled to get whole of the disputed land redeemed by payment of the mortgage money of Rs. 7,00080 of the Transfer of Property Act provides that at any time after the money has become due, the mortgagor has a right, on payment or tender, at a proper time and place of theto require the mortgagee to deliver theand all documents relating to the mortgaged property and where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor. Such a right of the mortgagor is called, in English Law, the equity of redemption. The mortgagor being an owner who has parted with some rights of ownership has a right to get back the mortgage deed or mortgaged property, in exercise of this right of ownership. The right of redemption recognised under the Transfer of Property Act is thus a statutory and legal right which cannot be extinguished by any agreement made at the time of mortgage as part of the mortgageright of redemption, therefore, cannot be taken away. The Court will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage. One thing, therefore, is clear, namely, that the term in the mortgage contract, that on the failure of the mortgagor to redeem the mortgage within the specified period of six months the mortgagor will have no claim over the mortgage property, and the mortgage deed will be deemed to be a deed of sale in favour of the mortgagee, cannot be sustained. It plainly takes away altogether, the mortgagors right to redeem the mortgage after the specified period. This is not permissible, for "once a mortgage always a mortgage" and therefore always redeemable.It was further held that Section 60 of the Transfer of Property Act confers on the mortgagor right of redemption which is a statutory right. The right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage subsists. Whether in a particular case there is any clog on the equity of redemption, has to be decided in view of the background of a particular case. The doctrine of clog on equity of redemption has to be moulded in modern conditions.In the present case all the Courts below on facts held that the mortgage deed being for a period of 99 years was a clog on the equity of redemption. Such findings were returned keeping in view the facts and circumstances of the case and the financial position under which the mortgagor Shri Prakash Singh was placed at the time of execution of the mortgage deed on 19.3.1968. The appellants were found to be in an advantageous position qua the mortgagor. They were also found to be deriving the usufructs of the mortgaged land for a period of over 26 years at the time of filing of the suit on payment of meagre sum of Rs. 7,000only to the mortgagor. The findings of the facts returned by the Courts below do not require any interference particularly when the learned counsel appearing for the appellants has not contended that such findings were perverse or uncalled for or against the evidence.