Case: Pomal Kanji Govindji and Ors Vs. Vrajlal Karsandas Purohit and Ors

It is necessary to have a conspectus of the facts involved in each of the cases herein. We may start with the facts relating to Special Leave Petition (Civil) No. 8219 of 1982 because that is a typical case.2. In this matter by our order dated 9th January 1988 we had directed that this special leave petition should be heard first in these series of matters. We do so accordingly. We grant leave and dispose of the appeal by the judgment herein along with other appeals.3. This is an appeal from the judgment and order of the Gujarat High Court, dated 26th April, 1982 dismissing the second appeal. The High Court observed that the learned Judge had followed the judgment of the said High Court in Khatubai Nathu Sumra v. Rajgo Mulji Nanji and Ors AIR1979Guj171 , where the learned Single Judge in the background of a mortgage, where the mortgagor was financially hard-pressed and the mortgage was for 99 years and the terms gave the mortgage the right to demolish existing structure and construct new one and the expenses of such to be reimbursed by mortgagor at the time of redemption, it was held that the terms were unreasonable, unconscionable and not binding. In order, however, to appreciate the contentions urged therein, it will be necessary to refer to the decision of the first Appellate Court, in the instant case before us. By the judgment, the Assistant Judge, Kutch at Bhuj in Gujarat disposed of two appeals. These appeals arose from the judgment and decree passed by the Civil Judge, Bhuj, in Regular Civil Suit No. 35/72 by which the decree for redemption of mortgage was passed and the tenants inducted by the mortgagees were also directed to deliver up possession to the mortgagors. The plaintiffs had filed a suit alleging that the deceased Karsandas Haridas Purohit was their father and he died in the year 1956, he had mortgaged the suit property to Kansara Soni Shivji Jetha and Lalji Jetha for 30,000 Koris by a registered mortgage deed dated 20th April, 1943. The mortgage deed was executed in favour of Soni Govindji Narayanji who was the power of attorney holder and manager of the defendants Nos. 1 and 2. The defendant No. 3 is the heir of said Govindji Narayanji and he was also managing the properties of the defendants Nos. 1 and 2. The mortgage property consisted of two delis in which there were residential houses, shops etc. The mortgagees had inducted tenants in the suit property and they were defendants Nos. 4 to 9 in the original suit. When the mortgage transaction took place, the economic condition of the father of the plaintiffs was weak, he was heavily indebted to other persons. It was alleged and it was so held by the learned Judge and upheld by the Appellate Judge that the mortgagees took advantage of that situation and took mortgage deed from him on harsh and oppressive conditions. They got incorporated long term of 99 years for redemption of mortgage. It is further stated that though possession was to be handed over to the mortgagees, they took condition for interest on the part of principal amount in the mortgage deed. Moreover, the mortgagees were given liberty to spend any amount they liked for the improvement of the suit property. They were also permitted to rebuild the entire property. Thus the terms and conditions, according to the Appellate Judge, were incorporated in the mortgage deed to ensure that the mortgagors are prevented for ever from redeeming the mortgage. The terms and conditions, according to the Assistant Judge, Bhuj, being the first Appellate Court were unreasonable, oppressive and harsh and amounted to clog on equity of redemption and, as such, bad and the plaintiffs were entitled to redeem the mortgage even before the expiry of the term of mortgage. A registered notice to the defendants Nos. 1 and 2 was given to redeem the mortgage but they failed to do so, hence, the present suit was filed to redeem the mortgage and to recover actual possession from the defendants Nos. 4 to 9 who were the tenants inducted by the mortgagees.4. The defendant No. 1 resisted the suit. It was his case that the term of mortgage was for 99 years, so the suit filed before the expiry of that period was premature. The defendant No. 3 resisted the suit by written statement. The defendants Nos. 4 to 9 resisted the suit on the grounds that the plaintiffs were not entitled to redeem the mortgage and even if they were so entitled, they could not get actual physical possession from the tenants who were protected by the provisions of the relevant Bombay Rent Act. It was their case that the plaintiffs were not entitled to get actual possession of the premises in which they were inducted by the mortgagees. The defendants Nos. 2/1 to 2/7 who were the heirs of mortgage Shivji Jetha were residing in London and New Delhi, so the personal service of summons could not be effected upon them. The summons was published in the local newspapers but none of them appeared before the Court so the Court proceeded ex-parte against them. The trial was conducted and a preliminary decree for redemption of mortgage was passed on 2nd April, 1974 by the Trial Court. Thereafter, the decree-holder applied for final decree so the notices were issued to all the defendants. The heirs of Shivji Jetha appeared in response to that notice and filed applications before the Trial Court to set aside the ex-parte decree on the ground that summons of the suit were not duly served upon them. That prayer was rejected by the Trial Court. Thereafter, they filed Civil Misc. Appeals in the District Court. The appeals were allowed by the District Court and the ex-parte decree for redemption of mortgage was set aside. The Trial Court was directed to proceed with the suit after permitting the concerned defendants to take part in the proceedings right after receiving their written statements. Accordingly defendant No. 2/1 appeared in the suit and filed his written statement while the other defendants remained absent.5. It was the case of the defendant No. 2/1 that the sisters of the plaintiffs had not been joined as parties in the suit, so the suit was bad for want of necessary parties. Moreover, as per the terms and conditions of the mortgage deed dated 20th April, 1943, there was usufructuary mortgage for 20,000 koris and the remaining 10,000 koris were advanced to the mortgagor at monthly interest at the rate of 1/2 per cent. There was a condition in the mortgage deed that the mortgagor should pay principal amount as well as the interest at the time of redemption. When the suit was filed in the year 1972, the mortgagees were entitled to recover interest on 10,000 koris for a period of 29 years. That interest will be 17400 koris so the total mortgage amount will be Rs. 47400/- which will be equivalent to Rs. 15800/- and the Civil Judge had no jurisdiction to try such suit so the plaint should have been returned for presentation in the proper court. It was further alleged that the court fees paid by the plaintiffs was also not sufficient. Moreover, it was not true that the father of the plaintiffs was of weak economic condition. The grand father of the plaintiffs was an Advocate and the father of the plaintiffs was the clerk of an Advocate. The plaintiff No. 1 was also working as an Advocate at the time of the mortgage, so they knew the legal position. It was further alleged that at the relevant time the prevalent custom in Kutch State was to take mortgages of long term for 99 years and when it was permissible to take mortgage deeds with such a long term, it was also necessary to give permission for rebuilding the whole property, for better enjoyment of it. So the conditions in mortgage deed for long term mortgage and for reconstruction of the property could not amount to clog on equity of redemption of mortgage, it was the case of the mortgagees and/ or tenants. The mortgagees did not take any, it was pleaded, under advantage and they were not present physically when the transaction took place through their power of attorney holders. If the conditions in the mortgage deed did not amount to clog on equity of redemption, the suit would be clearly premature. It may be mentioned that the plaintiff No. 1 had subsequently become Civil Judge and was ultimately the Chairman of the Tribunal so if the said terms and conditions of the mortgage were onerous and oppressive, he would not have sat idle for 29 years. But he remained silent because he was aware of the custom, it was pleaded. It was alleged that the prices of immovable properties had increased tremendously, therefore, the suit had been filed with mala fide intention. It was averred that in case the Court came to the conclusion that there was clog on equity of redemption and the plaintiffs were entitled to the redemption, then also the interest on 10,000 koris should be awarded to the mortgagees. In the premises, it was averred that the suit should be dismissed as there was no clog on equity of redemption and the court had no jurisdiction to try the suit. The Trial Court then recorded additional evidence in the suit and ultimately decreed the suit on 28th September, 1978. The Trial Court came to the conclusion that there was mortgage transaction between the father of the plaintiffs and Soni Shivji Jetha and Lalji Mulji on 20th April, 1943. The Trial Court further came to the conclusion that the terms and conditions in the mortgage deed were harsh and oppressive which amounted to clog on equity of redemption, so the plaintiffs were entitled to file the suit even before the expiry of the term of the mortgage. The Trial Court also came to the conclusion that the sisters of the plaintiffs were not necessary parties to the suit and even if they were necessary parties, a co-mortgagor was entitled to file the suit for redemption, so the suit was not bad for want of non-joinder of necessary parties. The Trial Court further came to the conclusion that it had jurisdiction to try the suit and held that the mortgagees were not entitled to claim interest on 10,000 koris. It was further directed that the plaintiffs were entitled to recover possession from the defendants Nos. 4 to 9 who were the tenants inducted by the mortgagees. Accordingly, a preliminary decree was passed in the suit.6. Aggrieved thereby the mortgagees filed Regular Civil Appeal No. 149/78 and the tenants filed Regular Civil Appeal No. 150/78. These were disposed of by the judgment of the first Appellate Court. The learned Judge of the first Appellate Court framed the following issues:1) Whether the terms and conditions in the mortgage deed dated 20.4.1943 amount to clog on equity of redemption?2) Whether the decree passed is bad for want of jurisdiction with trial court?3) Whether the mortgagees are entitled to the interest on 10.000/- koris?4) Whether the tenants are protected from the effect of redemption decree by virtue of the provisions of Bombay Rent Act?5) Whether the decree passed by the trial court is legal and proper?6) What order?7. It is not necessary any longer in view of the findings made and the subsequent course of events to detain ourselves on all the issues. For the purpose of the present appeal as well as the connected appeals we are concerned with two issues, namely, Issue Nos. 1 and 4 stated above, in other words, whether the terms and conditions of - the mortgage deed dated 20th April, 1943 amounted to clog on equity of redemption and secondly, whether the tenants are protected from the effect of redemption decree by virtue of the provisions of the Bombay Rent Act. The learned Assistant Judge in the first appeal had noted that it was not in dispute that the document, Ext. 103 dated 20th April, 1943, the certified copy of which was also produced at Ext.51 was executed by the father of the plaintiffs in favour of Kansara Soni Shivji Jetha. According to this document, an usufructuary mortgage was created on the suit property for 20,000 koris and the possession was to be delivered to the mortgagees. Over and above that a further amount of 10,000 koris was also paid to the mortgagor for which he had to pay interest at the rate of 1/2 per cent per month. The mortgage period was fixed for 99 years and after the expiry of that period, the mortgagor had to pay 30,000 koris as principal amount along with interest due on 10,000 koris. This was a registered document and it was acted upon by the parties.8. The learned Trial Judge held that the long term of 99 years for redemption coupled with other circumstances, indicated that there was clog on equity of redemption. It was argued that the long term for redemption was not necessarily a clog on equity of redemption. Certain decisions were referred to. The Trial Court noted that there was no quarrel with the proposition of law that long term itself could not amount to clog on equity of redemption, when the bargain otherwise was reasonable one and the mortgage had not taken any undue or unfair advantage. But, if in a mortgage with long term of redemption, there were other circumstances to suggest that the bargain was unreasonable one and the mortgage had taken unfair advantage, then certainly long term also will be clog on equity of redemption. It is a question to be judged in the light of the surrounding circumstances. It may be noted here that there was a condition in the mortgage deed permitting construction of structure after demolishing the existing structure, costs of which were to be paid by the mortgagor. After examining the facts and the relevant decisions, the first Appellate Court came to the conclusion that the terms were oppressive and harsh and there was clog on equity of redemption and the mortgagor should be freed from that bondage.9. Shri Rajinder Sachar, Shri B.K. Mehta as well as Shri Dholakia urged on behalf of their respective clients that in former Kutch district, there was a custom to take mortgages for long term of 99 years and when the period was long, naturally the mortgage would be required to give full authority to repair and reconstruct the mortgaged property with a view to keep pace with new demands of changing pattern, so the condition permitting the mortgage to reconstruct the whole premises was natural consequence of long term and it should not be treated as clog on equity of redemption. The learned Assistant Judge had rejected the similar contention made before him on behalf of the mortgagees and tenants in view of the decisions of the Gujarat High Court which were also arising out of the decisions in the suits filed in Kutch district and in those cases it was held that there was clog on equity of redemption. We will deal with the Gujarat cases separately, presently. The learned Assistant Judge referred to another circumstance i.e., to the condition of mortgage which indicated the oppressive nature of the term. By mortgage deed being Ext. 103 usufructuary mortgage was created for 20,000 koris only and additional mortgage of 10,000 koris was also created for which the mortgagor had to pay interest at the rate of 1/2 per cent per month. Furthermore, the mortgagor was not allowed to discharge interest liability periodically, but he had to pay the whole amount of interest at the end of 99 years at the time of redefinition of the mortgage. Naturally, there would be huge accumulation of interest which for all practical probabilities in most of the cases will be an impossibility to discharge. It was held that the purpose was to ensure that the right of redemption could never be exercised. On the other hand, it was contended before the learned Assistant Judge that the transaction was bona fide because reasonable consideration was paid as mortgage money. There was no direct contact between the mortgagor and the mortgagee. There could not be any collusion. The mortgagees were abroad. The learned Assistant Judge examined the evidence of one Madhavji Shivji Soni in order to show comparable instances for reasonableness of the consideration. The learned Assistant Judge after discussing the evidence proceeded on the assumption that the consideration paid as mortgage money was reasonable and proper and, according to him, it did not make any difference if the other conditions in the mortgage deed were found to be oppressive and amounting to clog on equity of redemption.10. Attention of the learned Assistant Judge was drawn to the fact that this was a bona fide transaction at the time when made, but subsequently, the prices of immovable properties increased so the plaintiffs had come forward to file suits after a lapse of long time. It was highlighted that the plaintiff No. 1 was serving as a Civil Judge and if he came to know that the transaction was oppressive, he would not have sat idle for such a long period. Reference was made to the decision of this Court Seth Ganga Dhar v. Shankar Lal and Ors. [1959]1SCR509 , We will examine that decision in detail. The learned Assistant Judge came to the conclusion on point No. 1 that there was clog on equity of redemption and accordingly answered the Issue No. 1 in the affirmative. With the other issues we are not concerned in this appeal except Issue No. 4. Regarding Issue No. 4, as mentioned hereinbefore, which is on the question whether the tenants are protected from the effect of redemption decree by virtue of the provisions of the Bombay Rent Act, it may be mentioned that the tenants had filed regular civil appeal and it was urged before the learned Assistant Judge that even if the mortgage was redeemed, the tenants inducted by the mortgagees would be entitled to continue in possession of the properties in question as they were protected by the provisions of the said Rent Act. There was no dispute in this case and in the facts of the other three appeals that the tenants were inducted by the mortgagees after the mortgage was created. It is also true that in all these mortgage deeds, there was provision that the mortgagees were competent to lease out the suit property and if in exercise of that power, they inducted the tenants in the suit properties their tenancies would not come to an end on the redemption of mortgage, it was argued. The Full Bench of the Gujarat High Court in Lalji Purshottam v. Thacker Madhavji Meghaji 17 GLR 497 held that the mortgage in possession might lease the property, but authorisation to the mortgage to let out the property to any other tenant would not amount to an intention to create tenancy beyond the term of mortgage. Following the said decision, however, it was held that the tenant had no right to be in possession and was not entitled to the protection of the Bombay Rent Act after the redemption of the mortgage. The appeal was accordingly disposed of.11. As mentioned hereinbefore, there was a second appeal to the High Court and the High Court expressed the view in brief order and dismissed the second appeal on 26th April, 1982. It appears, however, that in second appeal two questions were agitated, (1) the question of jurisdiction and Damdupat and (2) the tenants right to be in possession. So far as the question of jurisdiction and Damdupat, the High Court observed that the Assistant Judge was right. This point is not before us in this appeal under Article 136 of the Constitution. So far as the question of tenants right to be in possession after the redemption of mortgage, the High Court followed the decision in Khatubai Nathu Sumra v. Rajgo Muiji Nanji and Ors (supra). Before we deal with the question of law and the respective submissions, we may briefly so far as relevant for the present purpose refer to the facts of the other three appeals.12. Civil Appeal No. 9993 of 1983 is an appeal by the tenant arising out of the Regular Civil Appeal No. 150 of 1978 before the learned Assistant Judge, Kutch, at Bhuj, referred to hereinbefore. The facts have been set out hereinbefore and it is not necessary to reiterate these. We will deal with the contentions in respect of the same at the appropriate stage.13. Civil Appeal No. 397 of 1980 is also an appeal by the tenant. It arises from the judgment and order of the High Court of Gujarat, dated 7th November, 1978 in Civil Revision Application No. 1447 of 1978. One Naranji Nanshi Thacker (hereinafter referred to as the decree- holder) instituted a Regular Civil Suit No. 10 of 1968 in the Court of the learned Civil Judge (J.D.), Bhuj. The suit was originally dismissed on 29th November, 1967. It was a suit for redemption of the mortgaged property located in the town of Bhuj. Thereupon, the respondent No. 1 preferred an appeal to the District Judge where the suit was decreed. The defendants filed a second appeal which was dismissed and the decree-holder made an application for final decree and the Court gave the final decree on 30th November, 1974. While giving the final decree for redemption of the mortgage a direction was given in the decree to the judgment debtors to hand over the possession of the mortgaged property within three months on the decree-holder making payment of dues in respect of the mortgage in the Court. In pursuance of the final decree the decree-holder took out the execution proceedings and deposited the dues in the Court. At the same time the decree-holder claimed possession of the mortgaged property from one Shambhulal Vallabhji Thacker, the appellant herein, stating that he was a tenant in the possession of the property. The notice was issued to Shambhulal Vallabhji, who appeared before the Court and submitted his objections stating that he was a tenant protected by law and he could not be evicted in the execution of the decree obtained by the decree-holder. He also stated that he was entitled to get the protection under the Bombay Rent Control Act. The learned District Judge held that there was no conduct on the part of the decree-holder which would stop him from claiming physical possession from the tenant of the mortgage in possession. It was contended that when the mortgage leased out the mortgaged property under the ordinary prudent management of the mortgaged property the mortgagor on redemption of the mortgage was not entitled to recover physical possession of the property from the tenant. The learned Judge negatived this contention. The High Court rejected the appeal summarily. Hence, this appeal.14. Civil Appeal No. 1286 of 1981 is also an appeal by the tenant. The appellant is the tenant of the mortgagee. The plaintiffs Nos. 1 to 6 are the heirs and legal representatives of deceased Mehta Kanji Bhagvanji. It may be mentioned that the tenant was inducted by the mortgage in 1955. The property was mortgaged in 1948 for a period of five years. It appears, therefore, that the tenant was inducted after the period of redemption had expired. The mortgagor had a right to redeem after the expiration of the mortgage. It was contended that though the mortgage had inducted tenants in the suit property with a mala fide intention on the part of the mortgagee, it was still an act of prudent management. The first Appellate Court on the question before us, namely, whether the tenant was protected by the Bombay Rent Act, came to the conclusion after discussing all the relevant evidence and relying on the decision of the Lalji Purshottam v. Thacker Madhavji Meghaji (supra) that the tenants were not so protected under the provisions of the Bombay Rent Act in the facts of the case. The appellant preferred this appeal and this is in issue in this case.

Reasoning:
25. Whether in the facts and the circumstances of these cases, the mortgage transaction amounted to clog on the equity of redemption, is a mixed question of law and fact. Courts do not look with favour any clause or stipulation which clogs equity of redemption. A clog on the equity of redemption is unjust and unequitable. The principles of English law, as we have noticed from the decisions referred to hereinbefore which have been accepted by this Court in this country, looks with disfavour at clogs on the equity of redemption. Section 60 of the Transfer of Property Act, in India, also recognises the same position.26. It is a right of the mortgagor on redemption, by reason of the very nature of the mortgage, to get back the subject of the mortgage and to hold and enjoy as he was entitled to hold and enjoy it before the mortgage. If he is prevented from doing so or is prevented from redeeming the mortgage, such prevention is bad in law. If he is so prevented, the equity of redemption is affected by that whether aptly or not, and it has always been termed as a clog. Such a clog is inequitable. The law does not countenance it.Bearing the aforesaid background in mind, each case has to be judged and decided in its own perspective. As has been observed by this Court that long-term for redemption by itself, is not a clog on equity of redemption. Whether or not in a particular transaction there is a clog on the equity of redemption, depends primarily upon the period of redemption, the circumstances under which the mortgage was created, the economic and financial position of the mortgagor, and his relationship vis-a-vis him and the mortgagee, the economic and social conditions in a particular country at a particular point of time, custom, if any, prevalent in the community or the society in which the transaction takes place, and the totality of the circumstances under which a mortgage is created, namely, circumstances of the parties, the time, the situation, the clauses for redemption either for payment of interest or any other sum, the obligations of the mortgage to construct or repair or maintain the mortgaged property in cases of usufructuary mortgage to manage as a matter of prudent management, these factors must be co-related to each other and viewed in a comprehensive conspectus in the background of the facts and the circumstances of each case, to determine whether these are clogs on equity of redemption.30. Whether in a particular case there is any clog on the equity of redemption, has to be decided in view of its background of the particular case. The doctrine of clog on equity of redemption has to be moulded in the modern conditions. See Mulla: Transfer of Property Act, 17th Edn. 402. Law does not favour any clog on equity of redemption.31. It is a settled law in England and in India that a mortgage cannot be made altogether irredeemable or redemption made illusory. The law must respond and be responsive to the felt and discernible compulsions of circumstances that would be equitable, fair and just, and unless there is anything to the contrary in the Statute, law must take cognisance of that fact and act accordingly. In the context of fast changing circumstances and economic stability, long-term for redemption makes a mortgage an illusory mortgage, though not decisive. It should prima facie be an indication as to how clogs on equity of redemption should be judged.32. In the facts and the circumstances and in view of the long period for redemption, the provision for interest @ I /2% per annum payable on the principal amount at the end of the long period, the clause regarding the repairs etc., and the mortgagors financial condition, all these suggest that there was clog on equity. The submissions made by Mr. Sachar and Mr. Mehta are, therefore, unacceptable. ,33. In that view of the matter, we are of the opinion that the decision of the High Court as well as the Courts below that there existed clog on the equity of redemption in case of these mortgages, is correct and proper, and we hold so accordingly.34. Before we dispose of the contentions on the second aspect, we must deal with some of the decisions of the Gujarat High Court to which reference had been made and some of which also referred before us. We have noticed the decision of the Gujarat High Court in Klhatubai Nathu Sumravs. Rajgo Mulji Nanji and Ors (supra). In Maganlal Chhotalal Chhatrapati and Ors. v. Bhalchandra Chhaganlal Shah 15 GLR 193 , P.D. Desai, J. as the learned Chief Justice then was, held that the doctrine of clog on the equity of redemption means that no contract between a mortgagor and mortgage made at the time of the mortgage and as apart of the mortgage transaction or, in other words, as a part of the loan, would be valid if it in substance and effect prevents the mortgagor from getting back his property on payment of what is due on his security. Any such bargain which has that effect is invalid. The learned Judge reiterated that whether in a particular case long term amounted to a clog on the equity of redemption had to be decided on the evidence on record which brings out the attending circumstances or might arise by necessary implication on a combined reading of all the terms of the mortgage. The learned Judge found that this long term of lease along with the cost of repairing or reconstruction to be paid at the time of redemption by the mortgagor indicated that there was clog on equity of redemption. The learned Judge referred to certain observations of Mr. Justice Macklin of the Bombay High Court where Justice Macklin had observed that anything which does have the appearance of clogging redemption must be examined critically, and that if the conditions in the mortgage taken as a whole and added together do create unnecessary difficulties in the way of redemption it seems that is a greater or less clog upon the equity of redemption within the ordinary meaning of the term. In our opinion, such observations will apply with greater force in the present inflationary market. The other decision to Which reference may be made is the decision of the Gujarat High Court in Soni Motiben v. Hiralal Lakhamshi 22 GLR 473. This also reiterates the same principle. In Vadilal Chhaganlal Soni and Ors v. Gokaldas Mansukh and Ors. AIR1953Bom408 also, the same principle was reiterated. In that case, it was held by Gajendragadkar J., as the learned Chief Justice then was, that the agreement between the mortgagor and mortgage was that the mortgagor was to redeem the mortgage 99 years after its execution and the mortgage was given full authority to build any structure on the plot mortgaged after spending any amount he liked. It was held that the two terms of the mortgage were so unreasonable and oppressive that these amounted to clog on the equity of redemption. Similar is the position in the case of Sarjug Mahto and Ors v. Smt. Devrup Devi and Ors AIR1963Pat114 , where also the mortgage was for 99 years. In Chhedi Lal v. Babu Nandans case (supra), the court reiterated that freedom of contract unless it is vitiated by undue influence or pressure of poverty should be given a free play. In the inflationary world, long term for redemption would prima facie raise a presumption of clog on the equity of redemption. See also the observations in Rashbehary Ghoses Law of Mortgage 6th Edn. pages 227 and 228.35. Bearing the aforesaid principles in mind, we must analyse the facts involved in these appeals. It has been noticed in S.L.P. (Civil) No. 8219 of 1982 that the High Court of Gujarat by its order impugned had dismissed the second appeal. The High Court had merely observed in dismissing the second appeal that the First Appellate Court had followed the decision of the Gujarat High Court in Khatubai Nathu Sumra v. Rajgo Mulji Nanji and Ors (supra). We have noted the salient features of the said decision. The High Court, therefore, found no ground to interfere with the decision of the First Appellate Court and accordingly dismissed the second appeal. The First Appellate Court by its judgment disposed of Civil Regular Appeal No. 149 of 1978 and another civil appeal which was the appeal by the tenant was also disposed of by the said judgment. The learned Judge of the Appellate Court had referred the ratio of the decision in Gangadhar v. Shankerlal (supra). The learned Judge bearing in mind the principle of the aforesaid decision and the relevant clause of Ext. 103 came to the conclusion that the clauses amounted to clog on the equity of redemption in the facts of this case. Shri Sachhar tried to urge before us that on the evidence and the facts in this case having regard to the position of the parties, the transaction did not amount to clog on the equity of redemption. It was emphasised by the First Appellate Court that the fact that the son of the mortgagor subsequently became Civil Judge would not affect the position because what was relevant was the financial condition at the time of the transaction. We have further to bear in mind that it has come out in the evidence that the father of the plaintiff was residing in the suit property at the relevant time and there was no other residential house except the suit property. The First Appellate Court, therefore, emphasised in our opinion rightly that if there was no pressure from the creditor, no body would like to mortgage the only house which is sole abode on the earth.36. In that view of the matter and in view of the position in law, we are of the opinion that the First Appellate Court was right in the view it took.37. The First Appellate Court referred to the decision of Kunjbiharilal v. Pandit Prag Narayan AIR 1922 Oudh 283. In that case there was a condition that the mortgagor should pay interest along with the principal amount at the time of redemption after 50 years. It was held that the intention was to see that right of redemption could never be exercised. If the condition was such which would result in making redemption rather difficult, if not impossible, it would be a clog on the equity of redemption and could not be enforced. Similar was the position of the Allahabad High Court in Rajai Singh v. Randhir Singh AIR1925All643 . There the term fixed for redemption was of 96 years and there was a stipulation for payment of interest alongwith principal not periodically but only at the time of redemption. In the instant case before us the mortgagor was required to pay the whole amount of interest at the end of 99 years which will practically make the redemption impossible. Applying the well-settled principles which will be applicable to the facts of this case in determining whether there was in fact a clog on the equity of redemption, we are of the opinion that the First Appellate Court was right in holding that there was a clog on equity of redemption.38. On the second aspect of the question whether the right of the tenants of the mortgagees are protected after the redemption of mortgage, reliance was placed by the First Appellate Court on the decision of the Full Bench of the Gujarat High Court in Lalji Purshottam v. Thacker Madhavji Meghaji (supra). There urban immovable property was mortgaged with possession, mortgage creating lease during the subsistence of the mortgage. The question was whether after redemption of mortgage such lease is binding on the mortgagor. It was held that Section 76(a) of the Transfer of Property Act would not apply to such cases. There must be express words showing an intention if tenancy was to be created beyond the term of the mortgage. Mere reference that mortgage is entitled to lease property does not create a binding tenancy on the mortgagor. After the redemption of the mortgage the relationship of landlord and tenant does not exist. Such tenant, therefore, does not get any protection under Section 12 of the Bombay Rent Control Act, it was held. The Gujarat High Court had referred to several decisions of this Court. In Mahabir Gope v. Harbans Narain Singh [1952]1SCR775 which was a decision dealing with a lease created by a mortgage with possession under the Bihar Tenancy Act, this Court reiterated that the general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has. A mortgage cannot, therefore, create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee. Further the mortgagee, who takes possession of the mortgaged property, must manage it as person of ordinary prudence would manage if it were his own; and he must not commit any act which is destructive or permanently injurious to the property. Reliance maybe placed for this purpose on Section 76, Clauses (a) and (e) of the Transfer of Property Act, 1832. It was held that the provisions of Sections 20 and 21 of the Bihar Tenancy Act, did not apply to the lessees since they were not settled raiyats and the lessees could not claim to have secured under the statute occupancy rights in the land. It was further held that the mortgagor was entitled to the possession of the land upon redemption of the mortgage. In a slightly different context in Harihar Prasad Singh v. Must, of Munshi Nath Prasad [1956]1SCR1 this Court was concerned with a mortgage with possession effected on agricultural land. This Court had to consider in that decision whether under the provisions of the Bihar Tenancy Act the tenant inducted on the mortgaged property during the pendency of the mortgage could claim right to remain in possession after the redemption. Venkatarama Ayyer, J., speaking for the Court pointed out that if the tenant could not resist the suit for ejectment either by reason of Section 76(a) of the Transfer of Property Act or Section 21 of the Bihar Tenancy Act, the tenant could not get such a right as a result of the interaction of both those sections. This Court ultimately held that the tenants inducted by the mortgage with possession had failed to establish that they had any right of occupancy over the suit lands and that the plaintiffs were entitled to a decree in ejectment, with future mesne profits as claimed in the plaint. Thus a right claimable under Section 76(a) of the Transfer of Property Act because of a lease created in the course of prudent management of the property was put on a different footing altogether from a right created by a special statute.39. Similarly, in Asa Ram v. Mst. Ram Kali (1958 SCR 986), the question before this Court was again of mortgage of agricultural land when the mortgage was with possession and of the tenant inducted by the mortgage with possession. In Dahya Lal v. Rasul Mohammed Abdul Rahim [1963]3SCR1 , this Court was concerned with the case of a tenant inducted on agricultural land by a mortgage in possession. There under the Bombay Tenancy and Agricultural Lands Act, 1948, a tenant lawfully inducted by the mortgage on the, land would on redemption of the mortgage be deemed to be a tenant of the owner mortgagor under Section 4 of the Bombay Tenancy and Agricultural Act. This Court held that all persons other than those mentioned in Clauses (a), (b) and (c) of Section 4 of the Bombay Tenancy and Agricultural Lands Act, 1948, who lawfully cultivated land belonging to other persons whether or not their authority was derived directly from the owner of the land must be deemed tenants of the lands under Section 4 of the said Act. So, therefore, the Bombay Tenancy Act required at the relevant time the lawful cultivation by tenant. This Court had also considered this question in Prabhu v. Ramdev [1966]3SCR676 . There the same problem again arose in connection with a person inducted into agricultural land as a tenant by an usufructuary mortgage and the question was whether the rights of such a tenant were protected by the provisions of the Rajasthan Tenancy Act, 1955. In view of the special status, the tenant in question was held to be entitled to the protection. It must be noted as observed by the Full Bench of the Gujarat High Court thatall the cases that we have so far considered are cases of agricultural lands and in each of these cases the question was examined from two points; first, whether the lease could be said to be a lease granted in the course of prudent management and, in the alternative, whether the rights of the tenant inducted by the mortgage with possession had been enlarged as a result of a special statute dealing with the rights of tenants of agricultural lands.. This question, however, has been agitated before this Court in the background of the non-agricultural lands especially in urban areas. In All India Film Corporation v. Raja Cyan Nath [1970]2SCR581 , the question was in respect of lease of a cinema house granted by the mortgage with possession. Hidyatullah, C.J. delivering the judgment of the Court, observed in paragraph 7 that a general proposition of law is that no person can confer on another a better title than he himself has. A mortgage is a transfer of an interest in specific immovable property for the purpose of securing repayment of a loan. A mortgages interest lasts only as long as the mortgage has not been paid off. It was further observed by the learned Chief Justice that on redemption of the mortgage the title of the mortgage comes to an end. It was held that Section 111(c) of the Transfer of Property Act provides that a lease of immovable property determines where the interest of the lessor in the property terminates on, or his power to dispose of the same, extends only to the happening of any event - by the happening of such event. The duration of the mortgages interest determines his position as the lessor. But there is one exception. That flows from Section 76(a) which lays down liabilities of a mortgage in possession. It is provided there that when during the continuance of the mortgage, the mortgage takes possession of the mortgaged property, he must manage the property as a person of ordinary prudence would manage it if it were his own. It was observed that this principle applied ordinarily to the management of agricultural lands and has seldom been extended to urban property so as to tie it up in the hands of lessees or to confer on them rights under special statutes. It was emphasised by the Chief Justice that lease would continue to bind the mortgagor or persons deriving interest from him if the mortgagor had concurred to grant it. Ultimately, this Court in that case held that on the termination of the mortgage in the events that had happened in that particular case, that since there was no landlord and no tenant, the provisions of the Rent Restriction Act could not apply beyond the date of the termination of the mortgagees interest. Similar, is the view in the case of Sachalmal Parasram v. Ratnabai AIR1972SC637 . There, the question was whether the tenant was protected under the Madhya Pradesh Accommodation Control Act, 1961. The Court did not accept the rights of the tenant in possession.41. The question whether the tenant from usufructuary mortgage of building was entitled to protection on redemption of mortgage, was considered by the Full Bench of the Madras High Court in S.V. Venkatarama Reddiar v. Abdul Ghani Rowther and Ors. AIR1980Mad276 . There Justice Natarajan, as the learned Judge then was of the Madras High Court delivering the judgment of the Full Bench of the said Court held that if a tenancy was created by a mortgage with possession, the ties of landlord and tenant were snapped eon instant the mortgage is redeemed and, unless there is a fresh forging of the relationship of landlord and tenant between the mortgagor and the erstwhile tenant by (i) the voluntary act of the parties or (ii) a deemed forging of the relationship by express provision in the Act itself, the 1st while tenant cannot claim protection under the Act so as to perpetuate his occupation of the building as a tenant. The rule of exception contained in Section 76(a) of the T.P. Act cannot be readily and automatically invoked by a tenant let into possession of urban property by a mortgage with possession. The principle of exception afforded by Section 76(a) of that Act applies ordinarily to the management of agricultural lands and has seldom been extended to urban property so as to tie it up in the hands of lessees or to confer on them rights under special statutes. It may be open to a tenant inducted upon urban property by a mortgage with possession to rely upon Section 76(a) to claim tenancy right for the full term of the tenancy notwithstanding the redemption of the mortgage earlier. But, it is for the person who claims such benefits to strictly establish the binding nature of the tenancy, created by the mortgage, on the mortgagor. Reference may be made to a Full Bench decision of the Rajasthan High Court in Devkinandan and Anr. etc. v. Roshan Lal and Ors5 where several relevant authorities have been discussed. The question before the Full Bench was whether a tenant of a mortgage in possession is entitled to the protection of the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 against the mortgagor after the redemption of the mortgage. P.K. Banerjee, C.J. delivering the judgment of the Court after discussing all relevant authorities held that in respect of tenancy of urban property or premises, the mortgage in possession has no right to jeopardise the right of the mortgagor by giving a tenancy which would continue even after the redemption of the mortgage. This negates the submission that as a matter of prudent management the tenants had been inducted and after induction the tenants got their rights enlarged. In Lalji Purshottam v. Thacker Madhavji Meghaji (supra), where the Full Bench of the Gujarat High Court had considered the effect of continuation of tenancy under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 which are precisely the cases in the facts of the instant appeals, after discussing all the relevant provisions of the Act including the theory of the prudent management the Full Bench of the Gujarat High Court observed that where a lease is created by the mortgage in possession of an urban immovable property, such a lease would not be binding on the mortgagor after redemption of mortgage assuming that the lease is such as a prudent owner of property would have granted in usual course of management. The Court observed that that was so because Section 76(a) could not apply to a case of urban immovable property and hence a lease created by the mortgage in possession of an urban immovable property would not be binding on the mortgagor after redemption of the mortgage. Even apart from Section 76(a) of the Transfer of Property Act if the words of the mortgage deed clearly and indubitably express an intention to allow expressly creation of a tenancy beyond the term of the mortgage, then only the lease created in exercise of the power expressly conferred by the mortgage deed would be binding on the mortgagor, if the words of the mortgage deed do not clearly and indubitably disclose the intention to allow expressly the creation of a tenancy beyond the terms of the mortgage, the mere fact that the mortgage deed authorises the mortgage with possession to induct a tenant would not create a tenancy binding on the mortgagor after the redemption of the mortgage. In such a case a tenant inducted on the property by a mortgage with possession when the tenancy of that tenant is not binding on the mortgagor after the redemption of the mortgage, is not protected under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. We are of the opinion that the aforesaid view expressed by the Chief Justice given on behalf of the Full Bench represents the correct position in law in respect of the second aspect of the question canvassed before us.42. We have noticed the view of the Full Bench of the Rajasthan High Court on this aspect. This question was again envisaged by this Court in the background of the Rajasthan Premises Act in Om Prakash Garg v. Ganga Sahai and Ors. : AIR1988SC108 holding that on passing of the final decree of redemption of the mortgage, the lease did not subsist and the tenant is not entitled to protection under the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. Again viewing this question in the context of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 in Jadavji Purshottam v. Dhami Navnitbhai Amaratlal and Ors. [1988]1SCR76 , in which the judgment was delivered by Natarajan J., and one of us was a party to that decision, it was held that it was recognised by this Court in a number of cases that the question of imprudent management of the mortgaged property by the mortgage would not arise where the rights of the tenant were enlarged by the tenancy legislation enacted after the tenant was put in possession by the mortgage. Hence, in that case the question was whether the tenancy rights of the appellant-tenant, who was inducted by the mortgage, came to be enlarged by tenancy legislation after he was put in possession by the mortgage. The fact found in that case was that the tenant- appellant was not inducted into possession soon after the execution of mortgage deed and the mortgage was put in possession of the property but long thereafter. In fact, there was already a tenant on the mortgage property when the mortgage was put in possession. During the period of tenancy of that tenant the Saurashtra Act 22 of 1951 came to be enacted and gave protection to the tenants from paying exorbitant rent and from unreasonable eviction. Despite the enlargement of his tenancy rights by the Act, that tenant vacated the lease premises in 1956 and thereafter the mortgage inducted the appellant in possession. It: was held that that was a case where the Saurashtra. Act was already in force when the appellant was inducted into possession. The tenancy rights of the appellant cannot be said to have become enlarged after the mortgage granted him the lease by subsequent legislation enacted for affording protection to tenants. The fact that the mortgage had granted lease only for a period of one year will not alter the case in any manner as not only had the mortgage executed the lease deed after the expiry of the lease period but also because the restriction of the lease period to one year was of no consequence in view of the provisions contained in the Saurashtra Act 22 of 1951. The enlargement of the tenancy rights cannot also be claimed on the basis of the fact that the Bombay Rent Act had been enacted after the appellant was inducted into the property because the Saurashtra Act was already in force when the mortgage granted lease to the appellant and it was only from January 64 the Bombay Rent Act came to replace the Saurashtra Act. In Civil Appeal No. 9993 of 1982, Pomal Kanji Govindji and Ors. v. Vrajlal Karsandas Purohit and Ors., Shri B.K. Mehta took us to the factual background. The appellants who are tenants in the mortgage properties being defendants Nos. 4 to 9 in the original suit had resisted the suit for redemption and contended that the plaintiffs were not entitled to recover possession from them since their rights are protected under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and the said Act has applied to the area of Kutch in the Bombay State. Therefore, no decree for eviction could be passed against them except in accordance with the provisions of the said Act. The High Court held that redemption of mortgage was possible and the suit was maintainable as mentioned hereinbefore. However, as regards the question of protection of the tenants under the Bombay Rent Act, Shri Mehta proceeded to submit that the learned Judge did not make any finding as to when the tenants were inducted nor did he express his opinion about the evidence of respondent No. 5. Shri Mehta further submitted that the learned Judge did not make any finding as to when these tenants were inducted, either before or after the rent restriction Act was made applicable to the area of Kutch. On that basis, following the Full Bench decision of the Gujarat High Court in Laiji Purshottam v. Thacker Madhavji Meghaji (supra), the courts below rejected the claim of the tenants. Shri Mehta submitted that the High Court has erred in not following the settled legal position entrenched by a line of decisions of this Court that the rights of a tenant inducted by a mortgage with possession would ensure beyond the period of redemption of the mortgage if his rights are enlarged by subsequent tenancy legislations in force in the area in which the property is situated. He drew our attention to the decision in the case of Mahabir Gope v. Harbans Narain (supra). There as mentioned hereinbefore this Court had found that the provisions of sections 20 and 21 of the Bihar Tenancy Act, did not apply to the lessees since they were not settled raiyats. Shri Mehta also drew our attention to the observations of this Court in Asa Ram v. Mst. Ram Kali (supra). He also drew our attention to Dahya Lal v. Rasul Mahommed (supra) which we have discussed hereinbefore. Similar, was the position in Prabha v. Ramdev (supra) which is also being discussed hereinbefore. Reference was made to the decision in All India Film Corporation v. Gyan Nath (supra), the basis of which has been explained hereinbefore. The said decision will not be applicable in respect of the facts and circumstances of the case and in view of the terms of the tenancy. Our attention was drawn by Shri Mehta to the observations of this Court in Madan Lal v. Badri Narain and Ors : (1987)3SCC460 . In that case, it was contended before this Court that there was no such rule of general acceptance that a lease of urban property by the mortgage in possession cannot be regarded to be an act of prudent management within the meaning of Section 76(a) of the Transfer of Property Act which carves out an exception to the general rule that a mortgage in possession cannot create, in the tenant inducted by him, a right to continue in possession beyond the period of redemption. Before this Court, in that case, a reference was made to the Full Bench decision of the Rajasthan High Court in Devkinandan v. Roshan Lal (supra). But in view of the facts that there was no definite finding the question is whether the alleged lease was an act of prudent management on the part of the mortgage in possession in terms of Section 76(a) was left open and that to be determined by the learned trial Judge. It has been held by this Court in numerous decisions that in case of immovable properties in urban areas, unless the leases specifically and categorically make an exception in favour of the tenant that they would continue in possession even after the expiry of termination of the leases, and those leases were acts of prudent management in no other case, the tenants inducted by the mortgage would be entitled to the protection under the Rent Act after the redemption of mortgage.46. As mentioned hereinbefore, Sh. B.K. Mehta, especially in the background of the facts in C.A. No. 9993/83, has made certain submissions relying on the observations of this Court in Jadavji Purshottams case (supra). That decision requires recapitulation of the basic principle. That decision reiterated that the tenant-appellant therein was not inducted into possession soon after the mortgage deed was executed and the mortgage was put into possession of the property but long thereafter. It is not necessary to detain us on the facts of this case. The basis of that decision was: whether the Saurashtra Act was already in force. The appellant therein was inducted into possession and his tenancy rights could not have become enlarged after the mortgage granted him the lease by a subsequent legislation enacted for affording protection to tenants. In this case, relying on the said decision, it may be reiterated that the tenancy right was not created by a mortgage in possession, wherein the mortgagor had not concurred in the grant of a lease beyond the period of mortgage. The question in that decision was whether the lease granted to the tenant by the appellant had the approval or concurrence of the mortgagor so as to entitle the tenant to claim tenancy right even against the mortgagor after redemption of the mortgage. In all these cases the major term in the mortgage deed was that the possession would be delivered on redemption. In none of these cases was there any term, at least none was adverted to, which stipulated any condition in the mortgage deed which entitled the mortgagees to create tenancy beyond the period of the mortgage. This factor along with the condition in the mortgage deed postulating the obligation to deliver possession at the expiry of the term of mortgage to the mortgagors, in our opinion, are the decisive factors showing that the tenants did not get their rights enlarged on the coming into force of the subsequent Rent Legislation. The very Preamble to the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 indicates that it was An Act to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions (and also to control the charges for licence of premises etc.). It was thought expedient to amend and consolidate the law relating to the control of rents and repairs of certain premises in our opinion, has indeed never been construed as enlarging the rates of any group of tenants who were not the tenants of the mortgagors. Hence, the question of enlargement of right by tenant legislation of persons who were in occupation hut had no rights as tenants of the mortgagors, would not arise in the context of these cases.47. Incidentally, it may be referred that in appeal from S.L.P. No. 8219/82, this question does not arise.48. In C.A. No. 1286/81, the tenancy after the period of mortgage was not bona fide. In C.A. No. 9993/83, it was submitted that the tenants were inducted after the mortgage on 28th April, 1943. The Bombay Rent Act was made applicable to the area of Kutch in September, 1951. See -Dalas Rent Act, 4th Edn. page 814. On that basis it was submitted that as there was no Act in the area of Kutch which is in pari materia with the Bombay Rent Act and therefore the rights of the tenants were enlarged by the subsequent Act. In view of the fact that the mortgage deed did not contemplate rights of the mortgagees to grant tenancy beyond the period of mortgage, and had imposed an obligation that on the expiry of the period of mortgage, mortgagors were entitled to the possession of the demised premises. In our opinion, these contentions cannot be entertained.49. Incidentally, it may also be mentioned that in C.A. No. 1286/81, the suit property was mortgaged in 1948 for a period of 5 years. The tenant was inducted by the mortgage in 1955. The period of mortgage had expired in 1953. Apparently, the mortgage had inducted the tenant after expiry of the period of mortgage, and such a conduct was grossly imprudent management, and was not bona fide. Such tenant cannot, in any event, claim any protection.50. Having considered the facts and the circumstances and the ratio of the decision in Jadavji Purshottams case (supra), we are clearly of the opinion that the tenancy rights did not come to be enlarged by the Tenancy Legislation after the tenant was put into possession by the mortgage and the tenancy created in favour of the tenants by the mortgagor did not have the concurrence of the mortgagor so as to claim tenancy rights even after redemption of the mortgage. See the observations in para 12 of the Jadavji Purshottams case (supra).