MANU/GJ/0095/1973

Equivalent Citation: AIR1973Guj93

IN THE HIGH COURT OF GUJARAT

Second Appeal No. 604 of 1966
Decided On: 01.05.1972
Appellants: Valdas and Ors.
Vs.
Respondent: Bai Jivi and Ors.
Hon'ble Judges/Coram:
A.A. Dave, J.
Counsels:
For Appellant/Petitioner/Plaintiff: M.B. Shah, Adv.
For Respondents/Defendant: N.V. Karlekar, Adv.

JUDGMENT
1. This appeal is directed against the judgment and decree of the learned District
Judge, Mehasana allowing regular Civil Appeal No. 5 of 1965 and setting aside the
judgment and decree passed by the learned Civil Judge, Junior Division, Visnagar in
Civil Suit No. 52 of 1962.
2 . The appellants in the instant case and the original plaintiffs. One Patel Virchand
Madheva had mortgaged the suit house to one Jota Punja, for Rs. 130/- on Posh Sud
9 of Samvat year 1962. On the death of Virchand, his daughter Bai Ugari inherited
the properties of Virchand. On 15-9-1916, Bai Ugai again mortgaged the suit property
with the said mortgage Joita Punja for Rs. 400/- wherein it was agreed that the
mortgage would be redeemed after 99 years. The present plaintiff are the heirs of
Devakaran Jiva, husband of Bai Ugari. They filed the suit for redemption of the
mortgage stating that as redemption of the mortgage stating that as they were the
debtors under the Bombay Agriculture Debtors Relief Act the debts stood
extinguished on account of the failure of the creditor to file an application under this
said Act for adjustment of the debt. They, therefore, prayed for possession of the suit
property from the defendants. the defendants filed written statement, at Ex. 14. They
admitted that they were the heirs and legal representatives of Patel Jota Punja. They.
however did not admit that Bai Ugai was the wife of Devkaran, Jiva and that Valji Jiva
the father of plaintiffs Nos. 1, 2, 3 and 4 and Sangha Jiva, father of defendant No. 5,
were the brother of Patal Devkaran Jiva. They denied that the condition in the
mortgage deed fixing the period of 99 years for redemption was a clog on the equity
of redemption. They denied that the plaintiff were the debtors within the Bombay
Agriculture Debtors Relief Act and their debt was not exceeding Rupees 15,000/- on
31-3-1950. They stated that suit No. 97 of 1960 was filed by Amgalal Kakldas for
redemption of their mortgage claiming himself to be the heir of Bai Ugari wherein the
present plaintiffs at their instance were joined as co-defendants. The suit was
however with-drawn by Patel Ambala Kakldas with permission to institute a fresh suit
on the same subject-matter and that therefore the present suit was not maintainable

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as the present plaintiffs had not obtained the permission to institute the fresh suit on
the same subject-matter and that therefore the present suit was not maintainable as
the present plaintiffs had not obtained the permission to institute the fresh suit on the
same subject-matter. On the pleasing of the parties, the learned trial Judge framed
several issues at Ex. 20. He decided issues a Nos. 1, 2, 3, and 5 in the affirmative
and issues nos. 4, 6, and 7 in the negative. h e held that the debt was not
extinguished. According to him the suit was not premature and that it was open to
the plaintiff to file the suit for redemption . He therefore, passed a decree
accordingly. Against the said judgment and decree of the learned trial Judge, and
appeal was preferred in the District Court, Mehsana and the learned District Judge set
aside the judgment and decree of the trial Court and dismissed the suit. Against the
said judgment and decree of the learned District Judge, the original plaintiffs have
preferred the present appeal to this Court.
3 . Mr. M. B. Shah, learned Advocate for the appellants submitted that in the suit
case. the mortgage was for a period of 99 years. Such a long period for redemption
for the mortgage would amount to clog on the equity of redemption. The plaintiffs
could therefore ignore this condition and would be competent to file a suit for
redemption. He urged that the was provision in the mortgage document permitting
the mortgagee to make construction and therefore if the mortgagee made some
construction on the mortgaged property. it would be beyond the means of mortgagor
to redeem the same and therefore, such a condition also would amount to a clog on
the equity of redemption. Lastly, Mr. Shah urged that as the mortgagee had denied
the title of the mortgagor in the suit property and had denied the existence of the
mortgage deeds. it was open the mortgagor to file a suit for redemption prior to the
expiration of the period mentioned in the mortgage deed. He, therefore, urged that
the learned District Judge was clearly in error in dismissing the suit on the ground
that it was premature.
4. Mr. N. V. Karlekar, learned Advocate for the respondents on the other hand urged
that a period of 99 years for redemption of the mortgage cannot amount to a clog on
the equity of redemption. He stated that the was a provision in the mortgagee to
make necessary repairs in order to maintain the property intact. It did not give any
discretion to the mortgagee to make any new construction in any manner he liked.
He, therefore stated that the submissions made by the learned Advocate for the
appellants that the would be beyond the means of the mortgagor to redeem the
property if the mortgagee constructed a new house would not arise. He admitted that
in the trial Court, the defendants had denied about the existence o f the mortgage.
However, in the district Court their Advocate had given up this contention and the
appeal was heard on the basis that there was a valid mortgage. In order that there
may not be any room for doubt, Mr. Karlekar has produced a writings singed by all
the respondents (defendants) stating that the mortgage document executed on 15-9-
1916 is binding on them and that it would be open to the appellants to redeem the
mortgage on the expiration of the period of 99 years mentioned therein.
5. In order to appreciate the submission made by Mr. Shah. it will be worth while to
refer to the mortgage document Ex. 37. Ex. 37 is a certified copy of the mortgage
document. This mortgage was executed by Bai Ugari, wife of Patal Devokaran Jiva on
15-9-1916 by which she created a further mortgage over the property on payment of
a further amount of Rs. 205/- . It is mentioned in this document that no interest will
be charged on the mortgage amount and the mortgagor will not be entitled to claim
the land of the house which was mortgaged with possession to the mortgagee. there
was a further condition that whatever expenses may have to be incurred towards the

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repairs of the house will be taken into account at the time of the redemption of the
mortgage that the period for redeeming the mortgage was fixed at 99 years and that
it could be redeemed only on the expiration of that period. Thus, there is nothing in
this document showing that it permitted the mortgagee to make any new construction
he liked. The submission made by Mr. Shah that if the mortgagee made any new
construction, it would be beyond the means of the mortgagor to redeem the same,
have, therefore not basis, There is no reasons for the mortgagor to believe that the
mortgagee would make a new construction over the mortgaged property and that the
mortgagor would be burdened with the expenses incurred by him towards the
reconstruction of the property. The only liberty given under the mortgage document
is to make necessary repairs for the presentation of the property. It is will not be
open to the mortgagor to make the any grievance because such a right is given to the
mortgagee under the Transfer of property Act itself.
Section 63-A (2) of the Act says:--
"Where any such improvement was effected at the cost of the mortgagee and
was necessary to preserve the property form destruction or deterioration or
was necessary to prevent the security from becoming insufficient, or was
made in compliance with the lawful order of any public servant or public
authority the mortgagor shall, in the absence of a contract to the contrary. be
liable to pay the proper cost thereof as an addition to the principal money
with interest at the same rate as is payable on the principal, or, who on such
rate is fixed, at the rate of nine per., per annum, and the profits, if any,
accruing by reason of the improvement shall be credited to the mortgagor".
Thus even if the no such condition had been incorporated in the mortgage document;
by virtue of the provisions of Section 63-A (2) of the Transfer of Property Act. the
mortgagee would have been entitled to recovery any expenses in incurred by him for
the preservation of the property. It cannot therefore been said by any stretch of
imagination that the condition incorporate din the mortgage document pertaining to
the expenses which may be incurred by the mortgagee for the preservation of the
property, would amount to a clog on the equity of reception. In my opinion therefore,
the submission made by Mr. Shah in this connection are avoid of any merit.
6. Mr. Shah next urged that the period of 99 years fixed in the mortgage documents
for redemption of the property itself would amount to a clog on the equity of
redemption. In support of the say he referred to the case of Vadilal Chhaganlal v.
Gokaldas Mansukh, MANU/MH/0171/1953 : AIR 1953 Bom 408, wherein it was
observed that:--
"In dealing with the question as to whether a long terms for redemption it is
necessary to consider all the circumstances attending the execution of the
mortgage deed,. The amount advanced under the mortgage, the nature of the
security offered by the mortgagor the circumstances in which the mortgagor
was compelled to secure the amount, the terms and conditions on which the
amount was in fact advanced, and the other alternatives to which the
mortgagor would have taken recourse for obtaining the sum advanced would
have to be considered before it is held that a particular terms of redemption
amount to a clog because it is unreasonably long".
In this case. the agreement between the mortgagor and mortgagee was that the
mortgagor was to redeem the mortgage 99 years after it execution and the mortgagee

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was given full authority to build any structure on the plot mortgaged after spending
any amount he liked . On these facts,. it was held that:
".............. the two terms to the mortgage were so unreasonable and
oppressive that they amounted to a clog on the equity of redemption".
In my opinion, even though this case particle helps the submission made by the
learned Advocate for the appellants that very long period permitting the mortgagor to
redeem the property, may amount to a clog on the equity of redemption in certain
causes in view of the circumstances of each case, but this is not authority on the
point that merely because the mortgage is fixed for 99 years necessarily such a long
period would amount to a clog on the equity of redemption. In the Bombay Case, the
Court held that the long period for 99 years coupled with the condition permitting the
mortgage to build any structure on the plot mortgaged after spending any amount he
liked, would amount to a clog on the quite of redemption. Naturally, if the mortgage
is permitted to construct a new building over the piece of the land mortgaged to him
and spend any amount he liked in his discretion it will be beyond them the means of
the mortgagor to redeem the property after making payment to the mortgagee not
only of the mortgage amount but payment of the construction made by the mortgagee
. In the instant case, as already referred to earlier. the only condition incorporated in
the mortgage deed was for payment of repair charges which the mortgagee may be
required to make for the preservation of the mortgaged property. As already seen
such a condition is in consonance with the provision of the act itself. It cannot
therefore be said that this condition could in any way amount to a clog on the equity
o f redemption. This condition could not be equate with the condition could not be
equated with the condition in the Bombay case where the mortgagee was permitted
to make a new construction in any manner he liked and to spend any amount he
liked. Such a condition was rightly held to be a clog on the equity of redemption by
the Bombay High Court and with respect, I agree with the view taken therein. But the
in my opinion, mere long period foxed in the mortgage document for redemption of
the mortgaged property would not amount to a clog on the equity of redemption in
the absence of other circumstances enumerated in the Bombay case. I am supported
in my view by the case the Ganga Dhar v. Shankar Lal MANU/SC/0118/1958 : AIR
1958 SC 770 wherein it was observed that:--
"................... in the circumstances the terms in the mortgage it will not be
redeemable until the expiry of 85 years was not a clog on the equity of
redemption. The bearing was a reasonable one and the mortgagee had not
taken any unfair advantage of his position as the lender. Nor was the
mortgagor under any financial embarrassment. The terms could therefore be
enforced with the result that the suit was premature and must fail".
It will thus be clear the merely because the mortgage document. Ex. 37 provided that
the mortgage cannot be redeemed before the expiry of 99 years, such a condition
cannot be said to be unreasonable and cannot amount to a clog on the equity of
redemption . There is no the evidence showing that the mortgagee that taken any
unfair advantage of his position as a lender. Mr. Shah has been unable to show that
merely because Bai Ugrui was a woman the mortgagee had taken an unfair
advantage. There is nothing on record showing that she was in financial
embarrassment. I n my view therefore a mere condition fixing the period for
redemption at 99 years cannot be said to be unreasonable and cannot amount to a
clog on the equity of redemption.

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7. Mr. Shah then referred to the unreported decision of this Court in Second Appeal
No. 978 of 1961 decided on 5-2-1969 (Guj) wherein Thakor, J. after considering both
the Bombay High Court and the Supreme Court decisions, made the following
observations:--
"The Court should not try to read the Judgment in spirit of revolt. but should
try as far as possible to appreciate the reasoning of the judgment. I t is
undoubtedly true that the if a decision of the Supreme Court is cited before a
Court which clearly weakens the authority of a decision. the Court should not
hesitate to come to that conclusion. But in the present case their Lordships of
the Supreme Court have used extremely cautions language when they have
laid down the principle and that principle is that the length of the terms
which in that case was long enough being 85 years, it self could not lead to
the conclusion that it was an oppressive term. If the Supreme Court had held
that such a terms could in no event be regard as oppressive terms then the
position might have been different. In the Bombay case, there were two
terms. One was a long terms of 99 years and the other term was a different
terms. It is no doubt true that in the Bombay case their Lordship also come
t o the conclusion that the long terms for redemption conferred a collateral
advantage which was unfair to the mortgagor, but that is not ratio of the
decision. In addition, their Lordship also came to the conclusion that there
was another terms which also operated as a clog on the equity of
redemption. Having discussed all this position, their Lordship held that the
two terms o f the mortgage were unreasonable and oppressive and hence
they amount to a clog on the equity of redemption. The position therefore,
on the discussion of the law is that I have come to conclusion that the terms
in the mortgage is oppressive to the mortgagor. The second terms is clearly
oppressive to the mortgagor and it undoubtedly confers upon the mortgagee
an advantage to which , in equity, according to me, he was not legitimately
entitled".
8. In my opinion this case is decide don its own facts. In this case also, there was a
condition authorities the mortgagee to make a new construction of his choice. Taking
this condition along with the long period of 99 years. it was decided that they were
unreasonable and oppressive and would amount to a log on the equity of the
redemption. In my view, this case does not lay down any proposition of law that
mere long period for redemption o of the mortgage prescribed in the mortgage
document would itself amount to a clog on the equity of the redemption. In the light
of the Supreme Court decision referred to above it cannot be said that mere long
period prescribed in the mortgage document for redemption of the mortgage would
amount to a clog on the equity of redemption. There is other condition in the
mortgage document which is oppressive or unreasonable. I , therefore, do not agree
with the learned trial Judge that the period of 99 years would work hardship on the
mortgagor and that itself would amount to a clog on the equity of redemption.
9 . Mr. Shah next urged that in the instant case the defendants had denied that
existence of the mortgage transaction. In order words, the defendant had denied the
title of the mortgagors-plaintiff. He, therefore, urged that in equity, the plaintiff
should be permitted to redeem the mortgage before the expiry of the period
mentioned in the mortgage deed. As already observed earlier, this question on longer
remains open. Mr. Karlekar, learned Advocate for the respondents-defendants had
already produced a writing singed by defendants Nos. 1, 2 and 3 stating that they
abide by the mortgage document and that the would be open to the mortgagor to

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redeem the same on the expiry of 99 years. Under the circumstances, the question of
giving equitable relief to the plaintiffs does not arise. Taking an over-all picture of
this case, I entirely agree with the learned District Judge that the suit filed by the
plaintiffs for redemption of the mortgage is premature. The learned District Judge
had, therefore, rightly dismissed the suit.
10. In the result, the appeal fails and is dismissed with costs.
11. Appeal dismissed.

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