Patna High Court · 2010
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.438 of 2010 ====================================================== Smt. Leela Devi .... .... Appellant Smt. Jeera Devi Versus .... .... Respondent ====================================================== Appearance : For the Appellant/s : Mr. Surendra Kumar For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 7 26-07-2013 Heard the learned counsel Mr. Ashok Kumar appearing on behalf of the appellant and the learned counsel Mr. Anil Chandra appearing on behalf of the respondent under Order 41 Rule 11 of the Code of Civil Procedure. The plaintiff appellant appellant has filed this second appeal against the judgment and decree dated 10th May 2010 passed by the learned Additional District Judge, Fast Tract Court No.1, Nalanda at Bihar Sharif in Title Appeal No. 10 of 2003 whereby the learned lower appellate court dismissed the appeal
Legal Reasoning
and affirmed the judgment and decree dated 21st May 2003 passed by the learned Sub Judge-7th, Bihar Sharif at Nalanda in Title Suit No. 52 of 1998/ 212 of 2003. The plaintiff filed the aforesaid suit for declaration of his title on the suit property and for a direction to the defendant to execute and register a sale deed and also recovery of amount of Patna High Court SA No.438 of 2010 (7) dt.26-07-2013 2 Rs.17500/-. According to the plaintiff the defendant has executed a registered mortgage by conditional sale deed on 2.6.1994 in favour of the plaintiff after receiving Rs.35000/-. It was agreed between the parties that the Rs. 35000/- would be returned within three years to the plaintiff by the defendant and in default thereof the sale would become absolute. The defendant had mortgaged 1.56 decimal of land by conditional sale deed but he in fact concealed the fact that out of the suit land he had already sold 63 decimal of land to one Kishori Prasad and for saving her title the plaintiff purchased the said land from Kishori Prasad on 7.9.1994 on payment of consideration amount of Rs.15000/-. Therefore, the plaintiff prayed for recovery of the consideration amount of Rs.15000/- with registration fee of Rs.2500/-. Since after expiry of three years also the defendant neither returned the money nor he executed any sale deed therefore, plaintiff filed the suit. The defendant filed contesting written statement and according to her the defendant never agreed to return the amount within three years and in fact the contents of the mortgage deed was never read over and explained to her and her husband. In fact the defendant has executed a mortgage deed. The defendant had in fact approached the plaintiff to receive the amount and return the deed but the plaintiff refused. Patna High Court SA No.438 of 2010 (7) dt.26-07-2013 3 The trial court dismissed the plaintiff’s suit finding that the condition imposed in the deed regarding return of the amount to the plaintiff within three years is clog on the equity of redemption. The trial court also recorded the finding that amount of compensation claimed is time barred. On appeal, the lower appellate court upheld the finding and then dismissed the appeal.
Legal Reasoning
The learned counsel Mr. Ashok Kumar appearing on behalf of the appellant submitted that in the deed itself it is clearly mentioned that within three years if the amount is not returned the sale will become absolute and the defendant is required to execute the sale deed. The defendant has admitted the execution of the mortgage by conditional sale. He never returned the amount within three years therefore, now the title vested on the plaintiff so he has filed the suit for declaration of title. While dismissing the plaintiff’s suit both the courts below have not considered the provision as contained under Section 67 clause (a) of the Transfer of Property Act which enables the mortgagee to institute the suit for foreclosure. So far the compensation amount is concerned the defendant intentionally had sold 63 decimal of land prior to executing the mortgage deed to Kishori Prasad and to save the title the plaintiff purchased the property from Kisori Prasad for Patna High Court SA No.438 of 2010 (7) dt.26-07-2013 4 Rs.15000/- and spent Rs.2500 in stamp and registration. Therefore, the plaintiff had prayed for the said compensation amount also. It is admitted fact that a deed of mortgage by conditional sale was executed on 2.6.1994. There is stipulation in the mortgage deed that the amount of Rs.35000/- is to be returned within 1st of June 1997. According to the plaintiff when the said amount was not returned by the defendant, the plaintiff has filed this suit for declaration of title in the year 1998. From perusal of the lower appellate court judgment it appears that the question raised by the learned counsel for the appellant regarding Section 67 of the Transfer of Property Act has already been considered. According to the courts below this is not a suit for foreclosure under section 67 of the Transfer of Property Act. The plaintiff has filed the suit for declaration of title on the ground that the defendant has not returned the amount within the stipulated period of three years therefore, now the mortgage by conditional sale become the absolute sale. In the case of Murarilal vs. Devkaran AIR 1965 SC 225 the five Judges bench of the Hon’ble Supreme Court held that if there would be no scope for the mortgagor to say anything it necessarily meant that in the event of the amount due under the Patna High Court SA No.438 of 2010 (7) dt.26-07-2013 5 mortgage remaining unpaid within the stipulated period the mortgagor's title would be extinguished and the mortgagee would become the absolute owner of the property, the stipulation in the mortgage deed will amount to a clog in the equity of redemption. It appears that in that case also there was mortgage by conditional sale. Here in the present case the period of return of the amount is for three years whereas the case before Hon’ble Supreme Court the period was 15 years. In another case reported in AIR 1989 SC 436 Pomal Kanji Govindji and others vs. Vrajlal Karsandas Purohit and others the Hon’ble Supreme Court has held that freedom of contract is permissible provided it does not lead to taking advantage of the oppressed or depressed people. The law must transform itself to the social awareness. The doctrine "clog on the equity of redemption" is a rule of justice, equity and good conscience. It must be adopted in each case to the reality of the situation and the individuality of the transaction. A clog on the equity of redemption is unjust and unequitable. The principles of English law look with disfavour at clogs on the equity of redemption. Section 60 of the Transfer of Property Act, in India, also recognises the same position. It is a right of the mortgagor on redemption, by reason of the very nature of the mortgage, to get Patna High Court SA No.438 of 2010 (7) dt.26-07-2013 6 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. The same view has been reiterated by the Hon’ble Supreme Court recently in the case of AIR 2006 SC 686 Harbans vs. Om Prakash and Ors. The Hon’ble Supreme Court has held that no limitation applies to right of mortgagor to redeem property. The rule against clogs on the equity of redemption is that, a mortgage shall always be redeemable and a mortgagor' right to redeem shall neither be taken away nor be limited by any contract between the parties. It appears that in that case the suit was filed for declaration of title on the ground that the limitation for redemption of the land expired. The trial court decreed the suit. The lower appellate court set aside the trial court judgment and dismissed the plaintiff’s suit. The second appeal was also dismissed. The plaintiff filed appeal before the Hon’ble Supreme Court and by the judgment and decree reported the appeal was dismissed. In view of the above settled propositions of law laid down by the Hon’ble Supreme Court, in my opinion, the grounds raised by the learned counsel for the appellant are not at all Patna High Court SA No.438 of 2010 (7) dt.26-07-2013 7 substantial question of law to be decided in the present second appeal because the same question has already been settled by the Hon’ble Supreme Court. I therefore, find that no substantial question of law is involved in this second appeal. Accordingly, this second appeal is dismissed at the admission stage itself. S.S./- (Mungeshwar Sahoo, J)