Jassa Singh & Anr. v. Surjit Singh & Ors.

Mr.Karanjit Singh, Advocate, for the appellants Rakesh Kumar Jain, J, This appeal is preferred by defendant Nos. 1 and 2 against the judgment and decree of both the Courts below whereby suit of the plaintiffs (respondent Nos.1 and 2) for possession of land by way of redemption has been decreed. Sher Singh, predecessor in-interest of the plaintiffs respondent Nos. 1 and 2 mortgaged the suit land measuring 41 kanals 16 marlas, situated in village Thoba, Tehsil Ajnala, District, Amritsar, to Avtar Singh, predecessor-in-interest of the defendants (appellant No.1 and 2) vide mortgage deed dated 20.8.1968 for a sum of Rs. 5000/- for a period of 70 years. The suit property was mortgaged due to poor financial condition of Sher Singh and period of 70 years for redemption is a clog on equity of RSA No.2816 of 2008 (O&M) 2 redemption. The plaintiffs claim that they are entitled to redeem the suit property even before the expiry of mortgaged period but on the refusal of the defendants, the suit is filed.

In reply, it was alleged that the suit is barred under Section 12 of the Redemption of Mortgages (Punjab) Act, 1913 as application filed before the Collector Ajnala was dismissed on 24.8.1988 which has become final as the plaintiff could not file the suit within one year after passing of the said order. The mortgage was admitted but it was denied that period of 70 years for redemption is a clog on equity of redemption. Both the Courts after taking the evidence adduced, decreed the suit of the plaintiff. It was found as a matter of fact that financial condition of Sher Singh was poor and he was forced/coerced to agree to unusual long period of 70 years for the purpose of redemption. Jassa Singh (DW1) has admitted in the cross examination that entire property of Sher Singh was mortgaged. He also admitted that another land of Sher Singh in village Thoba was under mortgage. It is proved on record from copy of sale deed Ex.D1 vide which Sher Singh had sold land for a sum of Rs.3350/- in the year 1972, which means that even after mortgage, he was still in need of money, as a result of which he had sold his land vide sale deed Ex.

D1. In nutshell, the learned Court below found that financial position of Sher Singh was such that he could have easily agreed/coerced to accept the terms of mortgage for a period of 70 years. Learned Court below after discussing in detail on the question of clog on equity of redemption has observed as under:- So far as the question of clog on the equity of mortgage is concerned, no doubt, it has been held in Brij Lal (deceased) represened by RSA No.2816 of 2008 (O&M) 3 his legal representatives Vs.Madan Lal Jain (supra), as relied upon by ld. Counsel for the appellants, that a period of 59 years is not itself a clog on equity of redemption. But the Hon'ble High Court in Harbans Singh and another Vs. Guran Ditta Singh and another (supra) has clearly held that once mortgage is always a mortgage and the mortgage gets extinguished by payment of mortgage money by mortgagor or a decree of redemption is passed and satisfied.

Similarly, in case Pomal Kanji Govindji and Ors. Vs. Brajlal Karansandas Purohit and ors. (supra), also, it has been again held by the Hon'ble Supreme Court that if mortgager is prevented from doing so or is prevented from redeeming the mortgage, such prevention is bad in law and such prevention can always be termed as clog. According to the Hon'ble Supreme Court, mortgage is a security of loan. It is an axiomatic principle of life and law that necessitous men are not free men. A mortgage is essential and basically a conveyance in law or an assignment of chattels as a security for which it is given. The security must, therefore, be redeemable on the payment or discharge of such debt or obligation. Any provision to the contrary, notwithstanding, is a clog or fetter on the equity of redemption and hence, bad and void. If one looks into the above observations made by the Hon'ble Supreme Court in the fore cited case, it become abundantly clear that mortgage is essential a security and it is redeemable as soon as the obligation such as loan or debt is discharged.

Even otherwise, in the instant case, there is ample evidence on record that Sher Singh mortgagor was in financial dire straits. Still further, the mortgage was created in the Year 1968 and the mortgagee had enjoyed the property for a good period of 40 years against a mortgage money of Rs. 5,000/- only. Even if the suit land RSA No.2816 of 2008 (O&M) 4 was not a cultivable land or that some money was spent by the mortgagee to reclaim it to make it cultivable, even then he has enjoyed the property for a sufficiently long period of time and equity would also demand that it is the right time when the land should be redeemed by holding that the condition of 70 years of redemption I a clog on equity of redemption. As a result of above discussion, it is held that the learned trial court has rightly held that the period of 70 years mentioned in the mortgage deed for redemption is a clog on the equity of redemption of mortgage.

The findings of the ld. Trial court on issues NO. 1 & 2 are therefore, affirmed. Similarly, the findings of the ld. Lower Court on issues No. 4 to 6, 8 and 9 are also affirmed. Regarding issue No. 3, it needs to be observed that though an application for redemption was filed under section 4 of the Punjab Redemption of Mortgage Act by respondent/plaintiff Surjit Singh in respect of suit land, which was dismissed on 24.4.1998, the present suit having been filed on 15.9.2000 cannot be said to be barred. In this regard, a reference can be made to Gurmej Kaur vs. Pritwam Singh, 1997 (2) RCR (Civil) 100 (P&H), where in it has been held that if Collector dismissed an application for redemption in 1970 and suit for possession by redemption was filed in 1986, the objection of bar of limitation in view of Article 100 of Limitation Act cannot be said to be tenable and the suit under Section 60 of Transfer of Property Act for redemption was maintainable and the civil court has jurisdiction to grant decree of redemption.

In the light of the laws laid down in this case, objection regarding non maintainability of the suit after a gap of more than one year from the date of dismissal of the application for redemption by the Collector cannot be sustained in the eyes RSA No.2816 of 2008 (O&M) 5 of law. The findings of the ld. Trial Court on issue No. 3 are also therefore, affirmed. Learned counsel for the appellants has argued that there was no clog on equity. The property has been mortgaged by Sher Singh with his free will, therefore, the appellants cannot seek redemption before the expiry of period of 70 years. I have heard learned counsel for the appellants and have perused the record with his assistance. In the case of Ajit Singh Vs. Kakhbir Singh and others 1992 P.L.J. 263 (P&H), land was mortgaged for 95 years and it was held that such a clause in the mortgage deed that the land is irredeemable for 95 years is a clog or fetter on the equity of redemption and hence bad.

In this regard, it was held as under:

The right of redemption is without doubt a statutory right which cannot be fettered by any condition which impedes or prevents redemption and any such condition is void as a clog on the equity of redemption. The circumstances in which the mortgagor was compelled to secure the amount, terms and conditions on which the amount was in fact advanced, and the other alternative to which the mortgagor could have taken recourse for obtaining the sum advanced are relevant factors for determining whether particular term of redemption amounts to a clog on the equity of redemption because it is unreasonably long. The term as to the postponement of right of redemption of mortgage for a period of 95 years read with the other conditions mentioned in the mortgage deed would amount to a clog on the right of redemption.

No other point has been argued before me by the learned RSA No.2816 of 2008 (O&M) 6 counsel for the appellants. In view of the above, I do not find any merit in this appeal and the same is dismissed, though without any order as to costs. January 29,2010 RR (Rakesh Kumar Jain) Judge