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2000 (3) TMI 1102

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..... n 60 of the Transfer of Property Act. In support of their contentions the appellants have relied upon the judgment of this Court in Ganga Dhar vs. Shankar Lal [AIR 1958 SC 770 = 1959 SCR 509] and distinguished the judgment relied upon by the High Court in the case of Pomal Kanji Govindji ors.vs. Vrajlal Karsandas Purohit Ors. [AIR 1989 SC 436]. In order to appreciate the rival contentions, it is necessary to take note of the facts of the case which have given rise to the filing of the present appeal. The disputed property was owned by one Prakash Singh who had mortgaged the same in favour of Smt.Basant Kaur for a sum of ₹ 7,000/- vide mortgage deed dated 19.3.1968. The said Smt.Basant kaur died whereafter the appellants herein stepped into her shoes qua the suit property and, according to the plaintiffs became mortgagees in possession of the said land. The said Shri Prakash Singh, the original owner, sold the land measuring 19 kanals 2 marlas out of the mortgaged property in favour of the respondents Sucha Singh vide registered sale deed dated 25th March, 1987 for a valid consideration by which the mortgage money of ₹ 7,000/- was kept with the respondent-plaintif .....

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..... h vs. Kakhbir Singh and others. As such the argument advanced on behalf of the defendants on this account must fail. The case of the plaintiff could not be resisted on any other cogent ground. The plaintiff-respondent was held to have proved that he was entitled to get whole of the disputed land redeemed by payment of the mortgage money of ₹ 7,000/- to the appellants-defendants. In view of positive findings on Issue Nos.1 and 2 in favour of the plaintiffs, issue No.3 was decided against the defendants and suit decreed as noticed earlier. The appellate court also decided on facts that the plaintiff after the purchase of the land, the subject matter of the suit, had become mortgagor and was entitled to redeem the same prior to the period of 99 years fixed in the mortgage deed. The clog or fetter of redemption imposed in the mortgage deed was held to be void which did not prevent the plaintiffs to seek redemption of the mortgaged property prior to the aforesaid period. Section 60 of the Transfer of Property Act provides that at any time after the money has become due, the mortgagor@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ has a right, on payment or tender, at .....

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..... . This is the idea of a mortgage; and the security is redeemable on the payment or discharge of such debt or obligation, any provision to the contrary notwithstanding. That, in my opinion is the law. Any provision inserted to prevent redemption on payment or performance of the debt or obligation for which the security was given is what is meant by a clog or fetter on the equity of remption and is therefore void. It follows from this, that once a mortgage always a mortgage. The right of redemption, therefore, cannot be taken away. The court will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage. One thing, therefore, is clear, namely, that the term in the mortgage contract, that on the failure of the mortgagor to redeem the mortgage within the specified period of six months the mortgagor will have no claim over the mortgaged property, and the mortgage deed will be deemed to be a deed of sale in favour of the mortgagee, cannot be sustained. It plainly takes away altogether, the mortgagor's right to redeem the mortgage after the specified period. This is not permissible, for once a mortgage always a mortgage and therefor .....

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..... reported cases on the subject, for each turns on its own facts. The Court further held that the length of term by itself would not lead to the conclusion that it was an oppressive term. Restricting their findings on the facts of the case, the Court observed it is not necessary for us to go so far as to say that the length of the term of the mortgage can never by itself show that the bargain was oppressive. We do not desire to say anything on that question in this case. We think it enough to say that we have nothing here to show that the length of the term was in any way disadvantageous to the mortgagor . In Pomal Kanji Govindji Ors. v. Vrajlal Karsandas Purohit Ors. [AIR 1989 SC 436] this Court held that@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ freedom of contract is permissible provided it does not@@ JJJJJJJJJJJJJJJJJJJJJJJJJ lead to taking advantage of the oppressed or depressed people. The law must transform itself to the social awareness. Poverty should not be unduly permitted to curtail one's right to borrow money on the ground of justice, equity and good conscience on just terms. If it does, it is bad. Whether it does or does not, must, however, depend up .....

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..... 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 mortgagee 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 correlated 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. It was further held that Section 60 of the Transfer of Property Act confers on the mortgagor right of redemption which is a statutory right. The right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage subsists. Whether in a particular case there is any clog on the equity of redemption, has to be decided in view of the background of a particular case. The doctrine of clog on equity of redemption has to be moulded in modern conditions. In this regard the Court held: It is a settled law in England and in India that a mortgage cannot be made altogether irredeemable or redemption made illus .....

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