MOHAMMED MOIDEEN Vs. MOHAMMED MOIDEEN

JUDGEMENT

(1.) The second defendant in a suit for redemption is the appellant The predecessor of the plaintiffs mortgaged the plaint schedule property to the defendants on 9.4.1949 under Ext. A1. The term of the mortgage was five years. There was a partition between the mortgagees under Ext. B1 dated 15.12.1970 under which the properties sought to be redeemed was allotted to the share of the second defendant. The second defendant resisted the suit contending that the mortgagor has lost his right over the property, and hence was not competent to seek redemption of the mortgage. The mortgagors pleaded that the relevant clause in the deed of mortgage relied on by the mortgagee to resist their claim for redemption was invalid in law being a clog on redemption and hence there submitted in them the right to redeem and recover possession of the mortgaged property on payment of the mortgage money. The Trial Court held that the relevant clauses relied on by the mortgagee to deny the redemption to the mortgagors was invalid being a clog on redemption and that no other valid objection having been put forward by the mortgagees, the mortgagors were entitled to a decree for redemption. The appeal by the second defendant challenging this decree and pleading that the rights of the mortgagors have become extinguished was repelled by the lower appellate Court which dismissed the appeal filed by the second defendant. Feeling aggrieved the second defendant has filed this Second Appeal by raising the following two substantial questions of law:-

(2.) The relevant terms of the mortgage Ext. A1 dated 9.4.1949 can now be referred to. The document is described as a possessory mortgage. Rs.100 was borrowed. The term of the mortgage was five years. The document provided that the mortgage money was to be tendered within four months of the expiry of five years from the date of the mortgage. Then it was provided that if the mortgage money was not tendered or paid within 4 months after the expiry of the term of the mortgage of five years, the mortgagee could keep the property thereafter as owner of the property. Obviously there was no tender of the mortgage money within four months of the expiry of the term of five years. The mortgagees on 15.12.1970 divided their properties and treated the mortgaged property as if it was held by them in ownership presumably in view of the relevant clause in that behalf in the mortgage. It was allotted in B Schedule to defendant No. 2. A notice was issued on behalf of the legal representatives of the original mortgagor, the present plaintiffs on 20.11.1983 calling upon the mortgagees to permit the mortgagors to redeem the mortgage by paying the mortgage money. Therein the mortgagors had adopted the stand that the clause which purports to extinguish their right to redeem was invalid in law. A reply was sent on behalf of the mortgagees on 10.12.1983 denying the claim for redemption. The suit was thereafter filed on 15.3.1984 for redemption of the mortgage.

(3.) It may incidentally be noticed that two substantial questions of law formulated in the Memorandum of Second Appeal do not project the contention that the rights of the mortgagors are lost and the mortgagees has become the owner of the property. But the main argument addressed before me at the hearing by Senior Counsel Mr. P.N.K. Achan was that the relevant clause was valid and in the absence of any evidence on the side of the mortgagors, the same could not be treated as a clog on redemption as was done by the Courts below and consequently the decrees of the Courts below called for interference in this Second Appeal. Since this question arises out of the term of the deed and the findings by the Courts below and this contention was met on merits by counsel for the plaintiffs, I have decided to raise the question of the validity of the relevant clause in the deed of mortgage as one of the substantial questions of law arising for decision. I shall straightaway tackle that aspect.