SONI MOTIBEN Vs. HIRALAL LAKHAMSHI

JUDGEMENT

(1.) The heirs of the original-diffident of Regular Civil Suit No. 201 of 1970 on the file of the learned Joint Civil Judge Junior Division Bhuj have filed this second appeal challenging the preliminary decree for redemption of suit mortgage as passed against the original-defendant by the Trial Court and as confirmed by the learned District Judge in appeal. The respondent is the original-plaintiff

(2.) In order to appreciate the main controversy between the parties in the present proceedings it is necessary to have a glance at certain relevant facts leading to the present litigation. The suit shop around which the dispute ceteras is situated near Minara Masjid in Bhuj town of Bhuj district. The original owners of this shop were two brothers named Memon Suleman Haji Ayub and Haji Abdul Sakur Ayub. A mortgage of the said shop with possession was effected in favour of one Soni Bhailal Damji who was the original-defendant in the trial Court. The present appellants 2 to 8 are the children of original-defendant. The Appellant No. 1 is his widow. The mortgage of the said drop in favour of original-defendant was entered into by the aforesaid tow brothers for Rs. 4 0 by a registered mortgage deed dated 17/07/1940. The mortgagee entered into possession of the suit shop after the execution of the aforesaid mortgage deed in his favour. Thereafter the mortgagee in possession-original defendant inducted the present plaintiff-respondent as his tenant in the suit shop. The respondent-plaintiff thereafter purchased the equity of redemption of original mortgagors in the suit shop for Rs. 1 300 by a registered document dated 14/02/1969 and then the present-respondent plaintiff filed Regular Civil Suit No. 201 of 1975 in the Court of the learned Joint Civil Judge Junior Division Bhuj for redemption of the suit mortgage and contended that the two terms inserted in the original mortgage document in favour of defendant-mortgagee by the original-mortgagors were unconscionable oppressive and unreasonable. The first term referred to the period of 99 years as duration of the mortgage as accompanied by a further term enabling the mortgagee in possession to make any changes in the said mortgaged property as he liked and to make any alterations and additions thereto and a further provision was that after 99 years when the mortgagor went to redeem he had to pay all the expenses incurred by the mortgagee for the alterations and reconstructions made in the suit property. It was contended that both these terms were liable to be ignored by the Court and hence the plaintiff-respondent was entitled to pray for a decree for redemption within the period of limitation prescribed by the Limitation Act starting from the date of the original mortgage of year 1940 It was therefore contended by the respondent-plaintiff that his suit for redemption of the suit mortgage notwithstanding the term of non-redemption for 99 years was not premature and was maintainable.

(3.) The original-defendant resisted the aforesaid suit of the plaintiff mainly on two grounds. Firstly it was contended that the suit was premature on account of a clear term for non-redemption of the suit-mortgage from she date of its execution in 1940. It was further contended that the terms provided in the mortgage document did not amount to any clog on the equity of redemption and they were usual terms which were quite enforceable and legal. It was alternatively contended that even assuming that the impugned terms amounted to clog on the equity of redemption even then the said contention would be available to the original mortgagors and not to the plaintiff who was a purchaser of equity of redemption and was merely trafficing in litigation by purchasing somebody elses rights. In short the contention on this aspect was that the plea available to the original-mortgagors to be relieved against clog on equity of redemption was a personal plea and was not available to the purchaser of equity of redemption from them. The learned Trial Judge who framed issues and recorded evidence of the parties came to the conclusion that both the main defences as put forward by the original-defendants were untenable. It was found as a matter of fact on the evidence recorded by the learned Trial Judge that the economic condition of the mortgagors in the year 1940 was not sound and the impugned term postponing the redemption for a period of 99 years as well as giving absolute right to the mortgagee in possession to make any changes in the suit property as he liked and the mortgagors being required to pay for all these construction charges to the mortgagee in case of redemption clearly showed that the poor mortgagors were prevailed upon and the impugned terms were inflicted on them and the mortgagors were not in a position to avoid these terms. It was therefore found by the learned Trial Judge on evidence that the mortgagors were forced to enter into all these terms in the document. Consequently these terms amounted to the clog on the equity of redemption. It was further found by the learned Trial Judge that the plaintiff as a purchaser of equity of redemption from the original mortgagors was entitled to be relieved against the aforesaid clogs on the equity of redemption and was therefore competent to file the suit within the prescribed period of limitation for redemption of the said mortgage starting from the date of execution of the mortgage.