GANCHI ALIMAMMAD UMAR Vs. GUSAI GOVINDGARJI RANGNATHGARJI

JUDGEMENT

(1.) The vital and substantial question as to whether the stipulation incorporated in the mortgage deed for the postponement of redemption for spell of 99 years conjoint with the right enabling the mortgage to rebuild or make the superstructure from the foundation for his use and convenience on the mortgaged property and then to be entitled to be reimbursed at the time of redemption would tantamount to a CLOG on the Equity of Redemption has again surfaced in this appeal alongwith incidental and attendant some other questions. In order to determine and adjudicate upon the questions in the focus it would be expedient to set out and have a close look into the factual scenario at the threshold.

(2.) The disputed transaction of mortgage came to be executed on lunar date 9th of Chaitra Sud S. Y. 1999 (Monday) corresponding English date 13/05/1943 in favour of the creditor one Shri Ghanchi Osman Ismail (original mortgagee) by the debtor one Shri Gosai Dayalgarji Laxmangarji administrator of one Math known as Gosai Ghanshyamgarji Nirmalgarji of the city of Mandvi (original Mortagagor) in respect of one property situated out side Bhujwala Naka on public road leading to Mota Salaya having two doors two dhaliyas two shops for the consideration of mortgage money of Royal Koris 31 0 equivalent to Rs. 10 333 ps. (mortgaged property). The mortgage deed was produced at Exh. 40 in the Trial Court. As per the mortgage document the enclosed plot with superstructure standing thereon and it had two entrances one on the eastern side and the another on the northern side. The superstructures were covered. There was bath room well and there were two shops on the said mortgaged plot. In this plot on the northern side there was a room with a well prepared and covered with country tiles. This big room was situated east-west on the open plot of the mortgaged property and it is shown divided. They had four entrances and six windows falling in the enclosed plot of the mortgaged property and towards the southern side one entrance and one window was facing east towards the public road. There were two shops and the northern side facing Raj-Marg (public road). An elaborate description of the mortgaged property as it existed at the time of the transaction is found in the mortgage document at Exh. 40. Subsequently at the time of filing of the suit many changes came to be made by the mortgagee pursuant to the stipulation in the mortgage deed. In short it is very clear from the mortgage transaction at document Exh. 40 that it is a big property and as per the case of the plaintiffs it is mortgaged with possession.

(3.) There is also no dispute about the fact that the mortgagee was given exclusive possession of the mortgaged property with a further right to make reconstruction from foundation after demolition of the part or whole then existing constructions standing on the said plot of mortgaged property. He was also entitled to completely change the identity position of the mortgaged property by spending money without any monetary ceiling on cost of construction. There is a term in the document at Exh. 40 that the mortgagor can redeem only after the expiry of the period of 99 years and that too on making payment of principal amount together with full payment of expenses.