SARJU RAM BARANAWAR Vs. TAJI BIBI

JUDGEMENT

(1.) I agree with my brother Ramabhadran that the stipulations in the mortgage deed that the mortgage could not the redeemed for forty-nine years, that the mortgagees were entitled to rebuild the house and repair it and recover the costs from the mortgagors with interest at the high rate of 24 per cent per month along with the principal money and that they were entitled to recover from the mortgagors the taxes along with the principal money with interest at the same high rate amounted to a clog on the equity of redemption. There was no limit to the amount which the mortgagees could spend on rebuilding the house and the taxes were to be paid by them and the mortgagors were not allowed to pay the taxes or to compensate them at once. There is no doubt that these stipulations taken together made it practically impossible for the mortgage to be redeemed. The amount of the principal was only Rs. 334/- and making the mortgagors liable to pay a huge sum, out of all proportion to the principal, for redemption of the mortgage was tantamount to refusing them the right of redemption.

(2.) It may be that either the stipulation, that the mortgage could not be redeemed for 49 years, or the stipulation that the cost of rebuilding the house and the taxes will be recovered along with the principal after 49 years together with interest thereon at 24 per cent. per annum might not by itself amount to a clog on the equity of redemption. There are authorities laying down that the mere length of the period during which no redemption is allowed does not amount to a clog on the equity of redemption. Even if the rate of interest is very high, if the mortgagors are permitted to compensate the mortgagees for the cost of rebuilding the house and for the payment of the taxes at any time there may be no clog on the equity of redemption. The question arises how to give relief to the mortgagors when the two stipulations taken together amount to a clog but if taken individually they would not. After the Court holds that the stipulations taken together amount to a clog, it may relieve the mortgagors from the stipulation about the mortgage not being redeemable for 49 years or may relieve them from the stipulation that the mortgagees are entitled to rebuild the house and pay the taxes arid recover the costs and the taxes at the time of redemption with interest, or may relieve them from both the stipulations. It would not be fair and just to relieve them of both the stipulations and if relieving them from either of the stipulations would remove the clog on the equity of redemption, they are entitled to be relieved only from one relief or the other but not both. As regards the choice of the stipulations from which they should be relieved, it would be just to relieve them from the first stipulation about the period of redemption. The mortgagees should have no choice in the matter; the choice should be of the mortgagors and they have chosen to be relieved from the first stipulation by suing for redemption within 49 years. If they are allowed to redeem the mortgage at any time the second stipulation will not be found to be a clog on the equity of redemption, especially when the mortgagors are allowed the benefit of the Usurious Loans Act.

(3.) In the result the mortgagors should be allowed to redeem the mortgage in spite of the stipulation in the mortgage deed that it cannot be redeemed within 49 years. The case should be remanded and the trial court will consider to what extent the mortgagors are entitled to the benefit of the Usurious Loans Act.