SUKHRAJ Vs. RAM BALI

JUDGEMENT

(1.) THE question that falls for determination in this appeal is whe ther the plaintiff-appellant's suit for redemp tion of the usufructuary mortgage was pre mature having been filed before the expiry of the period of sixty years against the sti pulation in the mortgage deed that the mort gagor will not redeem the mortgage till the expiry of that period. The two courts below have differed on this crucial question. The trial Court held that the term in the mort gage deed preventing the mortgagor from redeeming the mortgage before the expiry of sixty years when considered along with other circumstances amounted to a clog on the equity of redemption and was not bind ing, hence the plaintiff's suit was not pre mature. The lower appellate Court took the contrary view and held that the term in the mortgage deed to the effect that the mort gagor will not have the right to redeem the mortgage before the expiry of sixty years Was not a clog on the equity of redemption in the circumstances of the case and the plaintiff's suit was premature.

(2.) ON 6-2-1920 Smt. Butki executed a usufructuary mortgage in favour of Thakur Prasad of her small house consisting of a room, a verandah and a court-yard. The mortgage deed which is registered as Ext. A-l on record. The material recitals of the deed may be stated for convenience. The loan advanced by the mortgagee to the mortgagor was Rs. 70/-. The necessity for the loan as recited in the deed was that Soman, the mortgagor's son, had incurred a loan to meet the expenses in respect of the funeral rites of the mortgagor's husband and since Soman himself had died, the res ponsibility of payment of that loan fell on the mortgagor. She had no choice but to mortgage her immovable property to secure the necessary loan of Rs. 70/-. The terms of the mortgage were (1) The mortgagee shall retain the possession of the mortgaged house and enjoy its usufruct during the mortgage period. Neither the mortgagor will claim any rent from the mortgagee in res pect of the said house nor the mortgagee will claim any interest on the money ad vanced, (2) The responsibility for keeping the mortgaged house in good repairs would be that of the mortgagee, who will also have the right, if he so wished, to demolish the structure and reconstruct the house afresh according to his choice, (3) The mortgagee shall keep a memorandum of accounts of the annual repairs and of constructions, (4) When after the expiry of 60 years the mort gagor desired to redeem the mortgage, she will pay the principal amount advanced along with all the expenses incurred for the repairs and constructions of the house as recorded hi the memorandum with 2 per cent per mensem interest and (5) The mort gagor or her successors will have no right to redeem the mortgage within the period of sixty years fixed under the terms of the mortgage.

(3.) THE main plea raised by the de fendants in defending the suit was that none of the terms of the mortgage, in the cir cumstances it was executed, amounted to a clog on the equity of redemption. The plaintiff being bound by the terms, the suit Was premature.