VADILAL CHHAGANLAL SONI Vs. GOKALDAS MANSUKH

JUDGEMENT

(1.) This is an appeal by the mortgagees against the preliminary decree for redemption which has been passed by both the Courts below. The property in suit is an open plot bearing Tikka No. 17, Lot No. 11, measuring 34 sq. yds. It was mortgaged on 9-11-1384, for Rs. 176, The agreement between the parties was that the mortgagor was to redeem the mortgage 99 years after its execution and the mortgagee was given full authority to build any structure on this plot after spending any amount he liked. The mortgagor undertook to repay this amount to the mortgagee at the time of redemption. When the suit was filed by the plaintiffs to redeem this mortgage, the mortgagee pleaded that the claim was premature; 99 years had not still passed and so the amount under the mortgage could not be said to have become due within the meaning of Section 60, T. P. Act. This was the contention of the mortgagee. The Courts below have held that the two material stipulations in the mortgage amounted to a clog on the equity of redemption and so they have allowed the plaintiffs to redeem the mortgage and passed a preliminary decree in that behalf. In this appeal Mr. Patel has contended that the Courts below should have held that the suit was premature.

(2.) The first argument which has been urged before us by Mr. Patel is that the doctrine of the clog on the equity of redemption is inapplicable in India. Mr. Fatel says that the right to redeem which vests in the mortgagor is the result of a statutory provision contained in Section 60, T. P. Act, and in dealing with the exercise of this right Indian Courts must confine themselves to the consideration of the said section. A mortgage under the T. P. Act is the result of a contract between the mortgagor and the mortgagee and all the stipulations contained in this contract would bind the parties, unless they are shown to be contrary to any provisions of the law. Mr. Patel concedes that if the contract of mortgage is the result of undue influence, coercion, misrepresentation or fraud, it may not bind the mortgagor and the terms of such a mortgage could be challenged by him. But if the terms of the mortgage are otherwise not inconsistent with any of the provisions of the Contract Act or the T. P. Act, they must be enforced between the parties. The term as to when the amount due under the mortgage should be paid has been settled between the parties, and since they have agreed that the dug date would arrive after the lapse of 93 yeans, it is not open to the mortgagor to tender the amount before the due date. In other words, the terms of the mortgage in suit are otherwise perfectly valid and it is not open to the mortgagor to rely upon the doctrine of the clog on the equity of redemption to avoid the performance of these terms. That is the first contention raised by Mr. Patel before us.

(3.) It is true that in dealing with the provisions of Indian law it is not always safe to rely upon doctrines of English law, and if there is any provision in Section 60 which is inconsistent with the doctrine as to the clog, it would not be open to us to invoke that doctrine in dealing with mortgages executed under the T. P. Act. But the doctrine of the clog on the equity of redemption is applied as a rule of justice, equity and good conscience, and in a sense it is consistent with the provisions of Section 60 itself. The words "in the absence of a contract to the contrary" which are used in some of the sections of the T. P. Act are absent in Section 60. So that it is legitimate to infer that if an agreement is mads between the mortgagor and the mortgagee which obstructs, hampers or fetters the mortgagor's right to redeem, it would be invalid. The principle that "once a mortgage always a mortgage" is well established, and it brings out emphatically the mortgagor's right to redeem which must always remain unimpaired. This right can be extinguished only by an act of parties or by operation of law. The act of parties must obviously be subsequent to the execution of the mortgage and its effect must clearly be to extinguish the equity of redemption. The rule as to the clog has been thus expressed by Lord Davey in -- Noakes & Co., Ltd. v. Kice', (1902) AC 24 at p. 33 (A): "....The meaning of that is that the mortgagee shall not make any stipulation which will prevent a mortgagor, who has paid principal, interest, and costs, from getting back his mortgaged property in the condition in which he parted with it." By this rule the mortgagee is prevented from stipulating for a collateral advantage which is unfair to the mortgagor or from imposing any other terms which would act as a fetter on his right to redeem. This doctrine has no doubt been criticised by some Jurists. Dr. Ghose in his "The Law of Mortgage in India" Edn. 4 observes (p. 218): " ....Many lawyers will be inclined to agree with Sir Frederick Pollock that the doctrine of 'clogging', though useful enough in a primitive age when ignorant people were often entrapped into oppressive bargains, is an anachronism in our day." According to Dr. Ghose, in enforcing this doctrine Courts virtually exercise (p. 222) "....a paternal jurisdiction which is an anomaly in a system which, permits every adult person who is not a lunatic to ruin or to make a fool of himself and can end only in much straining at gnats and swallowing of camels." Even so, there is no doubt that this doctrine has been applied by Indian Courts for nearly a century and it has now become virtually a part of the law of mortgages. It must be conceded that in applying this doctrine care must be taken not to apply the English precedents without scrutiny: be-cause it is clear that the Question as to what amounts to a clog on the equity of redemption would always be a question of fact. But, in our opinion, it is too late now to contend that the doctrine of the clog on redemption itself is inapplicable in India. We may at this stage conveniently refer to two decisions of the Privy Council in which this doctrine has been applied to Indian mortgages in support of our conclusion that this doctrine can and ought to be invoked for the protection of the mortgagor in a proper case.