LAKHESWAR PHUKAN AND ORS. Vs. NANDESWAR BURAGOHAIN

JUDGEMENT

(1.) Having lost in both the courts below, the present Second Appeal has been filed by the Defendant. Briefly stated facts are as follows:

(2.) PLAINTIFF , the owner of the suit land, mortgaged it to late Sarbeswar Saikia for a sum of Rs. 1,500/ - on 7.9.65 by executing a registered deed. There was a condition in the deed that the mortgage money will be paid within 2 years. According to the Plaintiff, he approached the mortgagee with the amount after the expiry of the above period of 2 years, But the mortgagee refused to comply, On the other hand on 14.6.71 and 20.1.72 mortgagee sold the land to the Defendant Nos. 12 and 13. Hence, the suit was filed for redemption of the mortgage property against the heirs of Late Sarbeswar and the purchasers of the said namely, Defendant Nos. 12 and 13. Suit has been contested by all the Defendants and the legal heirs of Sarbeswar has denied the allegations regarding offer of the amount by the Plaintiff and according to them the land was mutated in the name of the mortgagee and thereafter it was sold to the Defendants No. 12 and 13. It has been pleaded that the Plaintiff relinquished all the right, title and interest over the suit land and suit is barred by limitation. It has also been alleged that before the land was sold to the Defendant Nos. 11 and 12 the Plaintiff was asked and ho gave consent for the aforesaid sale. Defendant Nos. 11 and 12 have supported the other Defendants and have pleaded that as the land stood in a revenue record In the name of the mortgagee, they purchased the land by the above two registered sale deeds and got their names mutated in the revenue records.

(3.) THE question that needs consideration is whether the above clause of payment of the money is a clog on the equity of redemption and if so whether it is void. The common law principle of the clog on the equity of redemption has been made a statutory provisions by incorporating it in Section 60 in the Transfer of Property Act, 1982. From the various laws laid down by the English Court and also our High Courts and Supreme Court, the provisions has been summarised by learned Author in Lahiri's Book on the Transfer of Property Act, at page 361 (10th Edition) which runs as follows: