SARJUG MAHTO Vs. DEVRUP DEVI

JUDGEMENT

(1.) The only question involved in this appeal is whether the term of ninetynine years in the usufructuary mortgage bond in suit amounts to a clog on the equity of redemption. Girdhari Mahto, defendant-respondent second party, executed the bond in suit on the 28th August 1939 in respect of a certain area of land in1 favour of the defendants first party, the appellants in this Court, for a sum of Rs. 211 only. The bond was taken in the name of Ramfula Kuer, wife of defendant No. 3; and the mortgagees were put in possession of the mortgaged property. The term of the bond was for ninetynine years and, therefore, the due date for redemption was some time in 1435 Fasli. The mortgagor sold the mortgaged land along with other lands to the plaintiffs-respondents first party under a sale deed dated the 8th November 1949 on the allegation that the term of the mortgage was only nine years. The plaintiffs deposited the mortgaged dues, that is, Rs. 211, under section 83 of the Transfer of Property Act to the credit of the mortgagees, who filed an objection in the proceeding arising out of the deposit. Hence, the suit for redemption. The plaintiffs alleged that the period of ninetynine years was entered in the bond without the knowledge of the mortgagor and in collusion with the scribe and witnesses; and that such a long period amounted to a cog on the equity of redemption. The mortgagor-defendant supported him. On the other hand, the present appellants asserted that the term was for ninetynine years and that there was no fraud committed in the recitals of the bond which were read out and explained to the mortgagor before execution of the document. It was also alleged that the mortgage bond was really a sale deed; and as in 1929 there was no custom to execute a sale deed without the consent of the landlord, the bond in suit was executed.

(2.) The learned Munsif found that there was no fraud or collusion in respect of the recitals in the bond and that the term Was for ninetynine years. He further found that the document was a mortgage bond and not a sale deed; but he dismissed the suit on the ground that, inasmuch as there was no oppressive or onerous term in the mortgage bond, the long period of ninetynine years could not be considered as a clog on the equity of redemption and that the deposit by the plaintiffs was premature. The plaintiffs went up in appeal before the District Judge; and an Additional Subordinate Judge, who heard the appeal, agreed with the trial Judge in respect of the findings of fact. The learned Subordinate Judge held that, inasmuch as the mortgagees had claimed to be vendees of the mortgaged land under the bond in suit, the period of ninelynine years amounted to a clog on the equity of redemption. The appeal was accordingly allowed; and a decree for redemption was passed. The mortgagees have, therefore, come up in appeal to this Court.

(3.) Scticn 60 of the Transfer of Property Act, which gives the mortgagor the right of redemption, as far as is relevant for the purpose of the present appeal, runs as follows: