MANIK CHAND RAUT Vs. BALDEO CHAUDHARY

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiffs alleged that they had lent a sum of Rs. 700 to defendant l who had to file a suit against Raghunandan Mahto and Mt. Maraohhia with respect to lands described in Schedules 1 and 2 of the plaint. Defendant 1 executed a bond in favour of the plaintiffs by which he mortgaged a portion of these lands, that is, 6 acres 4 decimals of kasht land in villages Chanki and Rutwan. The defendants further agreed that after the disposal of the title suit against Mt. Marachhia and Raghunandan he would execute a deed of sale in favour of the plaintiffs with respect to the lands which had been mortgaged. In case of his not executing the dead of Bale, the mortgagees were given option to get the sale-deed executed through Court. The plaintiffs alleged that defendant 1 obtained a decree in the two suits and secured possession of the properties. As defendant refused to execute the deed of sale the plaintiffs brought the suit for specific performance of the contract. The main ground of defence was that the document was farzi and without consideration; that it had been executed merely in order to create evidence of the possession of defendant 1 over the properties in respect of which the suits had been filed. The learned Munsif held that the document was genuine and for consideration and granted the plaintiffs a decree for specific performance of the contract. The decree has been affirmed by the learned Subordinate Judge in appeal.

(2.) The main question to be decided in the appeal is whether the stipulation by which defendant 1 bound himself to sell the mortgaged properties was a clog on the equity of redemption and so illegal and void on this account.

(3.) Under Section 60, T. P. Act, the right of redemption is a statutory right which as Lord Macnaghten said in Noakes v. Rice, 1902 A. C. 24 : (71 L. 3. Ch. 139) is "of the very nature and essence of a mortgage inherent to the thing itself." The right of redemption cannot, therefore, be controlled by any agreement made as part of the transaction of mortgage. In Jarrah Timber and Wood Paving Corporation v. Samuel, (1903) 2 Ch. l at p. 7 Collins, M. R. approved and adopted the following extract from a judgment in Browne v. Ryan, (1901) 2 Ir. Rule 653 :