SALEH RAJ Vs. CHANDAN MAL

JUDGEMENT

(1.) This is an appeal from an order of a Single Judge of this Court dated 15-101957, remanding the suit to the first Court for trying other issues and then passing a decree for redemption of the mortgaged property.

(2.) Chandan Mal and Pukhraj filed a suit against Saleh Raj and three others in the Court of the Munsiff Jalore, on 18-12-1951, for redemption of the property described in para, 2 (e) of the plaint on payment of an amount of Rs. 269-8-0 in Indian coin. It was alleged by the plaintiffs that their ancestors mortgaged the said property with the aricestors of the defendants in Sambat year 1936 Kartik Badi 3, for an amount of Rs. 430-5-0 Akheshahi equivalent to Rs. 269-80 in Indian coin, by way of possessory mortgage with the stipulation that the mortgage money shall carry no interest and the property shall bear no rent. The plaintiffs prayed that a decree for redemption be passed against the defendants on payment of the mortgage-money. The defendants contested the suit and pleaded that the term of the mortgage being of 99 years and the suit having been filed before the expiry of the said term was premature. They also claimed cost of improvements to the time of Rs. 1,169-8-0 in addition to the mortgage-money. The learned Munsiff dismissed the suit as premature and his judgment dated 23-10-1952 was upheld on appeal by the Civil Judge, Balotra on 23-7-1953. The plaintiffs filed an appeal to this Court. It was heard and decided by a Single Judge as mentioned above. It was observed by the learned Single Judge that the term of 99 years fixed by the mortgage deed was by itself an unreasonable restriction on the right of the plaintiffs to redeem their property. In addition to the term of the mortgage being unreasonable, the learned Judge also observed that the following terms in the mortgage-deed were oppressive and the length of the term, coupled with those conditions, made the said term of 99 years a clog on the equity of redemption.

(3.) In this appeal, the learned counsel for the appellants has referred to a decision of the Supreme Court in Gangadhar v. Shankar Lal, AIR 1958 SC 770, and has argued that their Lordships of the Supreme Court, without expressing any opinion as to whether a long term by itself may be regarded as clog on the equity of redemption held that a term of 85 years, was not unreasonable in the circumstances of that case. It was argued that there is not much difference in the term of 85 years and that of 99 years and it was therefore not proper for the learned Civil Judge to hold that the term of 99 years for redemption of the mortgage was by itself unreasonable. As regards the circumstances mentioned by the learned Single Judge in arriving at the conclusion that the terms of the mortgage were oppressive, the learned counsel stated that the learned Single Judge mis-read the mortgage-deed inasmuch as only one medi and one malia was specified in the mortgage deed to be constructed by the mortgagor and the learned Single Judge erroneously thought that the deed authorised the mortgagee to construct as many medis and maliyas as he chose to make. It was also urged that the plot of land was very small, measuring 16 gaj x 6 gaj -- a gaj is equivalent to 3 feet. As regards the condition for payment of the cost of improvements in accordance with the books of account of the mortgagee, it was urged that the said condition was favourable to the mortgager rather than against him. The mortgagee could not be entitled to claim any cost of improvements unless he showed corresponding entries in his books of ac-count and satisfied the mortgagor that the amounts claimed were actually spent by him. The observations of their Lordships of the Supreme Court regarding payment of cost of improvements as evidenced by the books of account of the mortgagee in Gangadhar's case, AIR 1958 SC 770, were relied upon.