GENU TUKARAM TAPKIR Vs. NARAYAN RAGHU TAMHANE

JUDGEMENT

(1.) This is a case of some interest, partly because it is unusual itself, and partly because it has followed a somewhat surprising course. The plaintiff is a mortgagor and seeks to redeem. The mortgage is one of a very early date about 1867 or 1868, and it provides that the mortgagor was to receive Rs. 900; and that the mortgaged property was to be placed in the possession of the mortgagee who was to enjoy the land and trees. But it was evidently contemplated that the mortgagee should develop the land in some way, probably by planting fruit trees. The mortgage provided that redemption should not take place until after twenty-one years, and that if the mortgage was not redeemed then the mortgagee was to continue to enjoy the land and to take the profits in lieu of interest. The deed also provided that if the mortgagee should, at some future time, after the expiration of the twenty-one years when the mortgagor sought to redeem, have planted trees, or something of that kind described in the deed as Udim which were bearing fruit, the mortgagee should not be required to give up possession until this Udim had come to an end; though meantime he should pay to the mortgagor the customary Khand. There were other detailed provisions in the document, which, I think, I need not set out, because what I have said gives a general idea of the main features of the document.

(2.) The twenty-one years must have come to an end about 1888 or 1889. It was not, however, until 1913 that the mortgagor s successors brought this suit for redemption, and it is found, indeed it is admitted by both sides, that at that time there were fruit-bearing trees, and they are still there, which had been put down by the defendant. The Courts below were naturally a good deal exercised as to how redemption could, or on what terms it should, be permitted in those circumstances.

(3.) The trial Court came to the conclusion that the stipulation about the mortgagee continuing in possession, if there were fruit trees on the land, was a clog on the equity of redemption, and need not, and could not, therefore, bind the mortgagor. He made an order that defendant No. 2 should continue in possession for three years, i. e., till the end of 1917, at the expiry of which period the land mortgaged should be restored to the mortgagor free from all incumbrances.