BHIMRAO NAGOJIRAO PATANKAR Vs. SAKHARAM SABAJI KANTAK

JUDGEMENT

(1.) The plaintiff sued to redeem and recover possession of the plaint land which was mortgaged by his grandfather to the defendant's ancestor by a mortgage dated 17 March 1859. The plaintiff admits that at the same time as the mortgage another document was executed purporting to lease the land to the mortgagee on a permanent tenure on condition that the lessee paid a fixed rent of Us. 70. The defendant pleaded that he was a mortgagee not of the land in suit, but merely of the fixed rent payable to plaintiff as his landlord, he being Mirasdar of the land of long standing.

(2.) Both the lower Courts have decided on that point in favour of the defendant and have passed a preliminary decree to the enact that if the plaintiff pays into Court Rs. 1501 (there is a misprint right through in the print "150" for "1501") within six months from the date of the decree, the plaintiff should be entitled to claim payment of the annual rent of Rs. 70 year by year from the defendant.

(3.) The question is what is the true effect to be given to the documents, Exhibits 45 and 46, which were executed at the same time on the 17 March 1859. No doubt if we look merely at what is stated in those documents, the mortgagor first purported to lease to the mortgagee the suit land at an annual rent of Rs. 70 on Mirasi tenure. Then by Exhibit 4 the purported to mortgage, not the land, but the annual rent which was secured by Exhibit 45. Before these documents were executed the mortgagor was the owner of the land, and as we read the documents, their real effect was that the mortgagee got the land as security for the loan, and at the same time obtained a contract from the mortgagor that he, the mortgagee, should be a permanent tenant of the land paying an yearly rent of Rs. 70. The mortgagee, therefore, obtained a contract whereby the mortgagor lost the right to get back his property on repaying the loan, so that it must be admitted that that contract constituted a clog on the equity of redemption. If the mortgagee had got a contract for the sale of the land, undoubtedly a Court of Equity would not allow him to take advantage of that contract (see Samuel V/s. Jarrah Timber and Wood Paving Corporation. [1904] A.C. 323. It seems to us there is very little difference between a contract by the mortgagee to buy the mortgaged premises out and out for a consideration, and a contract by a mortgagee to take the premises on a permanent tenure at a fixed rent, which in effect makes him the owner of the premises, the consideration being satisfied by deferred payments.