BHULLAN Vs. BACHCHA KUNBI

JUDGEMENT

(1.) This is an appeal arising out of a suit for redemption of a usufructuary mortgage dated 19 January 1898. The plaintiffs are the sons of one of the original mortgagors, and defendant 1 is a transferee from the original mortgagee, having purchased the mortgagee rights on 3 May 1913. The defence was that the suit was premature. The learned Judge in the Court below has held that the suit is premature, and has dismissed it.

(2.) The mortgage deed itself is a peculiar document. The main point in the deed which has been discussed here on appeal is contained in Clause 4, which reads as follows: Should we, the executants, or our heirs wish to get the property redeemed and pay the principal amount in a lump sum after 59 years on Jeth Sudi Puranmashi of the 60 year, then the property shall be redeemed. Should we the executants, or our heirs wish to get the property redeemed within 60 or after 60 years, then the property shall not be redeemed.

(3.) The meaning of this clause clearly is, and it is so admitted by both the appellants and the respondents, that the mortgagors could only redeem the property mortgaged on one day during the 60 year, and if they so failed to redeem the property on the particular day, their right of redemption should be for ever extinguished. It is argued on the part of the appellants that such a condition is void, being contrary to the whole principle of mortgages, in that it amounts to a clog on the equity of redemption. On the other hand, the respondents argue that Secs.60 and 62 (b), T. P. Act, which give the right of redemption, must be construed in accordance with the terms of those sections, and that the strict reading of those sections makes it clear that the doctrine of clog on the equity of redemption which applies in England, does not apply in India where the law of mortgage is regulated by statute.