RAJMAL MOTIRAM Vs. SHIVAJI ANANDRAV

JUDGEMENT

(1.) Then it is argued that as the two later bonds passed in favour of the mortgagees provided that the amount due on the mortgages could not be paid off in redemption of the property, without also paying that which was due on those bonds, the lower Appellate Court should have awarded redemption only on those terms. The subsequent bonds are not registered, and it is conceded that they do not create any charge on the land; but it is said that notwithstanding this warrant for the appellants contention is to be found in Hari Mahadaji V/s. Balambhat (1884) 9 Bom. 233. The lower Appellate Court, however, is not satisfied that there is anything due on the bonds, and so we are not under the necessity of considering whether the cited decision involves a violation of the principle that an equity of redemption cannot be clogged. The meaning of that rule has been recently expounded in Noakes & Co. V/s. Bice (1902) A.C. 24 by Lord Davey, who, dealing with the doctrine that a provision or stipulation which will have the effect of clogging or fettering the equity of redemption is void, says it might be expressed in this form: "Once a mortgage always a mortgage and nothing but a mortgage, "and then continues: "The meaning of that is, that the mortgagee shall not make any stipulation which will prevent a mortgagor, who has paid principal, interest and costs, from getting back his mortgaged property in the condition in which he parted with it." We have merely referred to this aspect of the case in order that it may not be supposed that we accept the view which is said to have found favour in Hari Mahadaji's case (1884) 9 Bom. 233.

(2.) The last point urged is that the lower Appellate Court improperly cast upon the mortgagees the burden of proving as to the amount of the sum advanced on the occasion of the mortgage. We think it acted quite within its right when regard is had to Section 12 of the Dekkhan Agriculturists Relief Act.

(3.) Decree confirmed with costs.