RAM PRASAD Vs. JAGRUP

JUDGEMENT

(1.) THE plaintiff s, father on the 19th of July 1899, executed a mortgage with possession in favour of Jagrup. One of the terms of the mortgage was that the mortgagor would not be entitled to redeem for 58 years. THE mortgagor s son brought an action on the 9th of August 1910 for redemption of the mortgage. In paragraph 5 of his plaint, he stated as follows: "THE defendant has cunningly, fraudulently and. dishonestly got the period of mortgage enter-ed as 58 years in the deed of mortgage sought to be redeemed, which is most prejudicial and improper and is legally and equitably null and void". THE fraud which the plaintiff attempted to prove was that a long term was entered in the mortgage-deed without the knowledge and consent of the mortgagor. THE Court of first instance dismissed the plaintiff s suit on the ground that there was non-joinder of parties and that the fraud alleged by the plaintiff was not proved. THE lower Appellate Court affirmed the dismissal. In second appeal, it is urged that such a long period as was agreed upon in this case is unconscionable and hard and should, therefore, be set aside and in support of this contention reliance is placed upon Morgan v. Jeffreys (1910) 1 Ch. D. 620 : 74 J.P. 154 : 26 T.L.R. 324 : 79 L.J.Ch. 360, in which a term of 28 years was regarded as unreasonable. THE learned Vakil for the appellant also relies upon Bhawani v. Sheodihal 26 A. 479 : A.W.N. (1904) 60 : 1 A.L.J. 133. We are unable to accept the contention raised on behalf of the appellant. THE learned Judges, who decided Sped Abdul Hah v. Ghulam Jilani 20 B. 677, quote from a Printed Judgment in Ganesh v. Prahbakar S.A. No. 191 of 1893, decided on August the 12th, 1895: "THE terms (35 years) may or may not have been hard, they were agreed to by adults, and there is neither allegation in the plaint nor proof in the cause that any undue advantage was taken." In the case before us, there was an allegation of fraud which has been held by the Courts below not to have been proved, and, therefore, the remarks made by the learned Judges fully apply to this case, and we see no reason to set aside the decrees of the Courts below, especially taking into account the fact that the period of limitation for redemption in this country is 60 years while in England it is only 12 years, THE parties to the mortgage, without any duress or undue influence, came to that agreement, and, therefore, they cannot be allowed to go behind its terms. ft was, however, contended that the recitals in the mortgage deed show that the mortgagor was a debtor of the mortgagee, and that, therefore, the latter took advantage of the helpless condition of the former and made him accept a very hard bargain. No such case was alleged by the plaintiff in his plaint, and at this stage of the litigation, we are not inclined to allow him to make a new case.

(2.) A fraud only was alleged but not proved. For these reasons, we uphold the decree of the lower Appellate Court and dismiss the appeal with costs including fees in this Court on the higher scale. As the suit is premature, it is unnecessary for us to pronounce any opinion on the question of non-joinder.