MT SABRATAN Vs. DHANPAT GADARIYA

JUDGEMENT

(1.) This appeal arises out of a suit for redemption instituted by the respondent, Dhanpat Gadariya. The mortgage was made by the respondent's father on 30th October 1905 for a term of sixty years in consideration of Rs. 75. The mortgagee was one Abdullah Weaver, the predecessor in title of the defendants and the terms were as follows: The mortgagee was to be in possession of the premises. The rent of the premises was. taken to be annas 8 p. m. The interest carried by the mortgage money was 2 p.c, p.m. Thus, after deducting 8 annas p. m. as the rent of the house the mortgagor had to pay Re. 1 p.m. at the end of sixty years at the time of the redemption. It was further agreed that the mortgagee would be free to build or rebuild the house and in that case, in the case of redemption, the mortgagor would pay the amount of the money spent over the building or rebuilding with interest at 2 p.c., p.m.

(2.) The plaintiff alleged in the plaint that the mortgage had been made by his father without legal necessity, that the house was ancestral and that therefore he was entitled to redeem the property by removal of the onerous terms. The allegation that the house was ancestral was challenged in the written statement but no issue was framed by the Courts below. The first Court decreed the suit on condition of payment of Rs. 2300. The plaintiff appealed, but in his memorandum of appeal he did not ask the question of the character of the property to be tried. The lower appellate Court came to the conclusion that the redemption should be allowed on payment of Rs. 711 only. It held that the cost of the building was Rs. 300, but as the house was capable of fetching a rent of between Rs. 5 and Rs. 6 per month the interest would be set off against the usufruct and thus only the principal amount of Rs. 300 was to be paid on this head. The learned Counsel for the appellants, that is to say, the mortgagees, has argued that the Courts below were not entitled to interfere with the terms of the contract, and we think he is right. This case leads us to consider the law of mortgage with special reference to what is known as the clog on redemption.

(3.) In England the law of mortgage is essentially different from our law. Cases of mortgage used to come in England under the jurisdiction of the iequity Courts, and the rules of equity apply to the cases of mortgage. Here in India we have got a codified law of mortgage and it would be improper for us in India to ignore the law obtaining in India and to look for the English cases as our guide. Whereour statutory law will not help us, it may. be open to us to look to the j English cases, for rules of equity, justice and good conscience, as laid down by their Lordships of the Privy Council in the case of Waghela Rajsanji V/s. Shekh Masludin [1887] 11 Bom 551, Mehrban Khan V/s. Makhana and Mahomed Raza V/s. Abbas Bandi . In the last mentioned case Section 10, T. P. Act, was applied as embodying a rule of justice, equity and good conscience. It has been held by their Lordships of the Privy Council that the mere fact that the term of redemption is large is no ground for holding that the agreement is bad and should be relieved against: see Bakhtawar Begum V/s. Husaini Khanum A.I.R. 1914 PC 86. The Courts below therefore were wrong in holding that because the term of redemption was sixty years it was a bad stipulation and the plaintiff was entitled to redeem within the term. The defendants however did not appeal and a redemption having been decreed, we have only to see on what terms the redemption should be decreed.