SUNDAR SINGH Vs. LACHHMAN SINGH

JUDGEMENT

(1.) This is an appeal from the decree of a Subordinate Judge of Gurdaspur dismissing the plaintiff's suit for possession by redemption of 52 kanals and 13 marlas of land situate in the village of Jaura Singha in Batala Tahsil in the district of Gurdaspur.

(2.) The suit land belonged to one Ishar Das son of Jawahar Singh who mortgaged the same with possession to Lachhman Singh defendant 1, for a sum of Rs. 5,096 by means of mortgage deed dated 28 July 1920. This mortgage deed is Ex. D-1 and is printed at page 79 of the paper book. According to the terms of mortgage deed, the mortgagee was to receive a sum of Rs. 400 per annum as interest in addition to the rents and profits of the land mortgaged and the mortgagor was to have no right to redeem the mortgage for a period, of forty years. Lachhman Singh mortgagee sold one-half share of his mortgagee rights to Ghamanda Singh, defendant 2, and 1/3 of these rights to TJdham Singh and Balwant Singh, defendants 3 and 4. Ishar Das mortgagor died without Jeaving any child or widow and was, succeeded by Devi Das, defendant 5. On 21 February 1943 the aforesaid Devi Das mortgaged. with possession the land in dispute with the plaintiff for a sum of Rs. 7,800. Out of the consideration for this mortgage a sum of Rs. 7,800 was left with the plaintiff for redemption of the mortgage effected by Ishar Das in 1920. After making an unsuccessful application to the Collector for redemption of the suit land under the Redemption of Mortgages Act the plaintiff, on 17 November 1943, brought the suit which has given rise to the present appeal. The suit was resisted by defendants 1 to 4 inter alia on the plea that the plaintiff could not redeem the mortgage before the expiration of the stipulated period of forty years. The plaintiff alleged that the stipulation postponing redemption of the mortgage for a period of forty years was in the nature of a clog on the equity of redemption and was not therefore enforceable. This allegation of the plaintiff was met with the plea that he being merely a mortgagee from the representative-in-interest of the original mortgagor and having taken his mortgage with full knowledge of the stipulation postponing redemption, could not, under the law, be permitted to plead that the stipulation was in the nature of a clog on the right of redemption and was not therefore enforceable. On the pleadings of the parties, to learned trial Judge framed the following issues: (1) Was the mortgage deed Ex. P-1 executed without consideration? (2) Was defendant 5 under the influence of liquor when he executed the mortgage deed Ex. P. 1, if so what was its effect ? (3) Did defendant 5 validly mortgage the land in suit in favour of the plaintiff? (4) If issue No. 3 be proved then has not the plaintiff loons standi to plead that the conditions fixing the period for redemption and for payment of interest in the mortgage Ex. D-1 were void? (5) Could not the plaintiff challenge the said conditions on account of the law of limitation? (6) If issues Nos. 4 and 5 be not proved then were, the said conditions void as being a clog on the equity of redemdtion? (7) Relief?

(3.) The first three issues were decided by the learned Judge in the plaintiff's favour. The fourth issue was, however, decided against him, it being held that he being merely a mortgagee of the interest, pf defandant 5 could not object to the validity of the conditions postponing redemption for a period of forty years and imposing on the mortgagor the liability to pay interest at the rate of Rs. 400 per annum in addition to the rents and profits of the mortgaged property. The fifth issue was decided in the plaintiff's favour. No decision was given on the sixth issue. In view of the decision on the fourth issue the plaintiff's suit was dismissed as premature and incompetent. The plaintiff has come up in appeal to this Court.