HIRA SUKHARAM Vs. SITARAM MADHAV GUJAR

JUDGEMENT

(1.) THIS is a second appeal by an unsuccessful plaintiff who, at the close of the year 1920, mortgaged a house with possession to the defendants, who are brothers, for period of 75 years for a sum of Rs. 200.

(2.) SHORTLY after the mortgage was executed, the defendants, who held property adjoining the house in question, pulled down the house and rebuilt it at a cost which had been found to be Rs. 1400. The defendants separated, and the defendant Mangilal, who has been ex parte throughout the proceedings and who indeed, on the plaintiff's admission, has been helping him in this litigation, got into financial difficulties and his part of the divided house was sold in auction. The contesting defendant Sitaram bought the property from the auction-purchaser and is consequently the only person now interested. By the terms of the mortgage-deed Ex.P-1, no interest was to be charged on this sum, and the property was not to be redeemed for 75 years, and the plaintiff agreed to pay the entire sum due at the stipulated time and there was a provision that if it was not paid the property would be foreclosed. The plaintiff also made himself liable for repairs and stated that if he did not get the repairs done the mortgagees might do so and keep an account and he would pay the expenses on the stipulated date.

(3.) IT is now well settled that the length of the term of a mortgage is not in itself a clog on the equity of redemption and that it can only be taken into consideration when any other terms in the contract are unconscionable and such as are likely to defeat ultimately a claim to redeem. A premature redemption is a matter of equity, and a contract which has been entered into and which is enforceable in law can only be avoided by a mortgagor on showing that the terms are unconscionable and devised with the intention of preventing any redemption of the property at all.