MURARILAL versus DEV KARAN

Citation: [1964] 8 S.C.R. 239 · Decided: 08-05-1964 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

s s .. c.R. 
SUPREME COURT REPORTS 
239 
.Partnership Act, therefore, does not apply to him. He is 
not a partner of the finn and, therefore, he cannot 
be 
ad\uruca£ed insolvent for the acts of insolvency committed by 
respondents 2 and 3, ithe partners of the finn. 
The order 
of the High Court is correct. 
In the result, the appeal fails and is dismissed with costs. 
\ 
Appeal dismissed. 
MURARILAL 
v. 
DEV KARAN 
(P. B. GAJENDRAGADKAR, C.J., M. HIDAYATULLAH, K. c. 
DAS GUPTA, J. c. SHAH AND RAGHUBAR DAYAL, JJ.) 
Jlortgage-Clog on equity of rtdemption-Enforcet~bility-Principk tJ/ 
Justice, equity and good conscience-A.pplication-Power of Coun. 
The respoodent sought to redeem a mortgage e~etuted in the Sta~ 
of Alwar in 1919. By a stipulation in the mortgage deed the mortgagor 
aareed that if the debt was not paid within l.S years the mortgagee would 
become the owner of the property. The respondent's case was that the 
transaction was a mortgage and that he could redeem the mortgage 
even though the stipulated period was over. The appellant resisted the 
auit on the ground that the transaction amounted to a sale and not a 
mortgage. The trial Judge dismissed the suit holding that the claim 
for redemption was not maintainable after the expiry of the stipulated 
period. The Rajasthan High Court on appeal reversed the decision of 
the trial Judge holding that the stipulation was a clog on the equity 
of redemption and remanded the suit. The stipulation in question was 
u follows,-
.. After the expiry of the stipulated penod of lS yean this shop 
would be deemed as an absolute transfer 'Mala Kalam' for 
this amount. Till the mortgage money is paid, I shall have 
no concern with the shop ... 
Held: If the stipulation were to prevail, the use of the words 'mala 
llllamt, which meant that there would be no scope for the mortgagor 
to say anything, W<'uld indicate that the mortgagee became the absolute 
owner of the property. 
But the stipulation, which was undoubtedly a clog on the equity 
ol redemption, must fail and the suit for redemption must succ:eed. 
1964 
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1964 
Murarilal 
v. 
Dev Kar« 
SUPREME COURT REPORTS 
[1g64] 
The equitable principle of justice, equity and good conscience, Jon1 
and consist~ntly applied by Civil Courts in Inoia, could be applied in 
the State of Alwar even though the Transfer of Property Act had no 
application there at the time when the mortgage document was executed 
or its period expired. The strict provisions of the texts of Hindu Law 
in this regard wouJd be of no avail. 
Namdeo Lokman Lodhi v. Narmadabai, [1953} S.C.R. 1009, applied. 
Pattabhiramier v. Vencutarow Naicken and Narasimha Naicken,. 
(1870) 13 M.I.A. 560 and Thumbusaway Moodelly v. Hossain Rowthen, 
I.L.R. 1 Mad. 1. cons:dered. 
V ~nkata Reddy v. Pai'Vati A.mmal. 1 Mad. H.C. Rep. 460, Ramii bin 
Tukaram v. Chinto Sakharam, 1 Born. H.C. Rep. 199 (1864), Bapuji 
A.paji v. Senavaraji Marvadi, l.L.R. II Bom. 231, Ramasami Sastrigal Y. 
Samiyappanayakan, I.L.R. 4 Mad. 179, Amba Lal v. Amba Lal, l.L.R. 
1957 Raj. 964, Seleh Raj v. Chandan Mal, I.L.R. 1960 Raj. 88 aDd 
N«inu Y. Kishan Singh, A.I.R. 1957 H.P. 46, referred to. 
CIVIL APPELLATE JURISDICTioN: Civil Appeal No. 484 
of 1961. 
Appeal· by special leave from the judgment and decree 
dated Ma.:~h 28, 1958 of the Rajasthan High Court (Jaipur 
Bench) at Ja.ipur in D. B. Civil First Appeal No. 64 of 
1951. 
Sarjoo Prasad and Harbans Singh, for the appellants. 
B. P. Sinha and Naunit Lal, for the respondents. 
1fay 8, 1964. 
The Judgm~nt of the Court was deliver-
ed by 
GAJENDRAGADKAR, C.J. This appeal by special leave 
arises out of a redemption suit filed by the respondent Dev 
Karan against the appellant Murarilal. The mortgage 
sought to be redeemed was executed on the 
19th March, 
1919 for a sum of Rs. 6,500. 
The mortgaged property 
con~.isted of a shop which was 
delivered 
over in the 
po~session of the mortgagee after the execution of the mort-
gage deed. 
The mortg.~ge deed had provided that the 
amount due under the mortgage should be repaid to the 
mortgagee within 15 years, whereupon the property would 
be redeemed. It had also stipulated that if the payment 
was not made within 15 years, the mortgagee would become 
the owner of the property. The mortgagor was Man gal 
S S.C.R 
SUPREME COURT REPORTS 
Ram who died and the respondent claims to be the heir ·and 
legal representative of the said de

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