LexPOMAL KANJI GOVINDJI & ORS. versus VRAJLAL KARSANDAS PUROHIT & ORS.
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A POMAL KANJI GOVINDJI & ORS. v. VRAJLAL KARSANDAS PUROHIT & ORS. NOVEMBER 4, 1988 B lSABYASACH1 MUKHARJI AND S. RANGANATHAN, JJ.} c Transfer of Property Act, 1882/Sections 60 and 76-Whether long le.rm mortgages are clog, on equity redeemable at the mortgagor's instance before the stipulated period-Tenants inducted by mortgagee's can be evicted on termination of mortgage. Bombay Rents, Hotel and Lodging House Rates Control Act 1947, Lease created by mortgagee in possession of urban immovable property-Tenancy whether entitled to statutory protection of Rent Act. In the matter giving rise to the Special Leave Petition (Civil) No. D 8219 of 1982 the plaintiffs filed a suit alleging that their father, who dies in the year 1956, had mortgaged the suit property for 30,000 Koris by a registered mortgage deed dated 20th April, 1943, executed in favour of the power of attorney holder and manager of the defandants Nos. I and 2. The defendant No. 3 is the heir of the attorney who was also manag- ing the properties of the defendants Nos. 1 and 2. The mortgage pro- E perty consisted of two delis having residential houses, shops, etc. The mortgagees had inducted tenants in the suit property being defandants Nos. 4 to 9 in the original suit. When the mortgage transaction took place the economic conditioin of the father of the plaintiffs was weak and he was heavily indebted to others. Taking advantage of that situa- tion, the mortgagees took mortgage deed from him on harsh and F oppressive conditions by getting incorporated a long term of 99 years for redemption of mortgage. Though possession was to be handed over to the mortgagees, they took condition for interest on the part of princi- pal amount in the mortgage deed. Moreover, the mortgagees were given liberty to spend any amount they liked· for the improvement ofthe suit property and were also permitted to rebuild the entire property. G . H A registered notice to the defendants Nos. 1 and 2 was given to redeem the mortgage, but they failed to do so, hence, the present suit was filed to redeem the mortgage and to recover actual possession from the defendants Nos. 4 to 9 who were the tenants Inducted by the mortgagees . P OMAL KANJJ v. V.K. PUROHIT 827 Defendant No. 1 resisted the suit alleging that the term ol the mortgage was for 99 years, so the suit filed before the expiry of that period was premature_. The defendant No. 3 resisted the suit by filing the written statement. The defendants Nos. 4 to 9 resisted I.he suit on the grounds that the plaintiffs were not entitled to redeem the mortgage and even if they were so entitled, they could not get actual physical possession from the tenants who were protected by the Bombay Rent Act, because they were inducted by the mortgagees. The Court pro- ceeded against defendants Nos. 2/1 to 2/7 (heirs of mortgagee-defen- dant No. 2) ex-parte, and a preliminary decree for redemption of mort- gage was passed on 2nd April, 1974 by the Trial Court. But this ex·parte ·decree was set aside by the District Court in the appeals filed by the heirs of defendant No. 2 on the ground that summons of the suit had not been duly served upon them. Thereafter defendent No. 2/1 filed his written statement alleging that the suit was bad for non-joinder of the sisters of the plaintiffs as parties. Moreover, as per the terms and conditions of the mortgage deed, there was usufructuary mortgage for 20,000 koris, and the remaining 10,,000 koris were advanced to the mortgagor at monthly interest at the rate of 1/2 per cent. There was a condition in the mortgage deed that the mortgagor would pay principal amount as well as the interest at the time of redemption. When the suit was filed in the year 1972, the mortgagees were entitled to recover interest on 10,000· kori for a period of 29 years, that the total mortgage amount ~long. with interest would come to 47 ,400 koris equivalent to Rs, 15800 and the Civil Judge had no jurisdiction to try such suit; that the court fees was also not sufficient; that it was not true that the father of the plaintiffs was of weak economic condition. The grand father of the plaintiffs was as Advocate and the father of the plaintiffs was the clerk of an Advocate. The plaintiff No. 1 was also working as an Advo- cate at the time of the mortgage, so they knew the legal position; that at the relevant time the prevalent custom in Kotch State was to take mort- gages of long
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