LexSETH GANGA DHAR versus SHANKAR LAL & OTHERS
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
S.C.R. sUPR~M~ COURT R:mPOR'rS 509 SETH GANGA DHAR v. SHANKAR LAL & OTHERS (BHAGWATI, J. L. KAPUR and A. K. SARKAR JJ.) Morlgage-Mortgago-r's right to redeem-:-lnstrument prtJVidittg that mortgage shall not be redeemable for eightyfive years-Term, if a clog' on the equity of redemption-,-Pou·er of Co11.rt-Extent-Appiicc ability-Transfer of Property ACi, I882 (4 of I88z), s. 60. The rule against clogs on the equity of redemption embodied ins. 60 of the Transfe.r1>f Property Act empowers the Court not only to relieve a mortgagor of a bargain whereby in certain circumstances his right to redeem the mortgage. is wholly taken :hvay, b.ut also where that right is restricted. The extent of this latter power is, however, limiteJi by the rea:Son that gave rise to it, namely, the unconscionable rtature of the bargain, which, to a court of equity, would afford sufficient ground for relieving the rnortga~-0r of .his burden, and its exercise must, therefore, depend on whether the bargain, in the facts and circumstances .of aoy particular case, was· one imposed on the mortgagor. by taking advantage of his difficult and impecuni:ous position at the time when he borrowed the money. ' Vermon v. Bethell, (1762) 2 Eden no; 28 E. R. 838 and D, mid C. Kteg!fager v. New Patagonia Meat and Cold Storage Com- pany Ltd .. [1941] A.C. 25, relied on. Santley v. !Yi/de, (1913) L. R. 41 I. A. 84 and Mohatiimad Sher Khan v. Seth Swami Dayal, (1912) L. R. 49 I. A. 60, refer- red to. Consequently'. in a suit for redemption where the mortgage deed, by two distinct and independent terms .provided that (l) the mortgage shall not be redeemed for eightyfive years and (2} that it could be redeemed only after that period and within six months thereafter, failing which the mortgagor would cease to have any claim on the mortgaged property and the mortgage deed would be deemed to be a deed of sale in favour of the mortgagee, and t"t was clearly evident from the facts and circumstances of th.e case that the bargain was quite fair and one as between parties deali'ng with each other on an equal footing: Htld, that the term providing for a period of l;lightyfive ye'ai'S W.ls not a clog on the equity of redemption and the tnere length af the period could not by itself. lead to an inference tha.t the bar- gain was in.any way oppress:ve or unreasonable. The term was enfotceablE'. in law and the suit for redemption filed before the ·expiry.of the period was pretnature. Held', further, that the term that .on th.e failure of the mort· 'iag-0t ta Eedeem within the specified periocl o! ·six manths; ll'e o~ . • April z5. Seth Ganga Dhar v. Shankar Lal 0- Others Stirkar ]. 510 StJPR1ilME1 COtJR'r RlilPOR'rS tt959] would lose his right to do so and the mortgage deed was to be deemed to be a deed cif sale in favour o the mortgagee, was clearly a clog on the equity of redemption and as such invalid but its invalidity could not in any way affect the validity of the other term as to the period of the mortgage, that stood clearly apart. C1v1L APPELLATE JuRISDIOTION: C'ivil Appeal No. 150 of 1954. • Appeal from the judgment and decree dated March 21, 1950, of the Court of Judicial Commissioner at Ajmer in Civil First Appeal No. 13 of 1948, arising out of the judgment and decree dated March 30, 1948, of the Court of Sub-Judge. 1st .Class, Ajmer, in Civil Suit No. 1 of 1947. · Tarachand Brijmohan Lal, for the appellant. S.S. Deedwania and K. L. Mehta, for the respon- dents. 1958. April 15. The Judgment of the. Court was deliver0d by SARKAR J.-This appeal arises out of a suit for the redemption of a mortgage dated August 1, 1899. The property mortgaged was a four-roomed shop with certain appurtenances, standing on a piece of I.and measuring 5 yards by 15 yards in Kaya Bazar, Ajmere. The mortgage was created by Purshottamdas who is now dead and was in favour of Dhanrupmal, a res, pondent in this appeal. The mortgage instrument stated that the property had been usufructuarily mortgaged in lieu of Rs. 6,300 of which Rs. 5,750 had been left with. the mortgagee to redeem a prior mort. gage on the same and another property. It also pro- vid,ed that on redemption of the prior mortgage, the possession of the shop would be taken over and retain- ed by the Illortgagee, Dhanrupmal, who would appro- priate its rent in lieu of interest on the money ad vane·-·• ed by him and the possession of the other pr
Excerpt shown. Read the full judgment & AI analysis in Lexace.