Patna High Court
Manik Chand Raut vs Baldeo Chaudhary And Ors. on 21 September, 1949
Equivalent citations: AIR1951PAT327, AIR 1951 PATNA 327
JUDGMENT Ramaswami, J.
1. In the suit out of which this appeal arises the plaintiffs alleged that they had lent a sum of Rs. 700 to defendant l who had to file a suit against Raghunandan Mahto and Mt. Maraohhia with respect to lands described in Schedules 1 and 2 of the plaint. Defendant 1 executed a bond in favour of the plaintiffs by which he mortgaged a portion of these lands, that is, 6 acres 4 decimals of kasht land in villages Chanki and Rutwan. The defendants further agreed that after the disposal of the title suit against Mt. Marachhia and Raghunandan he would execute a deed of sale in favour of the plaintiffs with respect to the lands which had been mortgaged. In case of his not executing the dead of Bale, the mortgagees were given option to get the sale-deed executed through Court. The plaintiffs alleged that defendant 1 obtained a decree in the two suits and secured possession of the properties. As defendant refused to execute the deed of sale the plaintiffs brought the suit for specific performance of the contract. The main ground of defence was that the document was farzi and without consideration; that it had been executed merely in order to create evidence of the possession of defendant 1 over the properties in respect of which the suits had been filed. The learned Munsif held that the document was genuine and for consideration and granted the plaintiffs a decree for specific performance of the contract. The decree has been affirmed by the learned Subordinate Judge in appeal.
2. The main question to be decided in the appeal is whether the stipulation by which defendant 1 bound himself to sell the mortgaged properties was a clog on the equity of redemption and so illegal and void on this account.
3. Under Section 60, T. P. Act, the right of redemption is a statutory right which as Lord Macnaghten said in Noakes v. Rice, 1902 A. C. 24 : (71 L. 3. Ch. 139) is "of the very nature and essence of a mortgage inherent to the thing itself." The right of redemption cannot, therefore, be controlled by any agreement made as part of the transaction of mortgage. In Jarrah Timber and Wood Paving Corporation v. Samuel, (1903) 2 Ch. l at p. 7 Collins, M. R. approved and adopted the following extract from a judgment in Browne v. Ryan, (1901) 2 Ir. Rule 653 :
"It is the right of a mortgagor on redemption, by reason of the very nature of a mortgage, to get back the subject of the mortgage. . . . to hold and enjoy as he was entitled to hold and enjoy it before the mortgage. If he is prevented from doing so, that which he is entitled to on redemption is prevented and to constitute such prevention It is not necessary that the subject of the mortgage should be directly charged with whatever causes the prevention. It he be so prevented in fact, the equity of redemption is affected by what, whether very aptly or not, has been always-termed a clog'. "
4. On behalf of the respondents Mr. P. R. Das conceded that if the document was a mortgage the stipulation as to sale of the properties would be a clog on the equity of redemption and could not be enforced. Learned counsel, however, maintained that upon its proper construction the document was not a mortgage but was a mere contract for sale of the properties mentioned therein. In my opinion this argument is not sustainable. A mortgage is a transfer of an interest in specific immovable property as security for the repayment of a debt. The debt subsists in a mortgage whereas a transaction by which a debt is extinguished is not a mortgage but a sale. In the present case the executant clearly recites that he "with free will borrowed Rs. 700 cash at interest of one rupee per month from Ramkeshar Chaudhury sons of Gati Chaudhury of village Habupore" (Is lie ba khus razai wa raghbai apne mubligh sat sau rupia 700/ sikka raejul waqt qarza sudi basharah fisad ek rupia mahwari musammian Ram Keshar Chaudhuri wald Gati Chaudhury haiulqaem, sakin mauza Habbupur).
The executant proceeded to state :
"in security for the principal amount with interest I martgage 6 acres 4 decimals kasht kayami nagdi total area cash rental situated in village Chanki and village Intwa pergana Sasaram P. S. Karaghar etc. as given in schedules and in condition detailed below" (Wa baitminan wa diljamai zarqarza, asal mai sud, mawazi chhau (6) acre char (4) decimal erazi kasht naqdi qaimi minjumla eraziat kasht naqdi qaimi, mahduda bahadud arbea mofassila zail, waqe mauza Chauki wa mauza Itwan, pargana Sasaram, thana Karghar makful kia).
That date was fixed for payment is clear from the following recital "after the end of the civil suit and after obtaining dahhaldehani the principal amount due and adding the interest thereon will form the consideration and v for that consideration the mortgaged land will be sold by kebala to the mortgagee (Bad infisal moqadma numbari mazkur wa hasul dakhaldehani, asal zarqaiza 'mazkur wa Bud mujtama karke aur usko zarsaman qarar dekar us zarsaman men shai makfula sadar wa mahduda zail ko bazaria tabrir qebala bai lakalam banam dainan mausufan farokht wa bai lakalam kardenge)."
It is of importance to notice that the executant used the words "mortgage" (makful), "mortgaged land" (shai makfula), "mortgagee (dainan) repeatedly in this document. Mr. P. R. Das argued that the executant has not specifically said that the appellant would have right to cause the property to be sold. But a power of sale is very seldom expressly given in a native mofussil mortgage. Any words pledging the property as security for the debt are sufficient to imply a right of sale: vide Rangasami v. Muttukumarappa, 10 Mad. 609, Ponnuranga v. Thandavaraya, 26 I. C. 274: (A. I. B. (2) 1915 Mad. 87Oi; Motiram v. Vital, 13 Bom. 90 (P. B.) and Full Bench case Tukaram v. Ramahand, 26 Bom. 252: (3 Bom. L. E. 778). In Gokuldoss v. Kriparam, 13 Berg. L. E. 205: (3 Sar. 279 P, C.) the Judicial Committee held that the following words sufficed to create a simple mortgage:
"If I fail to pay the money as stipulated, I and my heirs shall without objection cause the settlement of the said village to be made with you."
5. For these reasons it is manifest that in the present ease the document ought to be construed to be a mortgage and not a mere contract for sale of land.
6. It follows that the agreement for sale contained in this document is void and illegal as being a clog on the equity of redemption to which the mortgagor has a statutory right.
7. Accordingly I would set aside the decree of the lower appellate Court and order that the plaintiff should instead be granted a mortgage decree for a sum of us. 700 principal plus a sum of Rs. 700 as interest which the defendants should pay within a period of three months from the date of the preparation of the decree. If the defendants do not pay the amount by that date, the plaintiffs will be entitled to realise the amount by executing the decree. They will be entitled to interest at the rate of 6 per cent, on the amount of Rs. 1400 from the expiry of three months after the date of the decree till the date of realisation.
8. Parties will bear their costs 'throughout.
Manohar Lall, J.
9. I agree. The document can only be construed as a mortgage, all the relevant teems point to that conclusion.