Pomal Kanji Govindji v. Vrajlal Karsandas Purohit, AIR 1989 SC 436 : (1989) 1 SCC 458

POMAL KANJI GOVINDJI V. VRAJLAL KARSANDAS PUROHIT

ISSUE:

Whether the terms and conditions in the mortgage deed dated 20.4.1943 amount to clog on the equity of redemption?
Whether the decree passed is bad for want of jurisdiction with trial court?
Whether the mortgagees are entitled to get interest on 10,000 koris?

RULE:

The rights and liabilities of the mortgagor are controlled by the provisions of section 60 of the Transfer of Property Act, 1882.

FACTS:

The plaintiff had filed a suit alleging that the deceased Karsandaswas their father andhe died in the year 1956, he had mortgaged the suit property to Kansara for 30,000 koris by a registered mortgage deed dated 20-4-1943.
Koriis a currency in the Kutch area it was in use till 1948.The koriwas replaced by Indian rupee.
When the mortgage transaction took place, the economic condition of the father of the plaintiffs was weak, he was heavily indebted to other persons.
Taking advantage of that situation, the mortgagees took mortgage deed from him on harsh and 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 principal amount in the mortgage deed. Moreover, the mortgagees were given liberty to spend any amount they liked for the improvement of the suit property and were also permitted to rebuild the entire property.
A registered notice to the defendant’s nos. I and 2 were 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 defendant’s Nos. 4 to 9 who were the tenants Inducted by the mortgagees.
Defendant No. 1 resisted the suit alleging that the term of 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 a written statement. The defendant’s Nos. 4 to 9 resisted the 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.
Thereafter defendant 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 a 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 us 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 Koris for a period of 29 years, that the total mortgage amount along 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.
There was mortgage transaction between the father of the plaintiffs and the mortgagees on 20th April, 1943, that the terms and conditions in the mortgage deed being harsh and oppressive, amounted to clog on equity of redemption, so the plaintiffs were entitled to file the suit even before the expiry of the term of the mortgage; that the sisters of the plaintiffs were not necessary parties to the suit and even if they were, a co-mortgagor was entitled to file the suit for redemption so the suit was not bad for want of non-joinder of necessary parties; that it had jurisdiction to try the suit; that the mortgagees were not entitled to claim interest on 10,000 koris and that the plaintiffs were entitled to recover possession from the defendants Nos. 4 to 9 who were the tenants inducted by the mortgagees.

HELD:

The Supreme Court held that the appeals filed by the mortgagees as well as the tenants were dismissed by the first appellate Court holding that the terms and conditions of the mortgage deed were oppressive and harsh.
There was clog on equity of redemption and the mortgagor should be freed from that bondage that the tenants had no right to he in possession and were not entitled to the protection of the Bombay Rent Control Act after the redemption of the mortgage.