1. MUHAMMAD SHARIF, C. J.--The suit land Khasra-number 370' measuring 2 kanals 18 marias situate in village Mohrah Maikan,, Tehsil Mirpur was acquired for the construction of Mangla Oam, Reservoir. The compensation for the land was assessed at Rs, 2,924.80 in the names of Muhammad Hussain and others.- Abdur Rahim the appellant filed a reference application alleging that his lather Illam Din son of Abdur Rahman had purchased the suit land from the non-applicants- respondents for a considera tion of Rs 200 vide sale deed executed on 18th Jeth 1995 Bk. and that since then the applicant's father and after him the applicant had continued in continuous possession as an owner paying land revenue. He claimed that the land was his and that the- compensation should be paid to him. Muhammad Hussain died during the pendency of the reference and his son Abdul Malik-was brought on record. The learned District Judge by his judgment and decree dated 15-11-1968, held that the land under reference w s never sole rather it was mortgaged and that the transaction was treated as a mortgage and in his capacity as a mortgagee the applicant had been in possession. Abdur Rahim the applicant has come up in appeal before this Court.
2. The applicant-appellant relies on the document Exh. P. A.- which was ex cuted on the 18th of Jeth, 1995 Bk. The document is not registered. It is torn at four places and some words of it at all these four places are missing. Learned counsel for the appellant argued that it was a sale deed. No doubt the word is used at a number of places but then there are other words also which go to detract from the character of the document as a sale deed. It is no doubt put down {{URDU TEXT}} Here some words are missing. {{URDU TEXT}} Then the following words are {{URDU TEXT}} I Again some words are missing here. Then the next line begins {{URDU TEXT}} Again some words are missing. Then the next line begins with {{URDU TEXT}} Then again some words are missing.
3. The entire case rests upon the interpretation of this document, whether it is a sale deed or a mortgage with conditional sale. Only one attesting witness Raja Walayat Khan son of Raj wali Khan caste Ghakhar resident of Dadyal Khas is alive and has been examined as a witness of the applicant-appellant. The witness stated that he knew the parties and that be is the scribe of the agreement Exh. P. A. and that the marginal witness Lal has died. The witness went on to recite that it was incorporated in the agreement that if the land is not redeemed for four or five years then the land shall be deemed to have been sold. The witness stated further that the agreement Exh. P. A. is a mortgage and that the land under reference uptil now continues in possession of the applicant.
4. On the reverse of the stamp on which the document Exh. P. A. has been drawn up the endorsement of the Stamp-vendor is that this stamp is sold for drawing up an agreement. It is not entered there that the stamp is sold for drawing up a sale deed. The non-applicants examined Munshi Safdar All Patwari who proved the copy of the Jamabandi pertaining to village Mohrah Malkan for Kharif 1957 and Rabi 1958 which is Exh. D. A. It may be mentioned here that the alienors possessed occupancy rights in the suit land. Accordingly the entry in the cultivation column is Abdul Malak son of Muhammad Hussain, Kaloo son of Boota, residents-of the village in equal shares, occupancy tenants, section 4, clause (i), Kasht Illam Din son of Abdul Rahman Kashmiri resident of the village, Ghair-Mauroosi. This 111am Din was the father of Abdur Rahim applicant- appellant. In the rent column the entry is {{URDU TEXT}} The Patwari Munshi Safdar All had stated that these entries of theJamabandi Exh. D. A. were carried forward from the Dogra time but no Jamabandi of the Dogra time was placed on record. Therefore, we examined Munshi Safdar Ali Patwari to see what were the entries of the Dogra time.
5. The Patwari produced the Jamabandi for the year 2001 Bk. Land was the same Khasra No, 370. In cultivation column the entry was {{URDU TEXT}} . A copy of the Jamabandi Exh. C. 1 was placed on the file. The entry in Jamabandis pertaining to, Khata No, 72 was as follows: {{URDU TEXT}} The document Exh. P. A. in spite of using the words `Baih and was never treated by the parties as a sale deed. It was treated by the parties as a mortgage deed as the entries of the Jamabandis show and as also has been shown by the applicant-appellant's own witness Raja Walayat Khan. who is scribe of the document. Our finding is that the document Exh. P. A. is a mortgage with conditional sale which provides that if the mortgage money is not paid up within a period of 6 years then it shall be converted into a sale deed or possibly there was a promise that if the mortgage money is not paid within a period of 6 years, the executants shall execute a sale deed in favour of the mortgagee or the period shall be changed as is apparent from the words {{URDU TEXT}}.
6. Learned counsel for the applicant-appellant argued that taking the document to be a mortgage with conditional sale the mortgage was to be treated as a sale if the mortgage money was not paid within a period of 6 years and that after the expiry of 6 years the mortgage deed was automatically converted into a sale deed. The 6 years' period expired on 18th Jeth 2001 Bk. and that the mortgagee the applicant having continued in possession since 18th Jeth 2001 for over 12 years as an owner his title has matured into ownership by prescription extinguishing the title of the mortgagors. Learned counsel for the non-applicants-respondents argued that once a mortgage always a mortgage and that the stipulation in the mortgage deed that after the expiry of the period of 6 years from the date of execution of mortgage Exh. D. A. the mortgage shall be converted into a sale or that the mortgagor shall execute a sale deed in favour of the mortgagee is a clog on redemption and therefore the condition would be void and that the mortgage would remain a mortgage. He cited PLD 1959 Azad .1 & K 73 which lay s down that any condition imposed in the deed of mortgage itself which places any restriction on the right of redeeming the mortgage is a clog on the equity of redemption and as such repugnant to law and void. It was laid down further that:-- "Where a mortgage deed contained the condition that if the mortgagor does not redeem the mortgage within two years of date of mortgage, the mortgagor shall sell it to the mortgagee for the mortgage money : Held that after the lapse of two years the possession of the mortgage remained that of a mortgagee and could not be treated as the possession of an owner and he was never in adverse possession as an owner against the mortgagor."
7. The Division Bench reproduced the observations of Lord Hanley in a case Verson v. Bethel as follows:-- "This Court, as a Court of Conscience is very jealous of persons taking securities for a loan and converting such securities into purchases. And, therefore, I can take it to be an established rule, that a mortgagee can never provide at the time of making the land for any event or condition on which equity of redemption shall be discharged and the conveyance become absolute. And there is great reason and justice in this rule for necessitous men are not, truly speaking, free men, but to answer a present exigencies, will submit to any terms that the crafty may impose upon them.
8. We quite agree with the remarks made by Lord Henley and we are of the view that any condition imposed in the deed of mortgage itself which places any restrictions on the right of redeeming the mortgage is a clog on the equity of redemption and as such repugnant to law and void.
9. Section 60 of the Transfer of Property Act provides that `at any time the principal money has become due, the mort-gagor has a right on payment of the mortgage money to require the mortgagee to deliver to the mortgagor the mortgaged property and all documents relating to the same, provided that the right conferred by this section has not been extinguished by the act of the parties or by decree of a Court'. By this proviso, the law, as we understand and as has been held by so many other High Courts, is that subsequent to the mortgage transaction, the parties may by their acts extinguish the right of redemption but not in the same transaction by which the mortgage is created."
10. A stipulation in a document that the right of redemption shall be 'extinguished' on default in payment AIR 1925 Oudh 11, 78 I C 547 or that the mortgage should be `converted into a sale' is clearly a clog on redemption. For this proposition that the mortgage should be converted into a sale there is a long string of judicial decisions amongst which some may be cited as AIR 1944 Mad.
11. 237, 1894 P R 131, AIR 1946 Mad. 666 (sic), AIR 1918 Mad. 572, AIR 1918Mad. 1332, AIR 1926 Mad. 386, AIR 1915 Mad. 33, AIR 1925 Mad. 366 and AIR 1918 Cal. 638.
12. If the clause for conditional sale is contained in the very document by which the mortgage is created, it is a clog on the equity of redemption and repugnant to law and therefore void but if, however, the parties subsequent to the original trans-action agree among themselves to convert the transaction from a mortgage into a sale they can do so by drawing up a separate sale deed but if they only draw a contract for sale, and not a sale out-right, the transaction would still remain a mortgage and the possession of mortgagee would not be converted into possession as an owner. Since the condition that if mortgage money is not paid within 6 years the land shall be deemed to have been sold for the same amount is contained in the very document creating the mortgage, the condition would operate as a clog on the equity of redemption and therefore void and inoperative and possession of the mortgagee would remain that of a mortgagee and would not be converted into possession as a vendee. If the document Exh. P. A. be interpreted to mean, and it could be so interpreted also, that after the expiry of the period of 6 years the mortgagors shall execute a contract for sale in favour of the other party, the position would remain the same and the possession of the mortgagee would remain the possession of the mortgagee and would not be converted into possession as an owner.
13. We agree with the learned District Judge that the position of the applicant-appellant was that of mortgagee and the learned District Judge has rightly allowed him only Rs, 200 out of the compensation for the land. The appeal is dismissed but in view of the circumstances of the case we leave the parties to bear their own costs throughout.