SHAH ZAMAN BABAR, J. -- Syed Mohammad Shah, defendant No, 3, was the original owner of the suit land situated in village Gujrat, Tehsil and District D. I. Khan. He mortgaged the suit land with Muhammad Khan and Ghulam Jafar, defendants 1 and 2, by a registered mortgage deed (copy Exh. P. W. 2/2) executed on 16-2-1956 and registered on 17-2-1956 for an amount of Rs, 4,000.
Various terms were incorporated in the mortgage deed. However, conditions Nos, 1 and 3 with respect to the period of mortgage are mentioned below :-- {{URDU TEXT}} Later on Syed Mohammad Shah sold bahifzi rehn the same mortgaged land to Murid Khan, vide registered sale deed (copy Exh. P. W. 2/1) executed on 4-6-1957 and registered on 7-6-1957 for a sale consideration of Rs, 2,000.
2. Murid Khan instituted the present suit for possession by redemption of the suit mortgaged land on 9-11-1959, against Muhammad Khan, Ghulam Jafar mortgagees defendants 1 and 2, and Syed Muhammad Shah, previous owner, defendant No, 3, on the main plea that the terms of the mortgage deed executed on 16-2-1956 amount to clog on the equity of redemption and, therefore, void.
3. The averments in the pleadings of the parties give rise to as many as 7 issues, out of which issue No, 1 needs recapitulation.
Issue No, 1.--Whether the conditions that mortgage will not be redeemable within 50 years and that the countable period will include only that period in which the land is cultivated and that mortgagee will realise the dues from tenants which will not go towards discharge of the mortgage debt constitute a clog on the equity of redemption and as such are not binding and the land can be redeemed immediately ?
The suit was tried by the Senior Sub-Judge, D. I. Khan, who decided the suit by his judgment and decree dated 16-10-1961. The learned trial Judge was of the view that conditions Nos, 1 and 3 reproduced above, are two distinct terms and that condition No, 1 stipulating that the mortgage shall be for 50 years kamil and the period shall start from Rabi 1956, does not amount to a clog on the equity of redemption. However, he was further of the opinion that condition No, 3 that kamil or full year shall be the one in which complete land is under cultivation for both the crops and if only one crop has been sown it will not be treated as kamil year amounts to a clog on the equity of redemption, and is void. The learned trial Judge, therefore, dismissed the plaintiff's suit for the redemption of mortgage, but held that the mortgage will be considered to be for a period of 50 years from the date of its inception.
4. Murid Khan plaintiff took appeal against the judgment and decree of the learned Senior Sub- Judge, D. I. Khan, to the Court of District Judge, D. I. Khan. The learned District Judge, Derajat, by his judgment dated 30-5-1963, affirmed the judgment and decree of the learned trial Judge and dismissed the appeal.
5. The plaintiff has come up on second appeal to this Court.
6. The only question for determination in this appeal is whether conditions Nos, 1 and 3 of the mortgage deed are inter-dependent and cannot be separated so as to cumulatively amount to be a clog on the equity of redemption under section 60 of the Transfer of Property Act, or that the two terms can be separated as held by the two Courts below. We have given our thoughtful consideration to terms 1 and 3 of the mortgage deed and are of the view that condition No, 3 amounts to an explanation of saal kamil in condition No, 1, and as such the two terms are inter- dependent and inseparable. According to condition No, 3 saal kamil or full year is to be considered the one in which the entire mortgaged land is completely cultivated in both the harvests of the year, and if in any year one crop is cultivated in the mortgaged land, the mortgagee will not be entitled to the period of that year. Thus it has been left entirely to the mortgagee to cultivate all or any portion of the land or not and if the mortgagee does not cultivate the land in any crop of the year he will deprive the mortgagor of his right of redemption for that year and postpone redemption of the mortgaged land to as many years as he wishes and make it impossible for the mortgagor to redeem the land on the expiry of the period of 50 years fixed in condition No, 1 of the mortgage deed. In law, any provision in the mortgage deed which attempts to deprive the mortgagor of his right of redemption absolutely amounts to clog on the equity of redemption, and such condition is void. In Chhedi Lal v. Babu Nandan , it has been held that a contract which amounts to a "clog on the equity of redemption" may be regarded as opposed to public policy and consequently as void under section 23, Contract Act. In Ramchand v. Ghulam Hasan and others , (Peshawar Judicial Commissioner's Court), it has been held : "A term in a mortgage-deed which invests the mortgagee with power to prevent redemption altogether amounts to a clog on the equity of redemption and is unenforceable."
In Rajai Singh and others v. Randhir Singh and others it has been held.
"In considering whether a condition in a mortgage amounts to a clog on the equity of redemption, each case must be examined individually on its own merits. The whole circumstances of the case must be looked at and it must be seen whether the agreement was drafted with the intention that redemption of the property should be practically frustrated, i. e., made so difficult and so hedged about that there was no human likelihood of its ever being redeemed."
7. We are thus of the view that it would be inequitable to uphold the mortgage transaction in question in its literal terms. The mortgagor should be allowed to redeem the property before the expiry of the terms stipulated on payment of the principal money. Consequent'y we accept the appeal, set aside the judgments and decree of the two Courts below, and award a decree for1 2 3 possession by redemption of the suit land in favour of the plaintiff-appellant on payment of the mortgage money of Rs, 4,000 to defendants-respondents Nos, 1 and 2. Parties to bear their own costs.
QAISAR KHAN, J.--I agree with the conclusions arrived at by my learned brother but would like to add the following few words : Both the learned lower Courts have considered conditions 1 and 3 as independent conditions and have held No, 3 to be a clog and No, 1 not to be a clog on the equity of redemption. A perusal of the two clauses however, shows that there are no two conditions, but that there is only one condition which is mentioned in No,
1. No, 3 is only an explanation of the term "kamil" used in condition No, 1.
Taking No, 3 separately, it amounts to nothing. In the circumstances there is only one condition, that is to say, No, 1 and since fifty kamil years can extend to any number of years at the sweet will of the mortgagee, condition No, 1 as a whole is, therefore, a clog on the equity of redemption and it has to go in view of the authorities referred to by my learned brother. AIR 1944 All. 204 72 I C 941 AIR 1925 All. 643