' Through Mutation No,462 attested on 9-2-1956 in Mouza Mad Azam Danda Khel, District Bannu, Mubarik Ali Khan and Muhammad Ali Khan sons of Meena Khan had mortgaged their property in favour of Seena Bibi, daughter of Meena Khan, Noor Jehana, Zaroof Jana and Bukhari Jana daughters of Zareen Khan against a mortgage amount of Rs,7,000. The condition imposed on the mortgage was that it had to subsist for lifetime. The real words written in column No,13 of the mutation and in order of the Revenue Officer were {{URDU TEXT}}This transaction was subsequently re-enforced by a registered mortgage deed No,28 dated 10-61956 registered on 25-6-1956 whereby the rights of the parties were fully elaborated.
2. Here, in the subsequent registered deed the words {{URDU TEXT}} L. Were amplified into {{URDU TEXT}} . The existence of a condition of life time was further elaborated in the deed Exh.P.W.2/2 to the effect that in case of the death of any of the four mortgagees, the entire mortgage would then subsist in the remaining three mortgagees; so much so, that the mortgage was not to be considered redeemable even if the last of the four was alive. The time passed peacefully up to 1988 when Mubarik Ali Khan and his three nephews Sajjad Ali, Ejaz Ali and Abbas Ali, sons of Muhammad Ali Khan, the second mortgagor, brought a suit for declaration-cum-redemption of the suit property on the ground that the condition of {{URDU TEXT}} was a clog on the equity of redemption and that the property be redeemed in their favour on payment of Rs,7,000 as mortgage amount.
Mr. Zia-ud-Din Siddiqui, learned Senior Civil Judge, on the conclusion of trial, granted the plaintiffs the decree prayed for on 18-7-1991 holding that the condition of lifetime in the mortgage deed was a clog on the equity of redemption. Malik Mujtaba Ahmed, learned Additional District Judge, Bannu, in his judgment dated 31-10-1993 held the contrary view, considered the mortgage to be intact for lifetime of the ladies and dismissed the suit of the mortgagors/successors-in-interest of the mortgagors. They have filed the present revision petition.
3. The status of the parties of being mortgagors and mortgagees is admitted. The creation of mortgage through Mutation No,462 dated 9-2-1956 and subsequent deed No, 28 registered on 25- 6.1956 is also admitted, but for the restriction on redemption for lifetime which is claimed to be a clog on equity of redemption. So, the only point for determination is, and has been in the suit as well, as to whether the instant condition is a clog or not.
4. Clog is a restriction or impediment so placed in the way so as to mak the redemption absolutely impossible. A temporary obstacle or impedimen does not amount to a clog because such temporary impediments are created cases of mortgages which are so created for a specific period and which cannot be redeemed before the expiry of that period. What is aimed to be brought home is, that in law there exists a clear difference between absolute clog and a temporary impediment, which in turn, is also called as an incidence of limitation. Hundreds of mortgages have been created and are being created day in and day out where the period of redemption is already fixed and before the expiry whereof no right to redeem either accrues or can be exercised.
5. After having made this distinction between absolute bar and limitation (i,e, temporary bar), the next question that falls for determination in as to what can be the possible length of that limitation.
The answer thereto is the simplest in the present controversy, in that, the length of such limitation could be as much as it is practically agreed upon between the parties. No specific limitation is provided in law and it could be from one month to ninety years whereafter the mortgage would become redeemable.
6. A similar controversy had arisen before Oudh High Court in AIR 1929 Oudh page 54 where right of redemption was allowed to be exercised only after the passage of ninety years which was fixed by the parties as the term of mortgage. In another case appearing in AIR 1959 Madhya Pradesh page 200, there was a mortgage where the period was fixed for eighty years. A case came before the.
Supreme Court of India in AIR 1958 Supreme Court 770 where the period of mortgage fixed as eighty-five years was not considered to be a clog on equity of redemption. Right of a mortgagor to redeem the property was held to have come into existence only when the term of mortgage expired. Such controversy came up before the Supreme Court of Azad Jammu and Kashmir in PLD 1979 Supreme Court (AJ&K) 74). Again a dispute regarding clog on equity of redemption came before the High Court of Azad Jammu and Kashmir in Mst. Khatija and others v. Mst. Raheela and others (PLD 1982 Azad JK 17) where all the aforesaid rulings were discussed. The crux of all the case- law on the subject is that mere length of the period of mortgage agreed upon between the parties is never a clog on the equity of redemption. In such circumstances the redemption is never impossible. A clog comes into operation only when the redemption through certain condition is rendered impossible. How the parties or one of the parties could object to the longavity of a mortgage when it is created and agreed upon by the parties or the party, itself.
7. The same principle could squarely be applied to the present mortgage where the death of all the four mortgagees is stipulated to be a condition precedent for redemption of mortgage. The only confusing aspect or the feigned confusion by the mortgagors, is that the period of redemption is not known with certainty but the fact remains that this is a matter fully agreed upon by the mortgagors themselves. It appears uncertain simply because the mortgagees are not dying quickly. The situation would have been altogether different if the mortgagees had died by now. The condition placed on redemption is not harsh either because we have been observing the mortgages as above where the period was extended even up to ninety years. In the present case, the mortgagors have even not waited for a short period of 32 years and the mortgage also was never created under some undue influence. Rather they had already received lands from the ladies through a prior deed No,7 D registered on 8-2-1956, the certified copy whereof is Exh.P.W.2/1.
Moreover, this mortgage was created with a positive intention that it would remain with the ladies as a mean of subsistence till their lifetime. The redemption thereof is not impossible and the right to redeem shall accrue with the death of the mortgagees when the legal heirs of the ladies would always be there to fulfil the condition of mortgage. One of the ladies-mortgagees is reported dead.
8. In view of what has been discussed above, I am of the view that the length of a mortgage, however long it may be, is never a clog on equity of redemption because it is agreed upon between the parties. In the circumstances, the learned Additional District Judge had taken the correct view. The revision petition is hereby dismissed. No order as to costs.