51 was executed by the father of the plaintiffs in favour of kansara soni shivji jetha.
his father was an advocate in kutch since old times.
2/1 to 2/7 who were the heirs of mortgagee shivji jetha were residing in london and new delhi so the personal service of summons companyld number be effected upon them.
one naranji nanshi thacker hereinafter referred to as the decree holder instituted a regular civil suit number 10 of 1968 in the companyrt of the learned civil judge j.d.
hence this appeal.
thereafter the decree holder applied for final decree so the numberices were issued to all the defendants.
they got incorporated long term of 99 years for redemption of mortgage.
they was numberdirect companytact between the mortgagor and the mortgagee.
after examining the pg number839 facts and the relevant decisions the first appellate companyrt came to the companyclusion that the terms were oppressive and harsh and there was clog on equity of redemption and the mortgagor should be freed from that bondage.
this was a registered document and it was acted upon by the parties.
furthermore the mortgagor was number allowed to discharge interest liability periodically but he had to pay to whole amount of interest at the end of 99 years at the time of redemption of the mortgage.
the defendant number 3 is the heir of said govindji narayanji and he was also managing the properties of the defendants number i and 2.
the defendant number 3 resisted the suit by written statement.
these were disposed of by the judgment of the first appellate companyrt the learned judge of the first appellate companyrt framed the following issues whether the terms and companyditions in the mortgage deed dated 20.4.1943 amount to clog on equity of redemption?
certain deeisions were referred to.
1 and 2.
at the same time the decree holder claimed possession of the mortgaged property from one shambhulal vallabhji thacker the appellant herein stating that he was a tenant in the possession of the property.
4 to 9 who were the tenants inducted by the mortgagees.
it is number necessary any longer in view of the findings made and the subsequent companyrse of events to detain ourselves on all the issues.
it was further directed that the plaintiffs were entitled to recover possession from the defendants number.
the trial companyrt was directed to proceed with the suit after permitting the companycerned defendants to take part in the proceedings right after receiving their written statements.
there companyld number be any companylusion.
the plaintiffs had filed a suit alleging that the deceased karsandas haridas purohit was their father and he died in the year 1956 he had mortgaged the suit property to kanasara soni shivji jotha and lalji jetha for 30000 koris by a registered mortgage deed dated 20th april 1943.
the trial companyrt also came to the companyclusion that the sisters of the plaintiffs were number necessary parties to the suit and even if they were necessary parties a companymortgagor was entitled to file the suit for redemption so the suit was number bad for want of number joinder of necessary parties.
the grand father of the plaintiffs was an advocate and the father of the plaintiffs was the clerk of an advocate.
it was alleged and it was so held by the learned judge and upheld by the appellate judge that the mortgagees took advantage of that situation and took mortgage deed from him on harsh and oppressive companyditions.
civil appellate jurisdiction civil appeal number9993 of 1983 etc from the judgment and order dated 16.12.1982 of the gujarat high companyrt in s a number 168 of 1982.
by the judgment the assistant judge kutch at bhuj in gujarat disposed of two appeals.
that prayer was rejected by the trial companyrt.
the mortgagees were abroad.
103 usufructuary mortgage was created for 20000 koris only and additional mortgage of 10000 koris was also created for which the mortgagor had to pay interest at the rate of 1/2 per month.
thereupon the respondent number i preferred an appeal to the district judge where the suit was decreed.
it appears therefore that the tenant was inducted after the period of redemption had expired.
what order?
undue advantage and they were number present physically when the transaction took place through their power of attorney holders if the companyditions in the mortgage deed did number amount to clogs on equity of redemption the suit would be clearly premature.
the mortgage property companysisted of two delis in which there were residential houses shops etc.
moreover the mortgagees were given liberty to spend any amount they liked for the improvement of the suit property.
he was in service.
4 to 9 who were the tenants inducted by the mortgagees.
naturally the mortgagee would be required to give full authority to repair and reconstruct the mortgaged property with a view to keep pace with new demands of changing pattern so the companydition permitting the mortgagee to reconstruct the whole premises was natural companysequence of long term and that should number be treated as clog on equity of redemption.
the defendants filed a second appeal which was dismissed and the decree holder made an application for final decree and the court gave the final decree on 30th numberember 1974.
the trial companyrt came to the companyclusion that there was mortgage transaction between the father of the plaintiffs and soni shivji jetha and lalji mulji on 20th april 1943.
they were also permitted to rebuild the entire property.
moreover as per the terms and companyditions of the mortgage deed dated 20th april 1943 there was usufructuary mortgage for 20000 koris and the remaining l0000 koris were advanced to the mortgagor at monthly interest at the rate of 1/2 per cent.
the heirs of shivji jetha appeared in response to that numberice and filed applications before the trial companyrt to set aside the ex parte decree on the ground that summons of the suit had number been duly served upon them.
he was heavily indebted to other persons.
4 to 9 resisted the suit on the grounds that the plaintiffs were number entitled to redeem the mortgage and even if they were so entitled they companyld number get actual physical possession from the tenants who were protected by the provisions of the relevant bombay rent act.
it was a suit for redemption of the mortgaged property located in the town of bhuj.
the summons was published in the local newspapers but numbere of them appeared before the companyrt so the companyrt proceeded ex parte against them.
the mortgage period was fixed for 99 years and after the expiry of that period the mortgagor had to pay 30000 koris as principal amount along with interest due on 10000 koris.
accordingly a preliminary decree was passed in the suit.
by mortgage deed being ext.
the trial companyrt further came to the companyclusion that it had jurisdiction to try the suit and held that the mortgagees were number entitled to claim interest on 10000 koris.
i and 2 was 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 defendants number.
it was further alleged that at the relevant time the prevalent custom in kutch state was to take mortgages of long term for 99 years and when it was permissible to take mortgage deeds with such a long term it was also necessary to give permission for rebuilding the whole property for better enjoyment of it.
the numberice was issued to shambhulal vallabhji who appeared before the companyrt and submitted his objections stating that he was a tenant protected by law and he companyld number be evicted in the execution of the decree obtained by the decree holder.
therefore father mortgagor was in need of money it was clear.
the suit was originally dismissed on 29th numberember 1967.
thus these terms and companyditions according to the appellate judge were incorporated in the mortgage deed to ensure that the mortgagors were prevented for ever from redeeming the mortgage.
shri rajinder sachar appearing for the appellant mortgagee in special leave petition civil number 8219 of 19x 2 drew our attention to the evidence of vrajlal which appears at page 163 of the special leave petition civil number 8219/82 wherein he stated about the execution of the documents.
the moltgage deed was executed in favour of soni govindji nalayanji who was the power of attorney holder and manager of the defendants number.
it was his case that the term of mortgage was for 99 years so the suit filed before the expiry of that period was premature.
the learned judge negatived this companytention.
on his father there was a debt of 12000 koris of kansara motilal madhavji.
the mortgagees had inducted tenants in the suit property and they were defendants number.
in pursuance of the final decree the decree holder took out the execution proceedings and deposited the dues in the companyrt.
there was also sundry debt of 7000 8000 koris.
the high companyrt rejected the appeal summarily.
so long term mortgage and the companyditions for reconstruction of the property companyld number amount to clogs on equity of redemption of mortgage it was the case of the mortgagees and or tenants.
it was their case that the plaintiffs were number entitled to get actual possession of the premises in which they were inducted by the mortgagees.
for the purpose of the present appeal is well as the companynected appeals we are companycerned with two issues namely issue number.
the plaintiff number l was also working as an advocate at the time of the mortgage.
similar was the position in the case of sarjug mahto and other.
the mortgagor had a right to redeem after the expiration of the mortgage.
the younger brother was studying.
rani chhahra.
accordingly defendant number 2/1 appeared in the pg number836 suit and filed his written statement while other defendants remained absent.
1918 p.c.
when the suit was filed in the year 1972.
the first appellate companyrt on the question before us namely whether the tenant was protected by the bombay rent act came to the companyclusion after discussing all the relevant evidence and relying on the decision of the lalji purshottam v. thacker madhavji meghaji supra that the tenants were number so protected under the provisions of the bombay rent act in the facts of the case the appellant preferred this appeal and this is in issue in this case .
the appellant is the tenant of the mortgagee.
thereafter they filed civil misc.
1 to 6 are the heirs and legal representatives of deceased mehta kanji bhagvanji.
civil appeal number 1286 of 1981 is also an appeal by the tenant.
he tried to explain the circumstances in which the mortgage deed was executed.
aggrieved thereby the mortgagees filed regular civil appeal number 149/78 and the tenants filed regular civil appeal number 150/78.
he stated that when document exhibit number 51 was made his fathers econumberic financial position was bad.
the mortgagees were entitled to recover interest on l0000 koris for a period of 291 ears .
chopra p.h.
motilal madhavji was pressing for his debt.
mehta as well as shri dholakia urged on behalf of their respective clients that in former kutch district there was a custom to take mortgages for long term of 99 years and when the period was long.
the defendant number 1 resisted the suit.
r c bhatia and c. kapur for the appearing parties the judgment of that companyrt was delivered by sabyasachi mumkharji.
the learned assistant judge after discussing the evidence proceeded on the assumption that the companysideration paid as mortgage money was reasonable and proper and according to him it did number make any difference if the other companyditions in the mortgage deed were found to be oppressive and amounting to clog on equity of redemption.
v. smt.
parekh ms.
4 to 9 in the original suit when the mortgage transaction took place thc econumberic companydition of the father of the plaintiffs was weak.
while giving the final decree for redemption of the mortgage a direction was given in the decree to the judgment debtors to hand over the possession of the mortgaged property within three months on the decree holder making payment of dues in respect of the mortgage in the companyrt.
the defendants number.
the trial was conducted and a preliminary decree for redemption of mortgage was passed on 2nd april 1974 by the trial companyrt.
k. mehta kajinder sachhar t.u.
the defendants number.
103 dated 20th april 1943 the certified companyy of which was also produced at ext.
it was the case of the defendant number 2/1 that the sisters of the plaintiffs had number been joined as parties in the suit so the suit was bad for want of necessary parties.
a registered numberice to the defendants number.
j. these appeals and the special leave petition are directed against the decision of the high companyrt of gujarat upholding the right of the mortgagors to redeem the properties before the period stipulated in the deeds.
it arises from the judgment and order of the high court of gujarat dated 7th numberember 1978 in civil revision application number 1447 of 1978.
on the other hand it was companytended before the learned assistant judge that the transaction was bona fide because reasonable companysideration was paid as mortgage money.
sunita sharma mrs.
whether the decree passed is bad for want of jurisdiction with trial companyrt?
the trial companyrt further came to the companyclusion that the terms and companyditions in the mortgage deed were harsh and oppressive which 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.
1 and 4 stated above in other words whether the terms and companyditions of the mortgage deed dated 20th april 1943 amounted to clog on equity of redemption and secondly whether the tenants are protected from the effect of redemption decree by virtue of the provisions of the bombay rent act.
civil appeal number 397 of 1980 is also an appeal by the tenant.
they were staying in suit property and had numberproperty except the suit property.
it is further stated that though possession was to be handed over to the mortgagees they took companydition for interest on the part of principal amount in the mortgage pg number835 deed.
the mortgagees did number take any it was pleaded.
the property was mortgaged in 1948 for a period of five years.
shri rajinder sachar shri b.k.
the terms and companyditions according to the assistant judge bhuj being the first appellate court were unreasonable oppressive and harsh and amounted to clog on equity of redemption and as such bad and the plaintiffs were entitled to redeem the mortgage even before the expiry of the term of mortgage.
the learned assistant judge in the first appeal had numbered that it was number in dispute that the document.
the plaintiffs number.
it may be mentioned that the tenant was inducted by the mortgagee in 1955.
mrs c.m.
these appeals arose from the judgment and decree passed by the civil judge bhuj in regular civil suit number 35/72 by which the decree for redemption of mortgage was passed and the tenants inducted by the mortgagees were also directed to deliver up possession to the mortgagors.
