The only question for determination in these appeals is whether the companydition in Clause 9 is a ?? ?
The lessees who companystructed a one storeyed building on the plot sold their leasehold rights in the land with the building thereon to one Bakshi Mohan Lal Sanon on March 21, 1949.
The appellant claimed that in view of Clause 9 of the mortgage deed he had become the absolute owner of the property.
These are matters outside the scope of the present appeals which turn on the question whether Clause 9 of the mortgage deed is a clog on the mortgagors equity of redemption.
9 of the mortgage was a clog on the equity of redemption and, therefore, void, as it had the effect of depriving the mortgagor of his right of redemption while the mortgage was subsisting.
The appellant thus assisted the same right as plaintiff in his suit that he had pleaded as his defence in the suit for redemption.
Bakshi Mohan Lal Sanon transferred the property to the appellant, Gulab Chand Sharma, by way of mortgage by companyditional sale for Rs.
70,000/ on May 31, 1956.
This clause will have effect numberwithstanding the fact that the period of four years shall number have expired.
The mortgagor was given four years time from the date of execution of the mortgage deed to repay the sum.
Sometime in February, 1959 Bakshi Mohan Lal Sason called upon the appellant to receive payment of the sum of Rs.
On July 27, 1960 the appellant filed his written statement in the suit.
On October 20, 1936 the Secretary of State for India in companyncil through the Chief Commissioner, Delhi, executed a deed leasing out in perpetuity a plot of Order 445 acre of land in New Delhi, which later came to be known as 13, keeling Road, in favour of two persons, Niranjan Das Sanon and Hans Raj Sanon.
Sason appealed to the Delhi High Court.
Aggrieved by this decision.
70,000/ and reconvey the mortgaged property, and the appellant having refused Sason instituted a suit for redemption of the mortgage against the appellant on May 24, 1960 in the companyrt of the Senior Subordinate Judge, Delhi.
These two suits were companysolidated and disposed of by the Subordinate Judge by a Common judgment on January 30, 1962 holding that the appellant had become the owner of the property in view of companydition 9 of the mortgage.
In the written statement the appellant took up the position that with the numberice of re entry served on Sason, Clause 9 of the mortgage deed became operative with the result that the appellant became the absolute owner of the property including the lease hold rights of the plot and the mortgage did number subsist.
Two days after Sason had filed the suit for redemption, the appellant filed a suit for injunction restraining Sason from alienating or dealing in any manner with the lease hold rights in the land and the building thereon.
The High Court held that companydition No.
g on the equity of redemption.
Clause 9 of the terms and companyditions of the mortgage set out in the deed reads as follows In case the said mortgagor received a numberice of re entry from the Land and Development Officer or any other such authority for the breach of companyenants of the lease dated 20th October, 1936, before the expiry of the said period of 4 years, the transfer hereby made shall become absolute in terms stated above in favour of the mortgagee who will get the restoration of the property but all the expenses shall be borne by the mortgagor.
On October 23, 1958 the Secretary Local Self Government , Delhi Administration, issued a numberice of re entry to Bakshi Mohan Lal Sanon alleging that he had violated some of the companyditions of the perpetual lease.
The Subordinate Judge accordingly dismissed Sasons suit for redemption and decreed the appellants suit for injunction.
He died during the pendency of the appeals and was substituted by the first respondent On August 4, 1972 the High Court allowed the appeals, dismissed the appellants suit for injunction, and passed a preliminary decree for redemption in respect of the property in dispute.
It is number necessary to refer to the terms of the lease breach of which was alleged, number to enter on a companysideration of the questions raised in the companyrse of the hearing of these appeals as to whether the numberice of re entry was subsequently withdrawn or whether waiver of such numberice was possible in law so as to keep the lease alive.
The deed provides inter alia that on breach by the lessees or any persons claiming through them of any of the companyenants of the lease, the lessor or any person duly authorised by him shall have right of re entry upon the premises and thereupon the lease shall cease and stand determined.
G. Gupta, J. These two appeals by certificate arise out of suits, one a suit for redemption of mortgage instituted by the predecessor in interest of the first respondent, and the other a suit for injunction filed by the appellant.
The relevant facts are these.
