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PETITIONER: POMAL KANJI GOVINDJI & ORS.

       Vs.

RESPONDENT: VRAJLAL KARSANDAS PUROHIT & ORS.

DATE OF JUDGMENT04/11/1988

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RANGNATHAN, S.

CITATION:  1989 AIR  436            1988 SCR  Supl. (3) 826  1989 SCC  (1) 458        JT 1988 (4)   307  1988 SCALE  (2)1287  CITATOR INFO :  F          1989 SC1110  (11,14,16,18)

ACT:     Transfer  of  Property Act, 1882/Sections  60  and  76-- Whether long term mortgages are clog on equity redeemable at the  mortgagor’s  instance before  the  stipulated  period-- Tenants   inducted   by  mortgagee’s  can  be   evicted   on termination of mortgage. %     Bombay Rents, Hotel and Lodging House Rates Control  Act 1947,  Lease  created by mortgagee in  possession  of  urban immovable  property--Tenancy whether entitled  to  statutory protection of Rent Act.

HEADNOTE:     In the matter giving rise to the Special Leave  Petition (Civil)  No.  8219  of  1982 the  plaintiffs  filed  a  suit alleging  that their father, who dies in the year 1956,  had mortgaged the suit property for 30,000 Koris by a registered mortgage deed dated 20th April, 1943, executed in favour  of the  power of attorney holder and manager of the  defandants Nos.  l  and  2.  The defendant No. 3 is  the  heir  of  the attorney  who  was  also  managing  the  properties  of  the defendants Nos. I and 2. The mortgage property consisted  of two  delis  having  residential  houses,  shops,  etc.   The mortgagees  had inducted tenants in the suit property  being defandants  Nos.  4  to 9 in the  original  suit.  When  the mortgage  transaction took place the economic  condition  of the  father  of the plaintiffs was weak and he  was  heavily indebted to others. Taking advantage of that situation,  the mortgagees  took  mortgage  deed  from  him  on  harsh   and oppressive conditions by getting incorporated a long term of 99  years for redemption of mortgage. Though possession  was to be handed over to the mortgagees, they took condition for interest  on  the part of principal amount in  the  mortgage deed.  Mereover, the mortgagees were given liberty to  spend any  amount  they  liked for the  improvement  of  the  suit property  and  were  also permitted to  rebuild  the  entire property.     A  registered notice to the defendants Nos. I and 2  was given  to  redeem the mortgage, but they failed  to  do  so,

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hence, the present suit was filed to redeem the mortgage and to recover actual possession from the defendants Nos. 4 to 9 who were the tenants Inducted by the mortgagees.                                                   PG NO 827     Defendant No. 1 resisted the suit alleging that the term of  the mortgage was for 99 years, so the suit filed  before the expiry of that period was premature. The defendant No. 3 resisted  the  suit  by filing the  written  statement.  The defendants Nos. 4 to 9 resisted the suit on the grounds that the plaintiffs were not entitled to redeem the mortgage  and even  if  they were so entitled, they could not  get  actual physical  possession from the tenants who were protected  by the  Bombay  Rent  Act, because they were  inducted  by  the mortgagees. The Court proceeded against defendants Nos.  2/1 to 2/7 (heirs of mortgagee-defendant No. 2) ex-parte, and  a preliminary decree for redemption of mortgage was passed  on 2nd  April,  1974  by the Trial  Court.  But  this  ex-parte decree  was set aside by the District Court in  the  appeals filed  by  the heirs of defendant No. 2 on the  ground  that summons  of  the suit had not been duly  served  upon  them. Thereafter  defendent  No. 2/1 filed his  written  statement alleging  that  the  suit was bad  for  non-joinder  of  the sisters  of the plaintiffs as parties. Moreover, as per  the terms  and  conditions  of  the  mortgage  deed,  there  was usufructuary  mortgage for 20,000 koris, and  the  remaining 10.,000  koris  were advanced to the  mortgagor  at  monthly interest at the rate of 1/2 per cent. There was a  condition in the mortgage deed that the mortgagor would pay  principal amount  us well as the interest at the time  of  redemption. When  the  suit was filed in the year 1972,  the  mortgagees were  entitled  to recover interest on 10,000  Koris  for  a period  of  29 years, that the total mortgage  amount  along with  interest would come to 47,400 koris equivalent to  Rs. 15800  and the Civil Judge had no jurisdiction to  try  such suit;  that the court fees was also not sufficient; that  it was  not true that the father of the plaintiffs was of  weak economic  condition. The grand father of the plaintiffs  was as  Advocate and the father of the plaintiffs was the  clerk of an advocate. ’The plaintiff No. l was also working as  an Advocate at the time of the mortgage, so they knew the legal position; 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  lt. So  these  terms  could  not amount to  clog  on  equity  of redemption  of  mortgage, the mortgagees did  not  take  any undue  advantage and they were not present  physically  when the  transaction took place through their power of  attorney holders.  If the conditions of mortgage deed did not  amount to clogs on equity of redemption, the suit would be  clearly premature.  The  plaintiff No. I had subsequently  became  a Civil Judge and was ultimately the Chairman of the  Tribunal so  if  the said terms and conditions of the  mortgage  were onerous  and oppressive, he would not have sat idle  for  29 years. But he remained silent  because he was  aware of  the                                                   PG NO 828 said   custom.  The  prices  of  immovable  properties   had increased  tremendously, therefore, the suit had been  filed with  mala fide intention; that in case the Court  comes  to the conclusion that there was a clog on equity or redemption and the plaintiffs were entitled to the redemption, then the interest on 10,000 koris should be awarded to the mortgages; and  that the suit should be dismissed as there was no  clog on equity of redemption and the Court had no jurisdiction to

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try the suit. The other defendants remained absent.     The  Trial  Court while decreeing the suit came  to  the conclusion  that there was mortgage transaction between  the father  of the plaintiffs and the mortgagees on 20th  April, 1943,  that  the terms and conditions in the  mortgage  deed being  harsh and oppressive, 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; that the sisters of the plaintiffs were not necessary parties to  the suit  and even if they were, a co-mortgagor was entitled  to file  the  suit for redemption so the suit was not  bad  for want  of  non-joinder  of necessary  parties;  that  it  had jurisdiction  to try the suit; that the mortgagees were  not entitled  to  claim interest on 10,000 koris  and  that  the plaintiffs  were  entitled to recover  possession  from  the defendants Nos. 4 to 9 who were the tenants inducted by  the mortgagees.     The  appeals  filed  by the mortgagees as  well  as  the tenants were dismissed by the first appellate Court  holding that  the  terms and conditions of the  mortgage  deed  were oppressive and harsh, there was clog on equity of redemption and the mortgagor should be freed from that bondage that the tenants  had  no  right to he in  possession  and  were  not entitled to the protection of the Bombay Rent  Control   Act after  the  redemption  of  the  mortgage.  The  High  Court dismissed the second appeal.     Civil  Appeal  No.  9993 of 1983 is  an  appeal  by  the tenant.  Civil Appeal No. 397 of l980 is also an  appeal  by the  tenant.  In this case the  decree-holder  instituted  a regular  suit for redemption of the mortgage  property.  The suit was dismissed. Thereupon the respondent No. l preferred an appeal to the District Judge where the suit was  decreed. The  defendants filed a second appeal which  was  dismissed. The decree-holder made an application for final decree.  The Court  while giving the final decree for redemption  of  the mortgage  directed  the judgment-debtors to  hand  over  the possession  of the mortgage property within three months  on the  decree-holder  making  payment of dues  in  respect  of the mortgage in the court. In pursuance of the final  decree the  decree-holder  took out the execution  proceedings  and                                                   PG NO 829 deposited  the dues in the Court and claimed  possession  of the mortgage property from the appellant herein stating that he  was a tenant in the possession of the  property.  Notice was  issued  to  the tenant,  who  submitted  his  objection stating  that  he  was a tenant, not to be  evicted  in  the execution of the decree and that he was entitled to get  the protection  under the Bombay Rent Control Act. The  District Judge  held  that there was no conduct on the  part  of  the decree-holder  which would stop him from  claiming  physical possession  from the tenant of the mortgagee in  possession. The  High  Court rejected the appeal  summarily.  Hence  the appeal.     Civil  Appeal No. 1286 of 1981 is also an appeal by  the tenant.  The  appellant  is  the  tenant  of  the  mortgagee inducted  in 1955. The property was mortgaged in 1948 for  a period  of  five  years.  It appears  that  the  tenant  was inducted  after  the period of redemption had  expired.  The mortgagor had a right to redeem after the expiration of  the mortgage.  The first appellate court came to the  conclusion that  the tenants were not protected under the provision  of the  Bombay Rent Control Act. The appellant  preferred  this appeal in this Court.     On behalf of the appellants it was contended that in the former  Kutch District there was a custom to mortgage for  a

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long  term  of  99  years and  when  the  period  was  long, naturally  the  mortgagee  would he 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 condition should not he treated as clog  on equity of redemption; (2) that there is no evidence to  lead to  the conclusion that there was any undue  influence;  (3) that the provision for the payment towards cost and expenses of repairs and construction did not amount to a clog on  the equity of redemption; (4) that on the evidence and the facts the  transactions  did not amount to clog on the  equity  of redemption;  (5) that in Civil Appeal No. 9993 of  1982  the plaintiff’s were not entitled to recover possession from the appellants,  who  are tenants in  the  mortgage  properties, since  their  rights are protected under the  Bombay  Rents, Hotel and Lodging House Rates Control Act? 1947 as the  said Act  applies  to  the area of Kutch  in  the  Bombay  State. Therefore,  no decree for eviction could he  passed  against them  except in accordance with the provisions of  the  said Act; (6) that the Trial Court did not make any finding as to when  the tenants were inducted, either before or after  the rent  restriction  Act was made applicable to the  area  of’ Kutch and (7) that the High Court has erred in not following the said legal position entrenched by a line of decisions of this  Court  with  the  rights of a  tenant  inducted  by  a mortgagee  with possession would enure beyond the period  of                                                   PG NO 830 redemption  of  the mortgage if his rights are  enlarged  by subsequent tenancy legislation in force in the area in which the property is situated.     Dismissing the Appeals,     HELD:  1. The Court will ignore any contract the  effect of which is to deprive the mortgagor of his right to  redeem the mortgage. [844E]     2.  The  rights  and liabilities of  the  mortgagor  are controlled by the provisions of section 60 of the  Transfer of Property Act, 1882. [846F]     3.  Any provision inserted to prevent. evade  or  hamper redemption is void. [846G]     4. The doctrine  "clog on the equity of redemption" is a rule  of  justice, equity and good conscience.  It  must  be adopted in each case to the reality of the situation and the individuality of the transaction [847A]     5.  Freedom of contract is permissible provided it  does not  lead to taking advantage of the oppressed or  depressed people.  The  law  must  transform  itself  to  the   social awareness. Poverty should not be unduly permitted to curtail one-s right to borrow money on the ground of justice, equity and  good conscience on just terms. If it does, it  is  bad. Whether it does or does not. however, depends upon the facts and the circumstances of each case. [847H; 848A]     6.  Whether in the facts and the circumstances of  these cases.  the  morgage  transaction amounted to  clog  on  the equity  of redemption, is a mixed question of law and  fact. [848D]     7.  Courts  do  not look with favour at  any  clause  or stipulation which clogs equity of redemption. A clog on  the equity   of  redemption  is  unJust  and  unequitable.   The principles  of English law, as  we  have  noticed  from  the decisions referred to hereinbefore which have been  accepted by this Court in this country, looks with disfavour at clogs On  the equity of redemption. Section 60 of the Transfer  of Property  Act, in India, also recognises the same  position. (848D-E]     8.  It  is a right of the mortgagor  on  redemption,  by

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reason  of the very nature of the mortgage, to get back  the subject  of  the mortgage and to hold and enjoy  as  he  was entitled to hold and enjoy it before the mortgage. If he  is                                                   PG NO 831 prevented from doing so or is prevented  from redeeming  the mortgage,  such  prevention  is  bad in law.  If  he  is  so prevented,  the  equity of redemption is  affected  by  that whether  aptly  or not, and it has always been termed  as  a clog.  Such  a  clot  is  inequitable.  The  law  does   not countenance it. [848F-G]     9. Whether or not in a particular transaction there is a clog on the equity or redemption, depends primarily upon the period  of  redemption, the circumstances  under  which  the mortgage was created, the economic and financial position of the  mortgagor, and his relationship vis-a-vis him  and  the mortgagee, the economic and social condition in a particular country  at  a particular point of time,   customs  if  any, prevalent  in  the  community or the society  in  which  the transaction   takes   place,  and  the   totality   of   the circumstances  under  which a mortgage  is  created,  namely circumstances  of the parties, the time, the situation,  the clauses for redemption either for payment of interest or any other  sum, the obligation of the mortgagee to construct  or repair  or  maintain  the mortgaged  property  in  cases  of usufructuary  mortgage  to  manage as a  matter  of  prudent management,  these factors must be co-related to each  other and  viewed in a comprehensive conspectus in the  background of  the  facts  and  the  circumstances  of  each  case,  to determine  whether these are clogs on equity of  redemption. [848H; 849A-C]     10. A mortgage is essentially and basically a conveyance in  law or an assignment of chattels as a security  for  the payment  of debt or for discharge or some  other  obligation for  which  il  is given The security  must,  therefore,  be redeemable  on  the  payment or discharge of  such  debt  or obligation. ,any provision to the contrary, notwithstanding, is a clog or fetter on thc equity of redemption and,  hence. bad  and  void.  "Once  a  mortgage  must  always  remain  a mortgage", and must not be transformed into a conveyance  or deprivation of the right over the property. [849D-E]     11 . The law must respond and be responsive to the  felt and discernible compulsions of circumstances that would  be- equitable.  fair and just, and unless there is  anything  to the  contrary  in the Statute, law must take  cognisance  of that  fact  and  act accordingly. Ia  the  context  of  fast changing circumstances and economic stability, long-term for redemption makes a mortgage an illusory mortgage, though not decisive. [850D-E]     12.  Even  apart from section 76(a) of the  Transfer  of Property  Act if the words of the mortgage deed clearly  and indubitably express an intention to allow expressly creation                                                   PG NO 832 of  a tenancy  beyond the term of’ the mortgage,  then  only the  lease  created  in  exercise  of  the  power  expressly conferred  by  the  mortgage deed would be  binding  on  the mortgagor. If the words of the mortgage deed do not  clearly and  indubitably disclose the intention to  allow  expressly the creation of a tenancy beyond the terms of the  mortgage, the  mere  fact  that  the  mortgage  deed  authorises   the mortgagee  with  possession  to induct a  tenant  would  not create  a  tenancy  binding  on  the  mortgagor  after   the redemption of the mortgage. [857E-G]     13. In the instant cases the tenancy rights did not come to be  enlarged by the Tenancy Legislation after the  tenant

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was  put  into possession by the mortgagee and  the  tenancy created  in favour of the tenants by the mortgagor  did  not have the concurrence of the morfgagor so as to claim tenancy rights even after redemption of the mortgage. [866C]     Khatubai  Nathu  Sumra v. Rajgo Mulji  Nanji  and  Ors., A.I.R.  1979  Gujarat  171;  Lalji  Purshottam  v.   Thacker Madhavji  Meghaji,  17 Gujarat Law  Reporter  497;  Maganlal Chhotalal  Chhatrappati and Ors. v.  Bhalchandra  Chhaganlal Shal,  15  Gujarat Law Reporter 193; Soni  Motiben  v.  M/s. Hiralal  Lakhasmhi,  22 Gujarat Law  Reporter  473;  Vadilal Chaganlal  Soni  and Others v. Gokaldas Mansukh  and  Other, A.I.R.  1953  Bombay 408; Sarjug Mahto and  Others  v.  Smt. Devruo Devi and Others, A.I.R. 1963 Patna 114; Kunjbiharilal v.  Pandit  Prag  Narayan,  A.I.R.  1922  Oudh  283;  S.  V. Venkatarama  Reddiar v. Abdul Ghani Rowther &  Ors.,  A.I.R. 1980 Mad. 276 and Devkinandan and Another etc. v. Roshan Lal and Others, A.I.R. 1985 Rajasthan 11, approved.     Santley v. Wilde,  [1989] 2 Ch. 474; Vermon v.  Betheli, 28  E.R. 838 and 839; G. and C. Kreglinger v. New  Patagonia Meat and Cold Storage Company Ltd., [1914] Appeal Cases  25; All  lndia Film Corporation v. Raja Gyan Nath, [1969] 3  SCC 79; Sachalmal  Parasram v. Ratnabai, [1973] 3 SCC 198 and Om Prakash Garg v. Ganga Sahai & Ors., [1987] 3 SCC 553, relied on.     Seth Ganga Dhar v. Shankar Lal & Ors., [1959] S.C.R. 509 and Jadavji Purshottam v. Dhami Navnitbhai Amaratlal & Ors., [1987] 4 SCC 223, distinguished,     Aziz Khan v. Duni Chand and Others, A.I.R. 1918 P.C. 48; Jarrah Timber & Wood Paving Corporation v. Samuel, 119031  2 Ch.  l; Chhedi Lal v. Babu Nandan, AIR 1944  Allahabad  204;                                                   PG NO 833 Bhika  and Anr. v. Sheikh Amir and Ors., A.l.R. 1923  Nagpur 60;  Mahabir Gope v. Harbans Narain Singh, [1952]  SCR  775; Hariher Prasad Singh v. Must. of Munshi Nath Prasad,  [1956] S.C.R.  l; Asa Ram v. Mst. Kam Kali, [1958] SCR  986;  Dahya Lal v. Rasul Mohammed Abdul Rahim, [1963] 3 SCR 1; Madan Lal v.  Bedri  Narain and Others, [1987] 3 S.C.C.  460;  Mulla’s Transfer  of Property Act, 7th Edition, pages 401  and  402; Rashbehary Ghose’s ’Law of Mortgage’ 6th Edition, pages  227 and  228; Dalal’s Rent Act 4th Edn. page 814 referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No  9993  of 1983 etc     From  the  Judgment and Order dated  16.12.1982  of  the Gujarat High Court in S A No. 168 of 1982.     B.K.   Mehta,  Kajinder  Sachhar,  T.U.    Meita,   S.K. Dholakia.  Vimal Dave Krishan Kumar. Mrs C.M.  Chopra,  P.H. Parekh, Ms. Sunita Sharma, Mrs. Rani Chhahra. R C Bhatia and P.C. Kapur for the appearing parties The Judgment of that Court was delivered by     SABYASACHI  MUMKHARJI. J. These appeals and the  special leave  petition  are directed against the  decision  of  the High   Court  of  Gujarat,  upholding  the  right   of   the mortgagors  to  redeem  the properties   before  the  period stipulated  In  the  deeds. as well as  the   right  of  the mortgagors to recover possession of the properties from  the tenants and/or the mortgagees without resort to the relevant Rent   Restriction  Act. All these matters  were  separately canvassed  before us  as these involved varying  facts,  yet the  fundamental  common  question  is,  whether  long  term mortgages in the present infaltionary market in fast  moving conditions are clogs on equity of redemption and as such the

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mortgages are redeemable at the mortgagors’ instance  before the stipulated period and whether the tenants who have  been inducted by the mortgagees can be evicted on the termination of  the mortgage or do these tenants enjoy protection  under the relevant Rent Restriction Acts. One basic fact that  was emphasised  in  all these cases was that all  these  involve urban  immovable properties. In those cirumstances,  whether the mortgages  operate as clogs on equity of redemption is a mixed  question of law and facts. It is necessary to have  a conspectus  of  the  facts involved in  each  of  the  cases herein.  We  may start with the facts  relating  to  Special Leave Petition (Civil )  No. 8219 of 1982 because that is  a typical case.                                                   PG NO 834     In  this matter by our order dated 9th January, 1988  we had     directed that this special leave petition should  be heard   first  in  these  series  of  matters.  We   do   so accordingly. We grant leave and dispose of the appeal by the judgment herein along with other appeals.     This  is  an appeal from the judgment and order  of  the Gujarat  High Court, dated 26th April, 1˜82  dismissing  the second  appeal.  The High Court observed  that  the  learned Judge  had followed the judgment of the said High  Court  in Khalubai  Nathu Sumra v. Rajgo Mulji Nanji and  others,  AIR 1979  Gujarat  171  where the learned Single  Judge  in  the background   of   a  mortgage,  where  the   mortgagor   was financially  hard-pressed and the mortgage was for 99  years and  the  term  gave the mortgagee  the  right  to  demolish existing structure and construct new one and the expenses of such   to  be  reimbursed  by  mortgagor  at  the  time   of redemption,  it was held that the terms were   unreasonable, unconscionable  and  not  binding.  In  order,  however,  to appreciate  the  contentions  urged  therein,  it  will   be necessary  to refer to the decision of the  first  Appellate Court, in   the instant case before us. By the judgment, the Assistant  Judge, Kutch at Bhuj in Gujarat disposed  of  two appeals.  These appeals arose from the judgment  and  decree passed  by the Civil Judge, Bhuj, in Regular Civil Suit  No. 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.  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 30,000  Koris by  a registered mortgage deed dated 20th April,  1943.  The moltgage  deed  was  executed in  favour  of  Soni  Govindji Nalayanji who was the  power of attorney holder and  manager of the defendants Nos. 1 and 2.  The defendant No. 3 is  the heir  of said Govindji  Narayanji and he was  also  managing the  properties of the defendants Nos I and 2. The  mortgage property  consisted  of  two  delis  in  which  there   were residential  houses, shops etc. The mortgagees had  inducted tenants in the suit property and they were defendants Nos. 4 to 9 in the original suit When the mortgage transaction took place,   thc  economic  condition  of  the  father  of   the plaintiffs  was  weak.  he was  heavily  indebted  to  other persons.  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  conditions.  They  got incorporated  long  term  of 99  years   for  redemption  of mortgage. It is further stated that though possession was to be  handed over to the mortgagees, they took  condition  for interest  on  the part of principal amount in  the  mortgage

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                                                 PG NO 835 deed.  Moreover, the mortgagees were given liberty to  spend any  amount  they  liked for the  improvement  of  the  suit property.  They  were also permitted to rebuild  the  entire property. Thus these terms and conditions, according to  the Appellate  Judge, were incorporated in the mortgage deed  to ensure  that  the mortgagors were prevented  for  ever  from redeeming the mortgage. The terms and conditions,  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. A registered notice  to the defendants Nos. 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 Nos. 4 to 9 who were the tenants inducted  by the mortgagees.     The  defendant No. 1 resisted the suit. 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 defendant No. 3 resisted the suit by  written statement. The defendants Nos. 4 to 9 resisted the suit on the grounds that the plaintiffs were not entitled to redeem the mortgage  and even  if  they were so entitled, they could not  get  actual physical  possession from the tenants who were protected  by the provisions of the relevant Bombay Rent Act. It was their case  that the plaintiffs were not entitled to  get   actual possession  of the premises in which they were  inducted  by the  mortgagees.   The defendants Nos. 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 could  not be  effected  upon them. The summons was  published  in  the local newspapers but none of them appeared before the  Court so the Court proceeded ex-parte against them. The trial  was conducted  and  a  preliminary  decree  for  redemption   of mortgage  was passed on 2nd April, 1974 by the Trial  Court. Thereafter,  the decree-holder applied for final  decree  so the notices were issued to all the defendants. The heirs  of Shivji  Jetha appeared in response to that notice and  filed applications  before  the Trial Court to set aside  the  ex- parte decree on the ground that summons of the suit had  not been duly served upon them. That prayer was rejected by  the Trial  Court. Thereafter, they filed Civil Misc. Appeals  in the District Court. The appeals were allowed by the District Court and the ex-parte decree for redemption of mortgage was set aside.  The Trial Court was directed to proceed with the suit after permitting the concerned defendants to take  part in  the  proceedings  right after  receiving  their  written statements.  Accordingly defendant No. 2/1 appeared  in  the                                                   PG NO 836 suit and filed his written statement while other  defendants remained absent.     It  was  the  case of the defendant  No.  2/1  that  the sisters of the plaintiffs had not been joined as parties  in the suit, so the suit was bad for want of necessary parties. Moreover,  as per the terms and conditions of  the  mortgage deed dated 20th April, 1943, there was usufructuary mortgage for  20,000  koris  and  the  remaining  l0,000  koris  were advanced to the mortgagor at monthly interest at the rate of 1/2  per  cent. There was a condition in the  mortgage  deed that  the mortgagor should  pay principal amount as well  as the  interest at the time of  redemption. When the suit  was filed  in  the year 1972. the mortgagees  were  entitled  to recover interest on l0,000 koris for a  period of 291 ears .

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That  interest would be 17,400 koris so the  total  mortgage amount  will  be Rs.47400 which would be equivalent  to  Rs. 15,800)  and and the Civil Judge had no jurisdiction to  try such  suit  so  the plaint Should  have  been  returned  for presentation  in  the proper court. It was  further  alleged that  the  court fees paid by the plaintiffs  was  also  not sufficient. Moreover, it was not true that the father of the plaintiffs was of weak economic condition. The grand  father of  the  plaintiffs was an Advocate and the  father  of  the plaintiffs was the clerk of an Advocate. The plaintiff No. l was also working as an Advocate at the time of the mortgage. so they knew the legal position. 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. So  long  term mortgage  and  the  conditions  for  reconstruction  of  the property  could not amount to clogs on equity of  redemption of  mortgage  it  was  the case  of  the  mortgagees  and/or tenants.  The mortgagees did not take any, it  was  pleaded. undue  advantage and they were not present  physically  when the  transaction took place through their power of  attorney holders  If  the  conditions in the mortgage  deed  did  not amount  to clogs on equity of redemption, the suit would  be clearly  premature. It may be mentioned that  the  plaintiff No.  1  had  subsequently  become  a  Civil  Judge  and  was ultimately the Chairman of the Tribunal so if the said terms and conditions of the mortgage were onerous and  oppressive, he  would  not have sat idle for 29 years. But  he  remained silent  because he was aware of the custom, It was  pleaded. It  was alleged that the prices of immovable properties  had increased  tremendously, therefore, th. suit had been  filed with  mala fide intention. It was averred that in  case  the Court  came to the conclusion that there was clog on  equity of  redemption  and  the plaintiffs  were  entitled  to  the                                                   PG NO 837 redemption,  then  the  interest on 10,000 koris  should  be awarded  to the mortgagees. In the premises, it was  averred that  the suit should be dismissed as there was no  clog  on equity  of redemption and the court had no  jurisdiction  to try  the  suit  The Trial  Court  then  recorded  additional evidence in the suit and ultimately decreed the suit on 28th September, 1978. The Trial Court came to the conclusion that there  was  mortgage transaction between the father  of  the plaintiffs  and  Soni Shivji Jetha and Lalji Mulji  on  20th April, 1943. The Trial Court further came to the  conclusion that  the  terms and conditions 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.  The Trial Court also came to the conclusion that the sisters  of the  plaintiffs were not necessary parties to the  suit  and even  if  they were necessary parties,  a  co-mortgagor  was entitled  to file the suit for redemption, so the  suit  was not  bad for want of non-joinder of necessary  parties.  The Trial  Court  further  came to the conclusion  that  it  had jurisdiction  to try the suit and held that  the  mortgagees were not entitled to claim interest on 10,000 koris. It  was further  directed  that  the  plaintiffs  were  entitled  to recover possession from the defendants Nos. 4 to 9 who  were the  tenants  inducted  by the  mortgagees.  Accordingly,  a preliminary decree was passed in the suit.     Aggrieved  thereby  the mortgagees filed  Regular  Civil Appeal No. 149/78 and the tenants filed Regular Civil Appeal

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No.  150/78. These were disposed of by the judgment  of  the first  Appellate  Court  The  learned  Judge  of  the  first Appellate Court framed the following issues:     "(1)  Whether the terms and conditions in  the  mortgage deed dated 20.4.1943 amount to clog on equity of redemption?      (2)  Whether  the  decree passed is  bad  for  want  of jurisdiction with trial court?      (3) Whether the mortgagees are entitled to get interest on 10,000 koris?      (4)  Whether the tenants are protected from the  effect of  redemption decree by virtue of the provisions of  Bombay Rent Act?                                                   PG NO 838     (5)  Whether  the decree passed by the  trial  court  is legal and proper?     (6) What order?"     It  is not necessary any longer in view of the  findings made and the subsequent course of events to detain ourselves on all the issues. For the purpose of the present appeal  is well  as  the connected appeals we are  concerned  with  two issues,  namely, Issue Nos. 1 and 4 stated above,  in  other words, whether the terms and conditions 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. The  learned  Assistant Judge  in  the  first appeal had noted that it  was  not  in dispute that the document. Ext. 103 dated 20th April,  1943, the certified copy of which was also produced at Ext. 51 was executed  by  the  father of the  plaintiffs  in  favour  of Kansara  Soni Shivji Jetha. According to this  document,  an usufructuary  mortgage was created on the suit property  for 20,000 koris and the possession was to  be delivered to  the mortgagees.  Over and above that a further amount of  10,000 koris was also paid to the mortgagor for which he had to pay interest at the rate of 1/2 per cent per month. The mortgage period  was fixed for 99 years and after the expiry of  that period,  the mortgagor had to pay 30,000 koris as  principal amount  along with interest due on 10,000 koris. This was  a registered document and it was  acted upon by the parties.     The  learned Trial Judge held that the long term  of  99 years  for  redemption  coupled  with  other  circumstances, indicated that there was clog on equity of redemption It was argued that the long term for redemption was not necessarily a  clog  on  equity of redemption.  Certain  deeisions  were referred to. The Trial Court noted that there was no quarrel with the proposition of law that long term itself could  not amount  to  clog on equity of redemption, when  the  bargain otherwise was reasonable one and the mortgagee had not taken any  undue or unfair advantage. But, if in a  mortgage  with long  term of redemption, there were other circumstances  to suggest  that  the  bargain was  unreasonable  one  and  the mortgagee  had taken unfair advantage, then  certainly  long term  also  will be clog on equity of redemption.  It  is  a question  to  be  judged in the  light  of  the  surrounding circumstances.  It  may  be  noted here  that  there  was  a condition  in the mortgage deed permitting  construction  of structure after demolishing the existing structure, costs of which were to be paid by the mortgagor. After examining  the                                                   PG NO 839 facts and the relevant decisions,  the first Appellate Court came  to the conclusion that the terms were  oppressive  and harsh  and  there was clog on equity of redemption  and  the mortgagor should be freed from that bondage.     Shri  Rajinder Sachar, Shri B.K. Mehta as well  as  Shri

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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. 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  condition  permitting  the  mortgagee  to reconstruct  the whole premises was natural  consequence  of long  term and that should not be treated as clog on  equity of redemption. The learned Assistant Judge had rejected  the similar  contention  made  before  him  on  behalf  of   the mortgagees  and  tenants  in view of the  decisions  of  the Gujarat  High  Court  which were also arising  out  of   the decisions in the suits filed in Kutch district and in  those cases  it  was  held  that  there  was  clog  on  equity  of redemption.  We  will  deal  with  some  Gujarat   decisions separately, presently. The learned Assistant Judge  referred to  another circumstance i.e., to the condition of  mortgage which  indicated  the  oppressive nature of  the  term.   By mortgage  deed  being  Ext. 103  usufructuary  mortgage  was created  for  20,000 koris only and additional  mortgage  of 10,000  koris was also created for which the  mortgagor  had to  pay interest at the rate of 1/2 per month.  Furthermore, the   mortgagor  was  not  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.  Naturally, there would be hugh  accumulation of interest which for all practical probabilities in most of the  cases  will be an impossibility to discharge.   It  was held  that  the  purpose was to ensure  that  the  right  of redemption could never be exercised.  On the other hand,  it was  contended before the learned Assistant Judge  that  the transaction  was bona fide because reasonable  consideration was  paid  as mortgage money.  They was  no  direct  contact between the mortgagor and the mortgagee.  There could not be any  collusion.   The mortgagees were abroad.   The  learned Assistant  Judge  examined  the evidences  of  one  Madhavji Shivji  Soni  in  order to  show  comparable  instances  for reasonableness of the consideration.  The learned  Assistant Judge  after  discussing  the  evidence  proceeded  on   the assumption that the consideration paid as mortgage money was reasonable and proper and, according to him, it did not make any difference if the other conditions in the mortgage  deed were found to be oppressive and amounting to clog on  equity of redemption.                                                   PG NO 840     Attention  of the learned Assistant Judge was  drawn  to the  fact that this was a bona fide transaction at the  time when  made,  but  subsequently,  the  prices  of   immovable properties  increased so the plaintiffs had come forward  to file  suits after a lapse of long time. It  was  highlighted that the plaintiff No. I was serving as a Civil Judge and if he  came  to know that the transaction was  oppressive,  he would  not  have  sat  idle for  such  for  a  long  period. Reference  was  made to the decision of this Court  in  Seth Ganga Dhar v. Shankar Lal & Ors., [1959] S.C.R. 509. We will examine that decision in detail. The learned Assistant Judge came to the conclusion on point No. 1 that there was clog on equity of redemption and accordingly answered the Issue  No. 1  in  the  affirmative. With the other issues  we  are  not concerned in this appeal except Issue No. 4. Regarding Issue No.  4, as mentioned hereinbefore, which is on the  question whether  the  tenants  are  protected  from  the  effect  of redemption decree by virtue of the provisions of the  Bombay Rent  Act,  it may be mentioned that the tenants  had  filed

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regular  civil  appeal and it was urged before  the  learned Assistant Judge that even if the mortgage was redeemed,  the tenants  inducted  by the mortgagees would  be  entitled  to continue in     possession of the properties in question  as they were protected by the provisions of the said Rent  Act. There  was no dispute in this case and in the facts  of  the other  three appeals that thc tenants were inducted  by  the mortgagees after the mortgage was created. It is  also  true that  in all these mortgage deeds, there was provision  that the mortgagees were competent to lease out the suit property and if in exercise of that power, they inducted the  tenants in the suit properties, their tenancies would not come to an end on the redemption of mortgage, it was argued.  The  Full Bench  of  the  Gujarat High Court in  Lalji  Purshottam  v. Thacker  Madavji Meghaji, 17 Gujarat Law Reporter  497  held that  the mortgagee in possession might lease the  property, but  authorisation to the mortgagee to let out the  property to  any  other tenant would not amount to  an  intention  to create  tenancy beyond the term of mortgage.  Following  the said  decision, however, it was held that the tenant had  no right  to  be  in possession and was  not  entitled  to  the protection  of the Bombay Rent Act after the  redemption  of the mortgage.  The appeal was accordingly disposed of.     As mentioned hereinbefore, there was a second appeal  to the  High  Court and thc High Court expressed  the  view  in brief  order and dismissed the second appeal on 26th  April, 1982  It  appears,  however,  that  in  second  appeal   two questions  were agitated, (1) the question  of  jurisdiction and Damdupat and (2) the tenants’ right to be in possession. So  far  as the question of jurisdiction and  Damdupat,  the High Court observed that the Assistant Judge was right. This                                                    PG NO 841 point  is not before us in this appeal under Article 136  of the  Constitution. So far as the question of tenants’  right to  be in possession after the redemption of  mortgage,  the High Court followed the decision in Khatubai Nathu Sumra  v. Rajgo Mulji Nanji and others, (supra).      Before  we  deal  with  the question  of  law  and  the respective  submissions, we may briefly so far  as  relevant for  the  present purpose refer to the facts  of  the  other three appeals.      Civil  Appeal  No.  9993 of 1983 is an  appeal  by  the tenant  arising out of the Regular Civil Appeal No.  150  of 1978  before  the learned Assistant Judge, Kutch,  at  Bhuj, referred  to  hereinbefore.  The facts  have  been  set  out hereinbefore and it is not necessary to reiterate these.  We will deal with the contentions in respect of the same at the appropriate stage.      Civil  Appeal No. 397 of 1980 is also an appeal by  the tenant.  It arises from the judgment and order of  the  High Court of Gujarat, dated 7th November, 1978 in Civil Revision Application  No.  1447 of 1978. One Naranji  Nanshi  Thacker (hereinafter referred to as the decree-holder) instituted  a Regular  Civil  Suit  No. 10 of 1968 in  the  Court  of  the learned  Civil Judge (J.D.), Bhuj. The suit  was  originally dismissed  on  29th  November,  1967.  It  was  a  suit  for redemption of the mortgaged property located in the town  of Bhuj. Thereupon, the respondent No. I preferred an appeal to the   District  Judge  where  the  suit  was  decreed.   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 November,  1974.  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

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three months on the decree-holder making payment of dues  in respect  of the mortgage in the Court. In pursuance  of  the final  decree  the  decree-holder  took  out  the  execution proceedings and deposited the dues in the Court. 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.  The  notice  was  issued  to Shambhulal  Vallabhji,  who appeared before  the  Court  and submitted  his  obJections  stating that  he  was  a  tenant protected  by  law  and  he could  not  be  evicted  in  the execution  of the decree obtained by the  decree-holder.  He also stated that he was entitled to get the protection under the Bombay Rent Control Act.                                                    PG NO 842 The learned District Judge held that there was no conduct on the  part  of the decree-holder which would estop  him  from claiming   physical  possession  from  the  tenant  of   the mortgagee  in  possession. It was contended  that  when  the mortgagee  leased  out  the  mortgaged  property  under  the ordinary  prudent management of the mortgaged  property  the mortgagor on redemption of the mortgage was not entitled  to recover physical possession of the property from the tenant. The learned Judge negatived this contention. The High  Court rejected the appeal summarily. Hence, this appeal.      Civil Appeal No. 1286 of 1981 is also an appeal by  the tenant.  The appellant is the tenant of the  mortgagee.  The plaintiffs   Nos.   1  to  6  are  the   heirs   and   legal representatives of deceased Mehta Kanji Bhagvanji. It may be mentioned  that the tenant was inducted by the mortgagee  in 1955.  The  property was mortgaged in 1948 for a  period  of five  years.  It  appears, therefore, that  the  tenant  was inducted  after  the period of redemption had  expired.  The mortgagor had a right to redeem after the expiration of  the mortgage.  It  was contended that though the  mortgagee  had inducted  tenants  in  the suit property with  a  mala  fide intention on the part of the mortgagee, it was still an  act of  prudent  management. The first Appellate  Court  on  the question before us, namely, whether the tenant was protected by  the  Bombay  Rent  Act, came  to  the  conclusion  after discussing  all  the relevant evidence and  relying  on  the decision  of  the  Lalji  Purshottam  v.  Thacker   Madhavji Meghaji   (supra)  that the tenants were  not  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 .      Shri  Rajinder  Sachar  appearing  for  the  appellant- mortgagee in Special Leave Petition (Civil) No. 8219 of  19X 2  drew  our  attention to the  evidence  of  Vrajlal  which appears  at page 163 of the Special Leave  Petition  (Civil) No.  8219/82  wherein he stated about the execution  of  the documents. He stated that when document, Exhibit No. 51  was made, his father’s economic (financial) position was bad. On his  father,  there was a debt of 12,000  koris  of  Kansara Motilal Madhavji. There was also sundry debt of 7,000--8,000 koris. His father was an Advocate in Kutch since old  times. He  was  in  service.  The  younger  brother  was  studying. Therefore,  father-mortgagor  was in need of money,  it  was clear. Motilal Madhavji was pressing for his debt. They were staying in suit property and had no property except the suit property. He tried to explain the circumstances in which the mortgage deed was executed.                                                    PG NO 843      Shri  Sachar drew our attention to the observations  of the  Judicial  Committee in the case of Aziz  Khan  v.  Duni

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Chand  and  others, A.I.R. 1918 P.C. 48, where it  was  held that even where the transaction in question was  undoubtedly improvident in the absence of any evidence to show that  the money-lender had unduly taken advantage of his position,  it was  difficult  for  a Court of justice to  give  relief  on grounds of simple hardship. Shri Sachar tried to urge in the facts and circumstances of the instant case that there is no evidence to lead to the conclusion that  there was any undue influence.   Great  deal  of  reliance,  however,   by   the appellants  as  well as the respondents was  placed  on  the observations of this Court in Seth Ganga Dhar v. Shankar Lal & others, (supra). There, this Court observed that the  rule against clog on equity of redemption embodied in section  60 of the Transfer of Property Act empowers the Court not  only to  relieve  a  mortgagor of a bargain  whereby  in  certain circumstances  his  right to redeem the mortgage  is  wholly taken  away,  but also where that right is  restricted.  The extent  of  the  latter power is, however,  limited  by  the reason  that  gave rise to it,  namely,  the  unconscionable nature  of the bargain, which, to a court of  equity,  would afford sufficient ground for relieving the mortgagor of  his burden, and its exercise must, therefore, depend on  whether the   bargain,  in  the  facts  and  circumstances  of   any particular case, was one imposed on the mortgagor by  taking advantage of his difficult and impecunious position at  the time  when he borrowed the money. In that case it  was  held that  in a suit for redemption where the mortgage  deed,  by two  distinct  and  independent  terms  provided  that   the mortgage  would not be redeemed for eightyfive  years  all(l that it could be redeemed only after that period and  within six  months  thereafter, failing which the  mortgagor  would cease  to have any claim on  the mortgaged property and  the mortgage deed would be deemed to be a deed of sale in favour of the mortgagee, and it was clearly evident from the  facts and  circumstances  of the case that the bargain  was  quite fair and as between parties dealing with each other on equal footing. 1. was held that the term providing for a period of eightyfive years was not a clog on the equity of  redemption and  the mere length of the period could not by itself  lead to an inference that the bargain was in any way oppresive or unreasonable.  The term was enforceable in law and the  suit for  redemption  filed before the expiry of the  period  was premature.  It  was further held that the term that  on  the failure of  the mortgagor to redeem  within  the  specified period of six months. he  would lose his right to do so  and the  mortgage deed was to be deemed to be a deed of sale  in favour  of the mortgagee, was clearly a clog 011 the  equity of  redemption and as such invalid but its invalidity  could not  in any way affect the validity of the other term as  to the  period  of  the  mortgage, that  stood  apart.  It  was                                                    PG NO 844 explained  by Sarkar, J. as the learned Chief  Justice  then was, that the rule against clogs on the equity of redemption is  that,  a  mortgage  shall always  be  redeemable  and  a mortgagor’s right to redeem shall neither be taken away  nor be  limited  by  any  contract  between  the  parties.  This principle  was  clearly established by the  observations  of Lindley  M.R. in Santley v. Wilde, [1899] 2 Ch.  474.  where the Master of Rolls observed as follows:      "The  principle is this: a mortgage is a conveyance  of land  or  an assignment of chattles as a  security  for  the payment of a debt or the discharge of some other  obligation for  which it is given. This is the idea of a mortgage:  and the  security is redeemable on the payment or  discharge  of such  debt  or  obligation, any provision  to  the  contrary

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notwithstanding.  That,  in  my opinion,  is  the  law.  Any provision  inserted  to  prevent redemption  on  payment  or performance of the debt or obligation for which the security was given is what is meant by a clog or fetter on the equity of  redemption and is therefore void. It follows from  this, that "once a mortgage always a mortgage".      The  right  of redemption, therefore, cannot  be  taken away.  The  Courts will ignore any contract  the  effect  of which is to deprive the mortgagor of his right to redeem the mortgage.  It  was  further reiterated at page  515  of  the report  in  Seth  Ganga Dhar’s case (supra)  that  the  rule against clogs on the equity of redemption no doubt  involves that  the Courts have the power to relieve a party from  his bargain.  If  he has agreed to forfeit wholly his  right  to redeem  in  certain circumstances, that  agreement  will  be avoided.  But  the Courts have gone beyond this.  They  have also relieved mortgagors from bargains whereby the right  to redeem has not been taken away but restricted. It is a power evolved by the early English Courts of Equity for a  special reason.  All  through  the  ages  the  reason  has  remained constant  and  the Court’s power is, therefore,  limited  by that reason. The extent of this power has, therefore, to  be ascertained by having regard to its origin. It is better  to refer  to the observations of Northington L.C. in Vermon  v. Bethell,  28  E.R.  838 and 839.  Lord  Chancellor  observed therein 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 take it to be  an established rule, that a mortgagee can never provide at the                                                    PG NO 845 time of making the laon for any event or condition on  which the  equity  of  redemption shall  be  discharged,  and  the conveyance  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 exigency, will submit  to any terms that the craft may impose upon them."      The  same view was reiterated by Viscount Haldane  L.C. in  G.  and  C. Kreglinger v. New Patagonia  Meat  and  Cold Storage Company  Ltd., [1914] Appeal Cases 25, where it  was observed at pages 35 and 36 of the report as follows:      "This jurisdiction was merely a special application  of a  more  general power to relieve against penalties  and  to mould them into mere securities. The case of the common  law mortgage  of  land  was indeed a gross  one.  The  land  was conveyed  to  the creditor upon the condition  that  if  the money  he had advanced to the feoffor was repaid on  a  date and  at  a place named, the fee simple would revest  in  the latter,  but  that  if the condition was  not  strictly  and literally  fulfilled he should lose the land for ever.  What made  the hardship on the debtor a glaring one was that  the debt  still remained unpaid and could be recovered from  the feeoffor notwithstanding that he had actually forfeited  the land  to the mortgagee. Equity, therefore, at an early  date began  to  relieve against what was virtually a  penalty  by compelling  the  creditor to use his legal title as  a  mere security.      My Lords, this was the origin of the jurisdiction which we  are  now considering, and it is important to  bear  that origin  in  mind.  For  the  end  to  accomplish  which  the jurisdiction has been evolved ought to govern and limit  its exercise  by  equity  judges. That end has  always  been  to ascertain, by parol evidence if need be, the real nature and substance of the transaction, and if it turned out to be  in truth one of mortgage simply, to place  it on that  footing.

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It  was,  in ordinary cases, only where  there  was  conduct which the Court of Chancery regarded as unconscientious that it  interfered  with  freedom of contract.  The  lending  of money,  on  mortgage  or  otherwise,  was  looked  on   with suspicion,  and the court was on the alert to discover  want of con-science in the terms imposed by lenders."                                                    PG NO 846      The  reason justifying the Court’s power to  relieve  a mortgagor  from  the effects of his bargain is its  want  of conscience. Putting it in more familiar language the Court’s jurisdiction to relieve a mortgagor from his bargain depends on  whether  it  was obtained by  taking  advantage  of  any difficulty or embarrassment that he might have been in  when he borrowed the moneys on the mortgage. Length of the  term, according  to Sarkar, J. in the aforesaid decision, was  not by itself oppressive and could not operate as a clog on  the equity of redemption. There was a term in the mortgage  deed that  the mortgagees could spend any amount on  repairs  and those  expenses  would  be paid, according  to  the  account produced  by the mortgagees. All that it meant was  that  in claiming  moneys on account of repairs and construction  the mortgagees  had  to show from their accounts that  they  had spent  these moneys. This Court on that basis held that  the clause  which provided that the mortgage had to be  redeemed within  the  specified  period of six months  was  bad.  The principle,  however,  is that it was not  an  unconscionable bargain  and it did not in effect deprive the  mortgagor  of his right to redeem the mortgage or so to curtail his  right to  redeem  that  it  has  become illusory and  non-existent, then there was no clog on equity of redemption. It has to be borne  in mind that the English authorities relied  upon  by Sarkar,  J. and the principles propounded by this  Court  in the  case  of Seth Ganga Dhar’s, case (supra)  were  in  the background  of  a  sedate and fixed state  of  affairs.  The spiral and escalation of prices of the immovable  properties was   not  then      there.  Today,  perhaps,  a   different conspectus would be required to consider the right to redeem the  property after considerable length of time pegging  the price to a small amount of money, the value of which is fast changing. The  rights and liabilities of the mortgagor are  controlled by the provisions of section 60 of the Transfer of  Property Act, 1882. The clog on redemption has been noted in  Mulla’s Transfer  of  Property  Act. 7th Edition, page  401  that  a mortgage  being  a  security  for the  debt,  the  right  of redemption continues although the mortgagor fails to pay the debt  at due date. Any provision inserted to prevent,  evade or  hamper redemption is void. That is implied in the  maxim "once a mortgage always a mortgage". Collins, M.R. in Jarrah Timber  & Wood Paving Corporation v. Samuel, [1903] 2 Ch.  1 at  page 7 observed that it is the right of a  mortgagor  on redemption,  by reason of the very nature of a  mortgage  to get  back the subject of the mortgage and to hold and  enjoy as he was entitled to hold and enjoy it before the mortgage.                                                    PG NO 847      The  doctrine  clog on the equity of redemption"  is  a rule  of  justice, equity and good conscience.  It  must  be adopted in each case to the reality of the situation and the individuality  of the transaction. We must take note of  the time, the condition, the price spiral, the term bargain  and the  other  obligations in the background of  the  financial conditions  of  the parties. Therefore, in our  opinion,  in view  of the evidence it is not possible to hold that  there was no clog on the equity of redemption in these cases.      A very large number of decisions have been cited at the

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Bar. Shri T.U. Mehta, Shri Rajinder Sachar, Shri B.K.  Mehta and  Shri Dholakia very ably and painstakingly  argued  this case in respect of their cotentions.      Our  attention  was drawn to the  observations  of  the Allahabad  High Court in Chhedi Lal v. Babu  Nandan,  A.I.R. 1944  Allahabad  204 where it was held  that  the  provision inserted to prevent redemption on payment or performance  of the  debt or obligation for which security was given, was  a clog  on equity of redemption. Condition in mortgage was  in that  case  that if mortgagee constructed  new  building  by demolition   of   mortgaged  property  which   was   kachcha structure,  mortgagor would pay cost of construction at  the time  of  redemption. Stipulation in  circumstances  of  the case,  it  was  held, did not amount to clog  on  equity  of redemption.  It was argued before us by th. mortgagees  that the  provision for the payment towards cost and expenses  of repairs  and  construction did not amount to a clog  on  the equity  of redemption because the repairs  and  construction were  to  be  effectuated  to  keep  the  property  in  good condition.  In the aforesaid decision Verma, J. at page  207 of the report observed that in the case before the Court it was  not pleaded that any pressure and undue  influence  had been exercised upon the mortgagors. Verma. J referred to the observations  of  the  Viscount  Haldane  L.C.  in  G  &  C. Kreglinger  v.  New Patagonla Meat and  Cold  .Storage  Co., (supra)  and Lindley M.R. in Santley v. Wilde, (supra).  Sir Tej Bahadur Sapru argued before Verma, J. that it is not his contention  that the mortgagee in this case tried to gain  a collateral  advantage. His argument was that a onerous  term has been incorporated in the deed which placed such a burden on the mortgagor as to make it impossible for him to redeem. There is a freedom of contract between the mortgagor and the mortgagee as observed by Verma, J. at page 207 of the report We  must, however, observe that we live in a  changed  time. Freedom of contract is permissible provided it does not lead to  taking advantage of the oppressed or  depressed  people. The  law  must  transform itself to  the  social  awareness.                                                    PG NO 848 Poverty  should  not be unduly permitted  to  curtail  one’s right  to borrow money on the ground of justice, equity  and good  conscience  on  just terms. If it  does,  it  is  bad. Whether it does or does not, must, however, depend upon  the facts and the circumstances of each case.      Reference  was  also be made to the case of  Bhika  and Anr.  v. Sheikh Amir and Ors., A.I.R. 1923 Nagpur  60  where there  was no provision under which power was given  to  the executant  of the Deed to pay off the amount which  was  the consideration  for  the  Deed, and no accounts  were  to  be rendered  or  required. It was held that relief  against  an agreement  forming  a clog on the equity of  redemption  can only  be obtained if it was  challenged within a  reasonable time. It was an equitable relief which cannot be granted  as a matter of course. In that decision Sri Vivian Bose, as the learned  counsel appearing for the appellant  unsuccessfully sought  to obtain relief against an agreement  containing  a clog on the equity of redemption.      Whether  in  the facts and the circumstances  of  these cases,  the  mortgage transaction amounted to  clog  on  the equity  of redemption, is a mixed question of law and  fact. Courts do not look with favour at any clause or  stipulation which  clogs equity of redemption. A clog on the  equity  of redemption  is  unjust and unequitable.  The  principles  of English law, as we have noticed from the decisions  referred to  hereinbefore which have been accepted by this  Court  in this country, looks with disfavour at clogs on the equity of

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redemption.  Section 60 of the Transfer of Property Act,  in India, also recognises the same position.      It is a right of the mortgagor on redemption, by reason of the very nature of the mortgage, to get back the  subject of the mortgage and to hold and enjoy as he was entitled  to hold  and enjoy it before the mortgage. If he  is  prevented from  doing so or is prevented from redeeming the  mortgage, such  prevention is bad in law. If he is so  prevented,  the equity  of redemption is affected by that whether  aptly  or not, and it has always been termed as a clog. Such a clog is inequitable.  The law does not countenance it.  Bearing  the aforesaid  back-ground in mind, each case has to  be  judged and decided in its own perspective. As has been observed  by this Court that long-term for redemption by itself, is not a clog on equity of redemption. Whether or not in a particular transaction  there  is  clog on the  equity  of  redemption, depends  primarily  upon  the  period  of  redemption,   the circumstances  under  which the mortgage  was  created,  the economic  and financial position of the mortgagor,  and  his                                                    PG NO 849 relationship  vis-a-vis him and the mortgagee, the  economic and   social  conditions  in  a  particular  country  at   a particular  point of time, custom, if any, prevalent in  the community  or  the society in which  the  transaction  takes place,  and the totality of the circumstances under which  a mortgage  is created, namely, circumstances of the  parties, the  time, the situation, the clauses for redemption  either for payment of interest or any other sum, the obligations of the  mortgagee  to  construct  or  repair  or  maintain  the mortgaged  property  in cases of  usufructuary  mortgage  to manage as a matter of prudent management, these factors must be  co-related to each other and viewed in  a  comprehensive conspectus   in  the  background  of  the  facts   and   the circumstances  of each case, to determine whether these  are clogs on equity of redemption.      These principles have been recognised by this Court  in Ganga  Dhar v. Shankar Lal (supra). It has also to be  borne in  mind  that  long-term  for  redemption  in  respect   of immovable properties was prevalent at a time when things and the  Society were, more or less, in a static  condition.  We live  in changing circumstances. Mortgage is a  security  of loan.  It  is an axiomatic principle of life  and  law  that necessitous men are not free men. A mortgage is  essentially and  basically  a  conveyance in law  or  an  assignment  of chattels  as  a  security for the payment  of  debt  or  for discharge  of some other obligation for which it  is  given. The  security must, therefore, be redeemable on the  payment or  discharge of such debt of obligation. Any  provision  to the  contrary, notwithstanding, is a clog or fetter  on  the equity  of  redemption  and, hence, bad and  void.  "Once  a mortgage  must  always remain a mortgage", and must  not  be transformed  into a conveyance or deprivation of  the  right over the property.      This is the English law based on principles of  equity. This  is  the Indian law based on justice, equity  and  good conscience. We reiterate that position. Though, long-term by itself  as the period for redemption, is not  necessarily  a clog  on  equity  but  in  the  changing  circumstances   of inflation  and  phenomenal increase in the  prices  of  real estates,   in   this   age   of   population-explosion   and consciousness  and need for habitat, long-term,  very  long- term,  taken  with other relevant factors,  would  create  a presumption  that it is a clog on equity of  redemption.  If that is the position then keeping in view the financial  and economic  conditions of the mortgagor, the  clause  obliging

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the  payment  of  interest  even  in  case  of  usufructuary mortgage  not  periodically  but at  the  time  of  ultimate redemption imposing a burden on the mortgagor to redeem, the clauses  permitting construction and reconstruction  of  the                                                    PG NO 850 building in this inflationary age and debiting the mortgagor with an obligation to pay for the same as an obligation  for redemption, would amount to clog on equity.      Section  60  of  the Transfer of  Property  Act,  1882, conferred on the mortgagor the right of redemption. This  is a statutory right. The right of redemption is an incident of a  subsisting  mortgage  and  it subsists  so  long  as  the mortgage subsists. See the observations in R. Ghose "Law  of Mortgage" 6th Edn. page 227.      Whether  in a particular case there is any clog on  the equity  of  redemption,  has to be decided in  view  of  its background  of the particular case. The doctrine of clog  on equity  of  redemption  has  to be  moulded  in  the  modern conditions.   See  Mulla: ’Transfer of Property  Act’,  17th Edn.  402.  Law  does  not favour  any  clog  on  equity  of redemption.      It  is  a settled law in England and in  India  that  a mortgage   cannot   be  made  altogether   irredeemable   or redemption  made  illusory.  The law  must  respond  and  be responsive  to  the  felt  and  discernible  compulsions  of circumstances  that would be equitable, fair and  just,  and unless  there  is anything to the contrary in  the  Statute, Court must take cognisance of that fact and act accordingly. In  the context of fast changing circumstances and  economic stability,  long-term  for redemption makes  a  mortgage  an illusory  mortgage,  though not decisive.  It  should  prima facie  be  an  indication  as to  how  clogs  on  equity  of redemption should be judged. In  the facts and the circumstances and in view of the  long period for redemption, the provision for interest (1/2%  per annum payable on the principal amount at the end of the long period,  the  clause  regarding the repairs  etc.,  and  the mortgagor’s  financial  condition, all  these  suggest  that there was clog on equity. The submissions made by Mr. Sachar and Mr. Mehta are, therefore, unacceptable.      In that view of the matter, we are of the opinion  that the  decision of the High Court as well as the Courts  below that there existed clog on the equity of redemption in  case of  these mortgages, is correct and proper, and we  hold  so accordingly. Before  we dispose of the contentions on the second  aspect, we must deal with some of the decisions of the Gujarat  High Court  to  which reference had been made and some  of  which also referred before us. We have noticed the decision of the                                                    PG NO 851 Gujarat  High Court in Khatubai Nathu Sumra v.  Rajgo  Mulji Nanji and others, (supra). In Maganlal Chhotalal Chhatrapati and  Ors.  v. Bhalchandra Chhaganlal Shah,  15  Gujarat  Law Reporter  193. P.D. Desai, J. as the learned  Chief  Justice then  was, held that the doctrine of clog on the  equity  of redemption  means that no contract between a  mortgagor  and mortgagee made at the time of the mortgage and as a part  of the  mortgage transaction or, in other words, as a  part  of the  loan,  would  be valid if it in  substance  and  effect prevents  the  mortgagor from getting back his  property  on payment  of  what is due on his security. Any  such  bargain which  has  that  effect  is  invalid.  The  learned   Judge reiterated  that  whether  in a particular  case  long  term amounted  to  a clog on the equity of redemption had  to  be decided  on  the  evidence on record which  brings  out  the

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attending   circumstances  or  might  arise   by   necessary implication  on a combined reading of all the terms  of  the mortgage.  The  learned Judge found that this long  term  of lease along with the cost of repairing or reconstruction  to be paid at the time of redemption by the mortgagor indicated that  there  was clog on equity of redemption.  The  learned Judge  referred  to  certain  observations  of  Mr.  Justice Macklin  of the Bombay High Court where Justice Macklin  had observed  that  anything which does have the  appearance  of clogging redemption must be examined critically, and that if the  conditions in the mortgage taken as a whole  and  added together do create   unnecessary difficulties in the way  of redemption it seems that is a greater or less clog upon  the equity  of  redemption within the ordinary  meaning  of  the term.  In  our opinion, such observations  will  apply  with greater force in the present inflationary market. The  other decision  to which reference may be made is the decision  of the  Gujarat  High  Court in Soni Motiben  v.  M/s.  Hiralal Lakharnshi,   22  Gujarat  Law  Reporter  473.   This   also reiterates  the same principle. In Vadilal  Chhaganlal  Soni and  Others  v.  Gokaldas Mansukh and  Others,  A.I.R.  1953 Bombay 408 also, the same principle was reiterated. In  that case, it was held by Gajendragadkar J., as the learned Chief Justice  then was, that the agreement between the  mortgagor and  mortgagee  was  that the mortgagor was  to  redeem  the mortgage 99 years after its execution and the mortgagee  was given  full  authority to build any structure  on  the  plot mortgaged  after  spending any amount he liked It  was  held that the two terms of the mortgage were so unreasonable  and oppressive  that  these amounted to clog on  the  equity  of redemption.  Similar  was the position in the case of Sarjug Mahto and other. v. Smt. Devrup Devi and Others  A.I.R. l963 Patna  114,  where also the mortgage was for  99  years.  In Chhedi  Lal  v.  Babu  Nandan’s  case  (supra),  the   court reiterated that freedom of contract unless it is vitiated by undue  influence or pressure of poverty should be  giver.  a                                                    PG NO 852 free  play.  In  the  inflationary  world,  long  term   for redemption would prima facie raise a presumption of clog  on the  equity  of  redemption. See also  the  observations  in Rashbehary  Ghose’ ’Law of Mortgage’ 6th Edn. pages 227  and 228.      Bearing  the  aforesaid  principles  in  mind  we  must analyse  the  facts involved in these appeals. It  has  been noticed  in  S.L.P. (Civil) No. 8219 of 1982 that  the  High Court  of  Gujarat by its order impugned had  dismissed  the second  appeal.  The  High  Court  had  merely  observed  in dismissing the second appeal that the First Appellate  Court had  followed  the  decision of the Gujarat  High  Court  in Khatubai  Nathu  Sumra  v. Rajgo  Mulji  Nanji  and  Others, (supra).  We  have noted the salient features  of  the  said decision.  The  High Court, therefore, found  no  ground  to interfere with the decision of the First Appellate Court and accordingly dismissed the second appeal. The First Appellate Court  by its judgment disposed of Civil Regular Appeal  No. 149 of 1978 and another civil appeal which was the appeal by the  tenant was also disposed of by the said  judgment.  The learned  Judge  of the Appellate Court had referred  to  the ratio  of the decision in Gangadhar v.  Shankerlal  (supra). The  learned  Judge  bearing in mind the  principle  of  the aforesaid decision and the relevant clause of Ext. 103  came to  the conclusion that the clauses amounted to clog on  the equity of redemption in the facts of this case. Shri Sachhar tried  to urge before us that on the evidence and the  facts in  this case having regard to the position of the  parties,

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the  transaction  did not amount to clog on  the  equity  of redemption.  It was emphasised by the First Appellate  Court that  the  fact that the son of the  mortgagor  subsequently became  Civil  Judge would not affect the  position  because what was relevant was the financial condition at the time of the transaction. We have further to bear in mind that it has come  out in the evidence that the father of  the  plaintiff was  residing in the suit property at the relevant time  and there  was  no  other  residential  house  except  the  suit property.  The First Appellate Court, therefore,  emphasised in  our opinion rightly that if there was no  pressure  from the creditor, no body would like to mortgage the only  house which is sole abode on the earth.      In that view of the matter and in view of the  position in law, we are of the opinion that the First Appellate Court was right in the view it took. The  First  Appellate  Court referred  to  the  decision  of Kunjbiharilal v. Pandit Prag Narayan, AIR 1922 Oudh 283.  In that  case there was a condition that the  mortgagor  should                                                    PG NO 853 pay interest along with the principal amount at the time  of redemption  after 50 years. It was held that  the  intention was  to  see  that  right  of  redemption  could  never   be exercised.  If the condition was such which would result  in making  redemption rather difficult, if not  impossible,  it would be a dog on the equity of redemption and could not  be enforced.  Similar  was the position of the  Allahabad  High Court in Rajai Singh v. Randhir Singh, A.I.R. 1925 Allahabad 643. There the term fixed for redemption was of 96 years and there  was a stipulation for payment of interest  along-with principal   not  periodically  but  only  at  the  time   of redemption. In the instant case before us the mortgagor  was required  to pay the whole amount of interest at the end  of 99   years  which  will  practically  make  the   redemption impossible. Applying the well-settled principles which  will be  applicable  to  the facts of this  case  in  determining whether  there  was  in  fact  a  clog  on  the  equity   of redemption,  we are of the opinion what the First  Appellate Court  was right in holding that there was a clog on  equity of redemption.      On the second aspect of the question whether the  right of  the  tenants of the mortgagees are protected  after  the redemption  of  mortgage, reliance was placed by  the  First Appellate  Court  on the decision of the Full Bench  of  the Gujarat  High Court in Lalji Purshottam v. Thacker  Madhavji Meghaji,   (supra).  There  urban  immovable  property   was mortgaged  with possession, mortgagee creating lease  during the  subsistence of the mortgage. The question  was  whether after  redemption of mortgage such lease is binding  on  the mortgagor. It was held that Section 76(a) of the Transfer of Property  Act would not apply to such cases. There  must  be express  words  showing an intention if tenancy  was  to  be created beyond the term of the mortgage. Mere reference that mortgagee  is entitled to lease property does not  create  a binding  tenancy on the mortgagor. After the  redemption  of the  mortgage the relationship of landlord and  tenant  does not  exist.  Such  tenant,  therefore,  does  not  get   any protection under section 12 of the Bombay Rent Control  Act, it was held. The Gujarat High Court had referred to  several decisions  of this Court. In Mahabir Gope v. Harbans  Narain Singh,  [1952] SCR 775 which was a decision dealing  with  a lease created by a mortgagee with possession under the Bihar Tenancy Act, this Court reiterated that the general rule  is that  a  person  cannot by transfer or  otherwise  confer  a better  title  on another than he himself has.  A  mortgagee

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cannot,  therefore,  create  an interest  in  the  mortgaged property  which  will enure beyond the  termination  of  his interest  as  mortgagee.  Further the  mortgagee,  who  take possession  of  the mortgaged property, must  manage  it  is Person of ordinary prudence would manage if it were his own;                                                  PG NO 854 and  he  must  not commit any act which  is  destructive  or permanently  injurious  to  the property.  Reliance  may  be placed  for this purpose on section 76, clauses (a) and  (e) of the Transfer of Property Act, 1882. It was held that  the provisions  of sections 20 and 21 of the Bihar Tenancy  Act, did  not apply to the lessees since they were  not  ’settled raiyats’  and  the lessees could not claim to  have  secured under  the  statute  occupancy rights in the  land.  It  was further  held  that  the  mortgagor  was  entitled  to   the possession of the land upon redemption of the mortgage. In a slightly different context in Harihar Prasad Singh v.  Must. of  Munshi  Nath  Prasad, [1956] S.C.R.  1  this  Court  was concerned  with  a  mortgage  with  possession  effected  on agricultural  land.  This  Court had  to  consider  in  that decision  whether under the provisions of the Bihar  Tenancy Act the tenant inducted on the mortgaged property during the pendency  of  the mortgage could claim right  to  remain  in possession  after  the redemption.  Venkatarama  Ayyer,  J., speaking for the Court pointed out that if the tenant  could not  resist  the  suit for ejectment  either  by  reason  of section 76(a) of the Transfer of Property Act or section 2 1 of  the Bihar Tenancy Act, the tenant could not get  such  a right as a result of the interaction of both those sections. This Court ultimately held that the tenants inducted by  the mortgagee with possession had failed to establish that  they had any right of occupancy over the suit lands and that  the plaintiffs  were  entitled to a decree  in  ejectment,  with future mesne profits as claimed in the plaint. Thus a  right claimable  under section 76(a) of the Transfer  of  Property Act  because  of a lease created in the  course  of  prudent management  of the property was put on a  different  footing altogether from a right created by a special statute.      Similarly, in Asa Ram v. Mst. Ram Kali. [1958] SCR 986, the  question  before this Court was again  of  mortgage  of agricultural land when the mortgage was with possession  and of the tenant inducted by the mortgagee with possession.  In Dahya  Lal v. Rasul Mohammed Abdul Rahim, [ 1963] 3  SCR  1, this Court was concerned with the case of a tenant  inducted on  agricultural  land by a mortgagee in  possession.  There under the Bombay Tenancy and Agricultural Lands Act, 1948, a tenant lawfully inducted by the mortgagee on the land  would on  redemption of the mortgage be deemed to be a  tenant  of the  owner mortgagor under section 4 of the  Bombay  Tenancy and Agricultural Act. This Court held that all persons other than those mentioned in clauses (a), (b) and (c) of  section 4  of the Bombay Tenancy and Agricultural Lands  Act,  1948, who  lawfully  cultivated land belonging  to  other  persons whether or not their authority was derived directly from the                                                    PG NO 855 owner of the land must be deemed tenants of the lands  under section 4 of the said Act. So, therefore, the Bombay Tenancy Act required at the relevant time the lawful cultivation  by tenant.  This  Court had also considered  this  question  in Prabhu  v.  Ramdev,   [1966] 3 S.C.R. 676.  There  the  same problem  again  arose in connection with a  person  inducted into  agricultural  land  as a  tenant  by  an  usufructuary mortgagee and the question was whether the rights of such  a tenant  were  protected by the provisions of  the  Rajasthan Tenancy Act, 1955. In view of the special status, the tenant

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in  question was held to be entitled to the  protection.  It must  be noted as observed by the Full Bench of the  Gujarat High Court that all the cases that we have so far considered are  cases of agricultural lands and in each of these  cases the  question was examined from two points;  first,  whether the lease could be said to be a lease granted in the  course of  prudent management and, in the alternative, whether  the rights  of  the  tenant  inducted  by  the  mortgagee   with possession  had  been  enlarged as a  result  of  a  special statute  dealing with the rights of tenants of  agricultural lands.      This  question, however, has been agitated before  this Court  in  the  background  of  the  non-agricultural  lands especially in urban areas. In All India Film Corporation  v. Raja Gyan Nath, [1969] 3 SCC 79, the question was in respect of  lease  of a cinema house granted by the  mortgagee  with possession. Hidyatullah, C.J. delivering the judgment of the Court. observed in paragraph 7 that a general proposition of law  is that no person can confer on another a better  title than  he  himself  has.  A mortgagee is  a  transfer  of  an interest  in specific immovable property for the purpose  of securing  repayment of a loan. A mortgagee’s interest  lasts only  as long as the mortgage has not been paid off. It  was further  observed  by  the learned  Chief  Justice  that  on redemption of the mortgage the title of the mortgagee  comes to  an end. It was held that section 111(c) of the  Transfer of Property Act provides that a lease of immovable  property determines where the interest of the lessor in the  property terminates on, or his power to dispose of the same,  extends only to the happening of any event--by the happening of such event.  The duration of the mortgagee’s interest  determines his position as the lessor. But there is one exception. That flows  from section 76(a) which lays down liabilities  of  a mortgagee  in  possession. It is provided  there  that  when during the continuance of the mortgage, the mortgagee  takes possession  of  the mortgaged property, he must  manage  the property as a person of ordinary prudence would manage it if it were his own. It was observed that this principle applied ordinarily  to the management of agricultural lands and  has been  extended to urban property so as to tie it up  in  the hands  of lessees or to confer on them rights under  special                                                    PG NO 856 statutes. It was emphasised by the Chief Justice that  lease would  continue  to bind the mortgagor or  persons  deriving interest  from him if the mortgagor had concurred  to  grant it.  Ultimately,  this Court in that case held that  on  the termination of the mortgage in the events that had  happened in  that particular case, that since there was  no  landlord and  no tenant, the provisions of the Rent  Restriction  Act could  not apply beyond the date of the termination  of  the mortgagee’s  interest. Similar, is the view in the  case  of Sachalmal Parasram v. Ratnabai, [1973] 3 S.C.C. 198.  There, the question was whether the tenant was protected under  the Madhya  Pradesh Accommodation Control Act, 1961.  The  Court did not accept the rights of the tenant in possession.      The  question  whether  the  tenant  from  usufructuary mortgagee   of  building  was  entitled  to  protection   on redemption of mortgage, was considered by the Full Bench  of the  Madras High Court in S.V. Venkatarama Reddiar v.  Abdul Ghani  Rowther & Ors., A.I.R. 1980 Mad. 276.  There  Justice Natarajan, as the learned Judge then was, of the Madras High Court delivering the judgment of the Full Bench of the  said Court held that if a tenancy was created by a mortgagee with possession, the ties of landlord and tenant were snapped  eo instanti  the  mortgage is redeemed and, unless there  is  a

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fresh  forging  of the relationship of landlord  and  tenant between  the mortgagor and the erst-while tenant by (i)  the voluntary act of the parties or (ii) a deemed forging of the relationship  by  express provision in the Act  itself,  the erstwhile tenant cannot claim protection under the Act so as to  perpetuate his occupation of the building as  a  tenant. The  rule of exception contained in Section 76(a) of the  T. P.  Act  cannot be readily and automatically  invoked  by  a tenant let into possession of urban property by a  mortgagee with  possession.  The principle of  exception  afforded  by section  76(a)  of  that  Act  applies  ordinarily  to   the management  of  agricultural  lands  and  has  seldom   been extended  to urban property so as to tie it up in the  hands of  lessees  or  to  confer on  them  rights  under  special statutes.  It  may be open to a tenant inducted  upon  urban property by a mortgagee with possession to rely upon Section 76(a)  to  claim  tenancy right for the  full  term  of  the tenancy  notwithstanding  the  redemption  of  the  mortgage earlier. But, it is for the person who claims such  benefits to  strictly  establish the binding nature of  the  tenancy, created by the mortgagee, on the mortgagor. Reference may be made to a Full Bench decision of the Rajasthan High Court in Devkinandan  and  another  etc. v. Roshan  Lal  and  others, A.I.R. 1985 Rajasthan 11 where several relevant  authorities have been discussed. The question before the Full Bench  was whether a tenant of a mortgagee in possession is entitled to                                                    PG NO 857 the  protection of the provisions of the Rajasthan  Premises (Control  of  Rent  and  Eviction)  Act,  1950  against  the mortgagor  after  the  redemption  of  the  mortgage.   P.K. Banerjee,  C.J. delivering the judgment of the  Court  after discussing all relevant authorities held that in respect  of tenancy  of  urban property or premises,  the  mortgagee  in possession  has  no  right to jeopardise the  right  of  the mortgagor  by  giving a tenancy which  would  continue  even after  the  redemption  of the mortgage.  This  negates  the submission  that  as  a matter  of  prudent  management  the tenants  had been inducted and after induction  the  tenants got  their rights enlarged. In Lalji Purshottam  v.  Thacker Madhavji  Meghaji,  (supra),  where the Full  Bench  of  the Gujarat High Court had considered the effect of continuation of tenancy under the Bombay Rents, Hotel and Lodging  Houses Rates Control Act, 1947 which are precisely the cases in the facts  of  the  instant appeals, after  discussing  all  the relevant  provisions of the Act including the theory of  the prudent management the Full Bench of the Gujarat High  Court observed  that where a lease is created by the mortgagee  in possession  of  an urban immovable property,  such  a  lease would  not be binding on the mortgagor after  redemption  of mortgage assuming that the lease is such as a prudent  owner of   property  would  have  granted  in  usual   course   of management.  The  Court observed that that  was  so  because section  76(a) could not apply to a case of urban  immovable property  and  hence  a lease created by  the  mortgagee  in possession  of  an urban immovable  property  would  not  be binding  on the mortgagor after redemption of the  mortgage. Even  apart from section 76(a) of the Transfer  of  Property Act if the words of the mortgage deed clearly and indubitaly express  an   intention  to allow expressly  creation  of  a tenancy  beyond  the  term of the mortgage,  then  only  the lease created in exercise of the  power expressly  conferred by  the mortgage deed would be binding on the mortgagor.  If the   words  of  the  mortgage  deed  do  not  clearly   and indubitably  disclose the intention to allow  expressly  the creation  of a tenancy beyond the terms of the mortgage, the

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mere  fact that the  mortgage deed authorises the  mortgagee with possesion to induct a tenant would not create a tenancy binding  on  the  mortgagor after   the  redemption  of  the mortgage.  In such a case a tenant inducted on the  property by  a  mortgagee with possession when the  tenancy  of  that tenant is not binding on the mortgagor after the  redemption of  the mortgage, is not protected under the  provisions  of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.  We  are  of  the  opinion  that  the  aforesaid  view expressed  by the Chief Justice Diven on behalf of the  Full Bench  represents the correct position in law in respect  of the second aspect of the question canvassed before us.                                                    PG NO 858      We  have  noticed  the view of the Full  Bench  of  the Rajasthan  A  High Court on this aspect. This  question  was again  envisaged  by  this Court in the  background  of  the Rajasthan  Premises Act in Om Prakash Garg v. Ganga Sahai  & Ors., [1987] 3 SCC 553 holding that on passing of the  final decree  of  redemption of the mortgage, the  lease  did  not subsist  and the tenant is not entitled to protection  under the  Rajasthan  Premises (Control of Rent &  Eviction)  Act, 1950.  Again  viewing this question in the  context  of  the Bombay Rents, Hotel & Lodging House Rates Control Act,  1947 in Jadavji Purshottam v Navnitbhai Amaratlal & Ors.,  [1987] 4 SCC 223, in which the judgment was delivered by  Natarajan J., and one of us was a party to that decision, it was  held that  it was recognised by this Court in a number  of  cases that the question of imprudent  management of the  mortgaged property  by the mortgagee would not arise where the  rights of  the  tenant  were enlarged by  the  tenancy  legislation enacted  after  the  tenant was put  in  possession  by  the mortgagee. Hence, in that case the question was whether  the tenancy rights of the appellant-tenant, who was inducted  by the  mortgagee, came to be enlarged by  tenancy  legislation after  he was put in possession by the mortgagee.  The  fact founding  that  case was that the tenant-appellant  was  not inducted  into  possession  soon  after  the  execution   of mortgage deed and the mortgagee was put in possession of the property  but long thereafter. In fact, there was already  a tenant  on the mortgage Property when  the    mortgagee  was put  in  possession. During the period o f tenancy  of  that tenant the Saurashtra Act 22 of 1951 came to be enacted  and gave  protection to the tenants from paying exorbitant  rent and  from unreasonable eviction. Despite the enlargement  of his tenancy right by the Act. that tenant vacated the  lease premises in 1956 and thereafter the  mortgagee  inducted the appellant  in possession. It was held that that  was a  case where  the  Saurashtra  Act was already in  force  when  the appellant  cannot be  inducted into possession. The  tenancy rights  of  the  appellant cannot be  said  to  have  become enlarged   after  the  mortgagee granted him  the  lease  by subsequent legislation enacted  for affording  protection to tenants. The fact that the mortgagee had granted lease  only for   period  of  one year will not alter the  case  in  any manner   as  not only had the mortgagee executed  the  lease deed after the expiry of  the lease period but also  because the  restriction of the lease period to one year was  of  no consequence  in  view  of the provisions  contained  in  the Saurashtra  Act 22 of 1951. The enlargement of  the  tenancy rights cannot also be claimed on the basis of the fact  that the Bombay Rent Act had been enacted after the appellant was inducted  into the property because the Saurashtra  Act  was already  In  force when the mortgagee granted lease  to  the appellant and it was only from January’ 64  the Bombay  Rent                                                    PG NO 859

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act came to replace the Saurashtra Act. In Civil Appeal  No. 9993  of  1982,  Pomal  Kanji Govindji  &  Ors.  v.  Vrajlal Karsandas  Purohit ,& Ors., Shri B.K. Mehta took us  to  the factual  background. The appellants who are tenants  in  the mortgage  properties  being defendants Nos. 4 to  9  in  the original  suit  had  resisted the suit  for  redemption  and contended  that the plaintiffs were not entitled to  recover possession from them since their rights are protected  under the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947  and the said Act has applied to the area of  kutch  in the Bombay State. Therefore, no decree for eviction could be passed against them except in accordance with the provisions of  the  said Act. The High Court held  that  redemption  of mortgage  was  possible  and the suit  was  maintainable  as mentioned hereinbefore. However, as regards the question  of protection  of the tenants under the Bombay Rent  Act,  Shri Mehta  proceeded  to submit that the learned Judge  did  not make  any  finding as to when the tenants were inducted  nor did he express his opinion about the evidence of  respondent No.  5. Shri Mehta further submitted that the learned  Judge did  not  make  any finding as to when  their  tenants  were inducted,  either before or after the rent restriction   Act was  made  applicable to the area of Kutch. On  that  basis, following the Full Bench decision of the Gujarat High  Court in  Lalji Purshottam v. Thacker Madhavji  Meghaji,  (supra), the  courts  below rejected the claim of he  tenants.   Shri Mehta  submitted  hat  the  High  Court  has  erred  in  not following the settled legal position entrenched by a line of decision  of this Court that he rights of a tenant  inducted by a mortgagee with possession would enure beyond the period of redemption of the mortgage if his rights are enlarged  by subsequent  tenancy  legislations in force in  the  area  in which the property is situated. He drew our attention to the decision  in  the case of Mahabair Gope v.  Harbans  Narain, (supra).   There  as mentioned hereinbefore this  Court  had found that the provisions of sections 20 and 21 of the Bihar Tenancy  act, did not apply to the lessees since  they  were not  ‘settled raiyats’.  Shri Mehta also drew our  attention to  the  observations of this Court in Asa Ram v.  Mst.  Ram Kali,  (supra).  He also drew our attention to Dahya Lal  v. Rasul   Mahommed,   (supra)   which   we   have    discussed hereinbefore.  Similar, was the position in Prabha v. Ramdev (supra)   which  is  also  being   discussed   hereinbefore. Reference  was  made  to  the decision  in  All  India  Film Corporation  v. Gyan Nath, (supra), the basis of  which  has been explained hereinbefore.  The said decision will not  be applicable in respect of the facts and circumstances of  the case and in view of the terms of the renancy.  Our attention was drawn by Shri Mehta to the observations of this Court in Madan  Lal v. Badri Narain and others, [1987] 3.S.C.C.  460. In that case, it was contended before  this Court that there                                                    PG NO 860 was no such rule of general acceptance that a lease of urban property  by the mortgagee in possession cannot be  regarded to  be  an act of prudent management within the  meaning  of section  76(a) of the Transfer of Property Act which  carves out  an  exception to the general rule that a  mortgagee  in possession  cannot create, in the tenant inducted by him,  a right  to  continue  in  possession  beyond  the  period  of redemption.   Before this Court, in that case,  a  reference was  made to the Full Bench decision of the  Rajasthan  High Court in Devkinandan v. Roshan Lal, (supra).  But in view of the  facts that there was no definite finding  the  question whether  the alleged lease was an act prudent management  on the part of the mortgagee in possession in terms of  section

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76(a) was left open and that to be determined by the learned trial  Judge.   It has been held by this Court  in  numerous decisions  that  in case of immovable  properties  in  urban areas, unless the leases specifically and categorically make an  exception  in  favour  of the  tenant  that  they  would continue in possession even after the expiry of  termination of  the  leases,  and  those leases  were  acts  of  prudent management,  in no other case, the tenants inducted  by  the mortgagee  would be titled to the production under the  Rent Act after the redemption of mortgage.      In  this  connection, it will be  appropriate  here  to refer to the position as mentioned in the Mulla’s  ‘Transfer of  Property Act’, 7th Edn. pages 513 and 514, which  is  as follows:      "Whether  a  mortgagee in possession can by  reason  of clause (a) grant a lease of the mortgaged property has  been considered  in several decisions of the Supreme  Court.   In Mahabir  Gope  v.  Harbans Narain,  (1952  S.C.R.  775,  the Supreme court observed that the right conferred under clause (a)  was  an  exception to the general rule  that  a  person cannot  confer a better title on another than  he  possesses himself.  The Court pointed out that it followed that though a mortgagee may, if it is prudent, grant leases, these would determine  on  redemption.  The Court  recognised,  however, that in some cases the granting of a lease in the course  of prudent  management  might result in  the  tenant  acquiring rights  under other laws so that he could not be evicted  by the  mortgagor,  but this was an exception,  and  could  not apply where the mortgage deed prohibits such a lease  either expressly, or by necessary implication.  These  observations do not appear to have been followed in Harihar Prasad  Singh v.  Deonarayan  Prasad, [1956] S.C.R. 1 where  the  Suprerne                                                    PG NO 861 Court  held  that  even a lease created by  a  mortgagee  in possession  in  the  course  of  prudent  management  though binding on the mortgagors after redemption, could not create the rights of a raiyat on the tenants. The question was next considered in Asa Ram v. Ram Kali, [1958] S.C.R. 986,  where the  Supreme Court held that the creation of a  lease  which would create occupancy rights in favour of the tenants could not  be  regarded  as a prudent transaction.  In  Prabhu  v. Ramdev,  [1966]  3 S.C.R. 676. however,  the  Supreme  Court without referring to Asa Ram s case held that a tenant of  a mortgagee  can  invoke  the benefit  of  subsequent  Tenancy legislation  which provided that such a tenant could not  be evicted  except  in  the  circumstances  set  out  in   that legislation.  The  Court explained Mahabir  Gope’s  case  as being  a  decision  given  with  reference  to  the   normal relationship  of landlord and tenant. and stressed that  the Supreme Court in that case had contemplated an extraordinary situation arising from a tenant acquiring rights under other laws.  The  Court explained Harihar Prasad Singh’s  case  as having been decided on the peculiar facts of the case, viz,. that  in that case the tenants were not entitled  under  the Local  law  to invoke the protection of that  law.  In  Film Corporation  Ltd.  v. Gyan Nath,  [1970] 2  S.C.R.  581  the Supreme Court again considered the question. The  Court  did not  refer to either Harihar Prasad Singh,s case (supra)  or Prabhu  v.  Ramdev  (supra). The  Court  observed  that  the principle  laid down in Mahabir Gope’s case (supra)  that  a bona  fide  and  prudent  lease  would  bind  the  mortgagor "ordinary’’  applies  only  to agricultural  lands  and  has "seldom"  been extended to urban property. This  observation is  strictly speaking, obiter, as the Court found  that  the lease in question was neither bona fide nor prudent in  view

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of  the  long  term and the low  rent.  It  is  respectfully submitted  that there is no warrant for limiting sec.  76(a) to  agricultural  land. Whether a particular lease  is  bona fide or prudent is a question of fact; obviously a lease  of urban  land which would confer on the lesson the  protection of special statutes such as the Rent Acts would prima  facie be  imprudent. In Sachalmal Parasram v. Ratanbai,  [1987]  3 S.C.C.  198,  however, the Supreme Court  has  repeated  the obiter observation in the Film Corporation case (supra) that except in the case of agricultural land acts of a  mortgagee would not bind the mortgagor.                                                    PG NO 862      It is respectfully submitted that the position could be more satisfactorily stated with reference to the language of clause (a). The right conferred by that clause is to  manage the  property during the subsistence of the mortgage. It  is unlikely  that a prudent manager would create a lease for  a period  longer than the mortgage, or in circumstances  which would  give  the lessee rights after the redemption  of  the mortgage.  Such leases would prima facie be  imprudent,  and not binding on the mortgagor as beyond the powers  conferred by  clause  (a). If, however, it can be shown in  any  given case  that  such  a lease was prudent, it  would  bind  that mortgagor, even after redemption, and even though the lessee acquires thereunder rights of a permanent or quasi-permanent nature.  No  question of imprudence can arise where,  as  in Prabhu  v.  Ramdev, [1966] 3 S.C.R. 676 the  rights  of  the tenant  were enlarged by Tenancy legislation  enacted  after the  tenant  was put in possession by the  mortgage.  It  is submitted that this statement of the law is consistent  with all the Supreme Court decisions quoted above."      We are of the opinion that the rationale of the various decisions of this Court have been explained by Chief Justice Diven  in the Full Bench decision of the Gujarat High  Court in  Lalji Purshottam v. Madhavji Meghaji, (supra)  which  is the  correct  enunciation of law The learned  Chief  Justice observed at pages 514 and 515 of the report as follows:      "In  our opinion, on the general aspect of  the  matter based  on facts on which judicial notice can be taken it  is clear  that  so  far as leases  of  agricultural  lands  are concerned, when a lessee cultivates land by the very process of  cultivation he brings inputs and improves the  fertility of  the soil. Constant and continuous cultivation by  proper manuriny etc. would improve the fertility of the soil and on the  determination of the lease, that fertility would  still remain  in  the  land.  It  is,  therefore,  necessary  that security  of  tenure  should  be  given  to  the  tenant  of agricultural  land  so  that by  his  proper  husbandry  and agricultural practices, he himself may derive good  benefits from the land and also improve the fertility of the soil. It is because of this aspect that in all countries  legislation has  been enacted to protect the actual tiller of the  soil, fixity  of  tenure  has been given  and  all  the  different measures of tenancy legislation regarding agricultural lands                                                    PG NO 863 have provided for sufficiently long leases and protection of his  tenure so as to induce the agriculturist to put in  his best efforts and best inputs as they are called  now-a-days, during  the term of the lease. A prudent owner  of  property would, therefore, see to it that the term of lease which  he grants in respect of agricultural land is sufficiently  long to induce the tenant to put in the best efforts which  would incidentally benefit the owner of the land by improving  the fertility   of  the  land  itself.  In  contrast,   to   the agricultural  lands.  so far as non-agricultural  and  urban

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lands  are  concerned,  on determination of  the  lease  the tenant  who has been on the property under the terms of  the lease is bound to put back the property in the condition  in which it was at the time when he entered into possession and nothing  is normally done by the tenant which is  likely  to improve the quality of the soil property by his own  ettorts put in during the terms of the tenancy. There is, therefore, no  question of a prudent owner of urban immovable  property granting a long term lease merely with a view to improve the quality   of  the  land.  Barring  Rent  Control  and   Rent Restriction Act which deal with urban immovable property, in areas  where  there is scarcity of  accommodation  both  for residential and nonresidential purposes, there is no concept of protection to tenants of urban immovable property. We are of opinion that this is the rationale behind the distinction which  the Supreme Court has pointed out between  leases  of agricultural  lands and leases of urban  immovable  property while  dealing  with  the provisions of sec.  76(a)  of  the Transfer  of Property Act, whereas a a prudent  owner  would not ordinarily speaking think of creating a long term  lease purely  as  a  matter of prudent  management,  an  owner  of agricultural land in the course of prudent management  would create  a long term lease purely from the aspect of  prudent management. In our opinion therefore, the word "seldom" used Hidayatullah  C.J.  in  All India  Film  Corporation’s  case (supra) while dealing with the application of the  exception carved  out by see 76(a) to urban immovable property has  to be read as not being extended at all and it is merely a term of  the  phrase to say that this exception has  seldom  been extended to urban immovable property."                                                    PG NO 864      We  have noted hereinbefore the ratio and the basis  of the  decision of this Court in Jadavji Purshottam  v.  Dhami Navnitbhai  Amaratlal  (supra). Shri  Mehta  submitted  that there  was  no  clear finding as to when  the  tenants  were inducted  whether before or after the Rent  Restriction  Act and therefore, he pleaded that the matter should be referred to the larger Bench. In view of the facts found in this case which  were  similar  to  the  facts  mentioned  in  Jadavji Purshottam’s case, (supra) there is no specific authority in the lease which stated that the lease would continue  beyond the  period of mortgage. There is no extended  authority  as contemplated  in  Jadavji Purshottam’s case  found  in  this case.   The  submission  was  that  the  matter  should   be considered  by  a larger Bench in the light of  the  Jadavji Purshottam’s case (supra). We are unable to accept the  said submission. In this case the words in the mortgage deed,  as we  are  taken through, did not clearly  allow  creation  of tenancy  beyond the period of mortgage. That, in any  event, would  not have been prudent management. hence, there is  no finding  that the mortgage deed permitted, either  expressly or  impliedly.  creation of tenancy beyond  the  period.  We think that the tenants were not entitled to protection after redemption of mortgage. Furthermore, in all these cases  the authority  of  the  mortgagees to lease  out  the  property, expressed  or  implied, was circumscribed by  a  stipulation that  the mortgagee should re-deliver the possession of  the property when the mortgage was redeemed. In that context, we are  of  the opinion that the submissions on behalf  of  the tenants  cannot be entertained.      As  mentioned hereinbefore, Sh. B.K. Mehta,  especially in the background of the facts in C.A. No.9993/83, has  made certain  submissions  relying on the  observations  of  this Court  in Jadavji Purshottam’s case (supra).  That  decision requires   recapitulation  of  the  basic  principle.   That

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decision  reiterated that the tenant-appellant  therein  was not  inducted into possession soon after the  mortgage  deed was  executed and the mortgagee was put into  possession  of the  property  hut long thereafter. It is not  necessary  to detain  us  on  the facts of this case. The  basis  of  that decision  was:  whether the Saurashtra Act  was  already  in force.  The appellant therein was inducted  into  possession and his tenancy rights could not have become enlarged  after the  mortgagee  granted  him  the  lease  by  a   subsequent legislation enacted for affording protection to tenants.  In this case, relying on the said decision it may be reiterated that  the  tenancy right was not created by a  mortgagee  in possession,  wherein the mortgagor had not concurred in  the grant of a lease beyond the period of mortgage. The question in that decision was whether the lease granted to the tenant by  the  appellant had the  approval or concurrence  of  the                                                    PG NO 865 mortgagor so as to entitle the tenant to claim tenancy right even against the mortgagor after redemption of the mortgage. In  all these cases the major term in the mortgage deed  was that  the  possession would be delivered on  redemption.  In none  of these cases was there any term, at least  none  was adverted to, which stipulated any condition in the  mortgage deed which entitled the mortgagees to create tenancy  beyond the  period  of  the mortgage. This factor  along  with  the condition in the mortgage deed postulating the obligation to deliver possession at the expiry of the term of mortgage  to the  mortgagors,  in our opinion, are the  decisive  factors showing  that the tenants did not get their rights  enlarged on the coming into force of the subsequent Rent Legislation. The  very  Preamble to the Bombay Rents, Hotel  and  Lodging House Rates Control Act, 1947 indicates that it was "An  Act to amend and consolidate the law relating to the control  of rents  and repairs of certain premises, of rates  of  hotels and lodging houses and of evictions (and also to control the charges  for  licence  of premises etc.)".  It  was  thought expedient  to amend and consolidate the law relating to  the control of rents and repairs of certain premises. But  that, in  our  opinion,  has  indeed  never  been   construed   as enlarging  the rights of any group of tenants who  were  not the  tenants  of  the mortgagors.  Hence,  the  question  of enlargement  of right by tenancy legislation of persons  who were  in  occupation  but had no rights as  tenants  of  the mortgagors, would not arise in the context of these cases.     Incidentally,  it  may be referred that in  appeal  from S.L.P. No. 8219/82, this question does not arise.      In  C.A. No. 1286/81, the tenancy after the  period  of mortgage  was  not bona fide. In C.A. No.  9993/83,  it  was submitted that the tenants were inducted after the  mortgage on 28th April, 1943. The Bombay Rent Act was made applicable to the area of Kutch in September, 1951.      See Dalal’s Rent Act 4th Edn. page 814 on that basis it was submitted that as there was no Act in the area of  Kutch which  is  in  pari materia with the  Bombay  Rent  Act  and therefore  the  rights of the tenants were enlarged  by  the subsequent  Act. In view of the tact that the mortgage  deed did  not  contemplate  rights of  the  mortgagees  to  grant tenancy  beyond the period of mortgage, and had  imposed  an obligation  that  on the expiry of the period  of  mortgage, mortgagors  were entitled to the possession of  the  demised premises  .  In  our opinion, these  contentions  cannot  be entertained.                                                    PG NO 866      Incidentially,  it may also be mentioned that  in  C.A. No.  1286/81, the suit property was mortgaged in 1948 for  a

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period of 5 years. The tenant was inducted by the  mortgagee in  1955.  The  period  of mortgage  had  expired  in  1953. Apparently,  the  mortgagee had inducted  the  tenant  after expiry  of  the period of mortgage, and such a  conduct  was grossly  imprudent management, and was not bona  fide.  Such tenant cannot, in any event, claim any protection.      Having  considered the facts and the circumstances  and the  ratio  of  the decision in  Jadavji  Purshottam’s  case (supra),  we  are clearly of the opinion  that  the  tenancy rights   did  not  come  to  be  enlarged  by  the   Tenancy Legislation after the tenant was put into possession by  the mortgagee  and the tenancy created ia favour of the  tenants by  the  mortgagor  did  not have  the  concurrence  of  the mortgagor   so  as  to  claim  tenancy  rights  even   after redemption of the mortgage. See the observations in para  12 of the Jadavji Purshottam’s case (supra).      In  the  premises,  the  appeals  must  fail  and   are dismissed.  Civil Miscellaneous Petition in C.A. No.  397/80 must  also fail and is dismissed. The parties will  pay  and bear their own costs.   A.P.J.                                Appeals dismissed.