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PETITIONER: MURAMLAL

       Vs.

RESPONDENT: DEV KARAN

DATE OF JUDGMENT: 08/05/1964

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M. GUPTA, K.C. DAS SHAH, J.C. DAYAL, RAGHUBAR

CITATION:  1965 AIR  225            1964 SCR  (8) 239

ACT: Mortgage-  Clog  on  equity  of   redemption-Enforceability- Principle   of    Justice,  equity  and   good   conscience- Application-Power of Court.

HEADNOTE: The  respondent sought to redeem a mortgage executed in  the State  of Alwar in 1919.  By a stipulation in  the  mortgage deed  the  mortgagor agreed that if the debt  was  not  paid within 15 years the mortgagee would become the owner of  the property.   The respondent’s case was that  the  transaction was  a mortgage and that he could redeem the  mortgage  even though  the  stipulated  period  was  over.   The  appellant resisted  the  suit  on  the  ground  that  the  transaction amounted  to  a sale and not a mortgage.   The  trial  Judge dismissed the suit holding that the claim for redemption was not maintainable after the expiry of the stipulated  period. The Rajasthan High Court on appeal reversed the decision  of the  trial Judge holding that the stipulation was a clog  on the  equity  of  redemption  and  remanded  the  suit.   The stipulation in question I was as follows,-               "After the expiry of the stipulated period  of               15  years  this  shop would be  deemed  as  an               absolute   transfer  ’Mala  Kalam’  for   this               amount.   Till the mortgage money is  paid,  I               shall have no concern with the shop." Held:If the stipulation were to prevail, the use of the words ’mala kalam’, which meant that there would be no scope for  the mortgagor to say anything, would indicate that  the mortgagee became the absolute owner of the property. But  the  stipulation, which was undoubtedly a clog  on  the equity of redemption, must fail and the suit for  redemption must succeed. 240 The   equitable  principle  of  justice,  equity  and   good conscience, long and consistently applied by Civil Courts in lndia,  could be applied in the State of Alwar  even  though the Transfer of Property Act had no application there at the time  when the mortgage document was executed or its  period

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expired.  The strict provisions of the texts of Hindu Law in this regard would be of no avail. Namdeo  Lokman  Lodhi  v. Narmadabai,  [1953]  S.C.R.  1009, applied. Pattabhiramier v. Vencatarow Naicken and Narasimha  Naicken, (1870)  13  M.I.A. 560 and Thumbusaway Moodelly  v.  Hossain Rowthen,I.L.R. I Mad. 1, considered. , Venkata Reddy v. Parvati Ammal, I Mad.  H.C. Rep. 460, Ramji bin  Tukaram  v.  Chinto Sakharam, I  Bom.   H.C.  Rep.  199 (1864),  Bapuji Apaji v. Senavaraji Marvadi, I.L.R. 11  Bom. 231,  Ramasami Sastrigal V. Samiyappanayakan, I.L.R. 4  Mad. 179,  Amba Lal v. Amba Lal, I.L.R. 1957 Raj. 964, Seleh  Raj v.  Chandan  Mal, I.L.R. 1960 Raj. 88 and  Nainu  v.  Kishan Singh, A.I.R. 1957 H.P. 46, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 484 of 1961. Appeal  by special leave from the judgment and decree  dated March 28, 1958 of the Rajasthan High Court (Jaipur Bench) at Jaipur in D. B. Civil First Appeal No. 64 of 1951. Sarjoo Prasad and Harbans Singh, for the appellants. B. P. Sinha and Naunit Lal, for the respondents. May 8, 1964.  The Judgment of the Court was delivered by GAJENDRAGADKAR, C.J. This appeal by special leave arises out of  a  redemption  suit filed by the  respondent  Dev  Karan against the appellant Murarilal.  The mortgage sought to  be redeemed  was executed on the 19th March, 1919 for a sum  of Rs. 6,500.  The mortgaged property consisted of a shop which was delivered over in the possession of the mortgagee  after the  execution of the mortgage deed.  The mortgage deed  had provided  that the amount due under the mortgage  should  be repaid  to  the  mortgagee within 15  years,  whereupon  the property would be redeemed.  It had also stipulated that  if the  payment  was not made within 15  years,  the  mortgagee would become the owner of the property.  The mortgagor-  was Mangal 241 Ram  who died and the respondent claims to be the  heir  and legal representative of the said deceased mortgagor.  In the plaint  filed  by the respondent, it was  averred  that  the transaction   was,   in  substance,  a  mortgage   and   the mortgagor’s  right  to  redeem was  alive  even  though  the stipulated period of 15 years for the repayment of the  loan had passed.  On these allegations, the respondent claimed  a decree for redemption of the suit mortgage on payment of Rs. 6,500.  It appears that the original mortgagee Gangadhar had also  died before the institution of the suit, and  so,  the appellant  Murarilal was impleaded as the defendant  on  the basis that he was the only heir and legal representative  of the deceased mortgagee Gangadhar. The  claim  for redemption thus made by the  respondent  was resisted  by  the  appellant on  several  grounds.   It  was alleged that after the expiry of the stipulated period of 15 years, the property had become the absolute property of  the mortgagee  and  it was urged that the  original  transaction was,  in  substance, and in reality, not a  mortgage  but  a sale.  Several other pleas were also raised by the appellant in  resisting the respondent’s claim, but it is  unnecessary to   refer  to  them.   The  learned  trial   Judge   framed appropriate  issues  which  arose on  the  pleading  of  the parties.   In  substance,  he  field  that  the  claim   for redemption made long after the 15 years’ period had  expired could  not be sustained. Findings were made on other  issues

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also  and they were against the respondent.  In the  result, the respondent’s suit was dismissed. The  respondent  then took the matter in appeal  before  the Rajasthan  High Court.  He urged that the view taken by  the trial  Court  that  the stipulation as  to  the  mortgagor’s liability to re-pay the loan within 15 years did not bar his present  suit for redemption, because the  said  stipulation amounted to a clog on the equity of redemption and as  such, could  not  affect the mortgagor’s right to redeem,  and  he added that the transaction, in substance, was a mortgage and not a sale, and so, his right to redeem was alive and  could be effectively enforced by the present suit.  The High Court has  upheld his first contention that the relevant 51 S.C.-16. 242 provision as to the period within which the mortgage  amount had  to  be  repaid  amounted to a clog  on  the  equity  of redemption and could not be pleaded as a bar to the  present suit.  But on the question about the character of the origi- nal transaction itself, the High Court appears to have  been inclined to take the view that the relevant clause on  which the plea about the bar was raised did not really support the said plea, because it was by no means clear that even  after the expiration of 15 years, the mortgagee was intended to be the absolute owner of the property.  On these findings,  the decree passed by the trial Court dismissing the respondent’s suit has been reversed and the suit has been remanded to the trial Court to be disposed of in accordance with law.  It is against this order that the appellant has come to this Court by  special  leave.  Pending the appeal before  this  Court, both  the appellant and the respondent have died, and  their respective heirs have been brought on the record. The  first question which calls for our decision is  whether the relevant clause on which the appellant relies makes  the mortgagee  the owner of the property at the end of the  sti- pulated  period of 15 years.  The mortgage  provides,  inter alia,  that after the house which was the mortgage  property was  delivered  over to the mortgagee, it was  open  to  him either  to  live in it, or to let it out  to  tenants.   The mortgagee  was further given liberty to spend up to  Rs.  35 for  repairing the house and if more expenses were  intended to  be  incurred,  the &aid expenditure  would  be  incurred through the mortgagor.  On the expenditure thus incurred the mortgagor was liable to pay interest at the rate of As. 0-6- 0  per cent per month.  Then the document proceeded  to  add that  the  mortgagor  would get  the  property  redeemed  on payment of the mortgage amount as well as the cost of  Patta which  may  have  been incurred by  the  mortgagee  and  the repairing  expenses  within  a period of  15  years.   Then, occurs  the  relevant  clause:  "After  the  expiry  of  the stipulated period of 15 years, this shop would be deemed  as an  absolute  transfer "Mala Kalam" for  this  very  amount. Till  the  mortgage money is paid, I shall have  no  concern with  the  shop." The High Court appears to have  taken  the view that the words "Mala Kalam" which occur at                             243 the end of the relevant clause do not necessarily import the notion  that  the mortgage property would  be  the  absolute property of the mortgagee.  According to the High Court, the said  words  literally  mean "where there is  no  scope  for having  any  say".  If that is the meaning of  the  relevant words,  it  seems  difficult to accept  the  view  that  the document  did not intend to make the mortgagee the owner  of the property at the end of 15 years if the debt due was  not paid within that period.  When the document says that  there

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would  be  no scope for the mortgagor to  say  anything,  it necessarily means, in the context, that the mortgagor would, in that case, have lost his title to the property, and  that means  the mortgagee would become the absolute owner of  the property.  Therefore, we feel no difficulty in holding  that if  the  terms of the document were to prevail,  the  appel- lant’s  contention that the present suit for  redemption  is barred,  must succeed.  It is common ground that the  amount due under the mortgage deed was not paid by the mortgagor or his  heir  within  the  stipulated  period  and  that  would extinguish the title of the mortgagor and make the mortgagee to be the owner of the property. But  the  question  is whether such  a  stipulation  can  be allowed to be pleaded as a bar to the respondent’s claim for redemption.   Just as it is common ground that if the  terms of  the document were to prevail, the suit would be  barred, it is also common ground that if the doctrine that the  clog on the equity of redemption cannot be enforced is to prevail in  the  present proceedings, the  respondent’s  action  for redemption must succeed.  The fact that a stipulation of the kind with which we are concerned in the present case amounts to a clog on the equity of redemption, is not and cannot  be disputed.  Therefore, the main question which arises in  the present appeal is: does the equitable doctrine ensuring  the mortgagor’s equity of redemption in spite of a clog  created on such equity by stipulations in the mortgage deed apply to the  present  case?   This question  arises  in  this  form, because the Transfer of Property Act did not apply to  Alwar at  the time when the mortgage was executed nor at the  time when the 15 years’ stipulated period expired. 244 Mr.  Sarjoo Prasad for the appellant contends that the  High Court  was  in error in applying  the  equitable  principle, because the said principle cannot be invoked in cases  where the Transfer of Property Act does not apply.  In support  of this  argument,  he  has very strongly relied  on  an  early decision  of  the Privy Council pronounced in 1870,  in  the case  of Pattabhiramier v. Vencatarow Naicken and  Narasimha Naicken(1).   In  that case, the Privy Council  was  dealing with  a  Bye-bil-wuffa,  or mortgage  and  conditional  sale usufructuary  executed  in 1806 under which  the  mortgagees were put in possession.  The deed contained a condition that if  the  mortgagor failed to redeem within five  years,  the conditional  sale was to be absolute.  The mortgagor  failed to  redeem within the stipulated period, and the  mortgagee, without  foreclosing the mortgage, sold the  mortgaged  pro- perty.   Thereafter, the mortgagor’s representative sued  to redeem  the  mortgage under s. 8 of  the  Madras  Regulation XXXIV of 1802.  The Privy Council held that the interest  of the mortgagee after the expiry of the stipulated period  had become  absolute.   In  dealing  with  this  question,  Lord Chelmsford  who delivered the opinion of the Board  observed that the form of security with which the Board was concerned had  long been common in India, and he added that  the  sti- pulations  in  such contracts were recognised  and  enforced according  to their letter by the ancient Hindu law as  well as  under Mohammedan law; and in support of this  statement, reference  was  made to certain passages  from  Colebrooke’s Digest  on Hindu Law and Baillie’s introduction to his  book on  Mohammedan  Law  of Sale.  If the  ancient  law  of  the country, observed Lord Chelmsford, has been modified by  any later  rule,  having  the force of law, that  rule  must  be founded  either on positive legislation, or  on  established practice; and since neither any specific statutory provision had been cited before the Board, nor established practice in

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that  behalf had been proved, the Privy Council  upheld  the mortgagee’s  plea that he became the absolute owner  of  the property at the expiration of the stipulated period.   While pronouncing  this decision, Lord Chelmsford,  however,  took the precaution of adding that while the Board was allowing (1) [1890] 13 Moore’s I.A. 560 245 the  appeal, "it must not be supposed that  their  Lordships design  to  disturb  any rule  of  property  established  by judicial  decisions  so as to form part of the  Law  of  the Forum  wherever  such may prevail, or to  affect  any  title founded thereon." As we will presently point out, the appeal of  Pattabhiramier was pending before the Privy Council  for as  many  as 10 years.  Meanwhile, Indian High  Courts  were enforcing   the   equitable  principle   that   stipulations contained  in mortgage-deeds which amounted to clog  on  the equity of redemption could not be enforced.  In other words, the jurisdiction which courts of equity exercised in England by  refusing to enforce clogs on the equity  of  redemption, was being exercised by High Courts in India. However,  before  we refer to those decisions, it  would  be convenient  to  cite another decision of the  Privy  Council pronounced  in  Thumbusawmy Moodelly v.  Hossain  Rowthen  & Ors(1).  In that case, the Privy Council held that the  con- tract of mortgage by conditional sale is a form of  security known throughout India, and by the ancient law of India,  it must  be taken to prevail in every part of India,  where  it has  not been modified by actual legislation or  established practice, and so, must be enforced according to its  letter. In this case, Sir James W. Colvile who delivered the opinion of the Board, referred to the earlier decision of the  Privy Council  in  Pattabhiramiers case(1), noticed the  trend  of judicial  pronouncements  made by the High Courts  in  India while  Pattabhiramier’s  case was pending before  the  Privy Council,  and  strongly reiterated the view  that  the  said decisions  of  the High Courts were radically  unsound.   He referred  to the fact that  unfortunately,  Pattabhiramier’s case  " slept for nine years, and that in the  interval  the Sudar  Court, and afterwards the High Court which  succeeded it,  continued the course of decision which the  former  had given in 1858".  Then he mentioned the relevant decisions of the  Madras  and the Bombay High Courts  and  expressed  the opinion  that in trying to enforce principles of  equity  in dealing  with stipulations contained in mortgage  documents, the  High  Courts  were really  assuming  the  functions  of Legislature.   So,  it  is  clear  that  the  Privy  Council emphatically (1)  I.L.R. 1 Mad. 1 (2) [1870] 13 M.I.A. 246 declared  in  1875  that  unless  there  is  a   legislative enactment or established practice to the contrary, terms  in the  contract of mortgage by conditional sale must be  taken to  prevail  in  every part of India and  must  be  strictly enforced  according  to  their letter.   Mr.  Sarjoo  Prasad naturally relies on these decisions and contends that so far as the State of Alwar is concerned, there is no  legislative enactment  to  the contrary, nor is  there  any  established practice on which the equitable doctrine could be pleaded by the  respondent in support of his case that though 15  years have elapsed, his right to redeem still survives. There are two other decisions of the Privy Council to  which we may refer at this stage.  In Kader Moideen V.  Nepean(1), the Privy Council was dealing with a case from Burma, and it observed  that  the  Burmese Courts  are  directed,  in  the

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absence of any statutory law applicable to accounts  against a  mortgagee  in  possession,  to  follow  the  guidance  of justice,  equity,  and  good  conscience.   Acting  on  this principle,   the  Privy  Council  accepted   Mr.   Haldane’s contention  that  there was no rule of abstract  justice  in taking  the accounts of a mortgagee in possession, and  that the Indian rule, which was embodied in s. 76 of the Transfer of  Property  Act,  should,  though the  Act  had  not  been extended  to Burma, be followed there in preference  to  the English practice.  It would thus be seen that the  equitable principle underlying the provisions of s. 76 was extended to the case on the specific ground that the Burmese Courts  had been directed by the relevant statutory provision to  follow the  guidance of justice, equity and good conscience in  the absence of any statutory law applicable to accounts  against a mortgagee in possession.  This decision, therefore, is  in line with the two earlier decisions of the Privy Council. Similarly,  in  Mehrban Khan v. Makhna(2), where  the  Privy Council  was dealing with the provisions in a mortgage  deed conferring  on the mortgagee upon redemption an interest  in the mortgaged property, it was held that the said provisions amounted to a clog or fetter on the equity of redemption and as such, were void not only against the mortgagor, but  also against the purchaser of his interest, (1) 25 I.A. 241 (2) 57 I.A. 168 247 since  they  were  inconsistent with  the  very  nature  and essence  of  a  mortgage.  In this case,  again,  s.  28  of Regulation  No. VII which was applicable to  the  North-West Frontier Province, had expressly provided that in cases  not otherwise  specially provided for, the Judges  shall  decide according,  to justice, equity and good conscience; and  so, recourse  to the equitable doctrine was permissible  because there  was  the statutory mandate requiring  the  Judges  to apply  the  said  doctrine  where  there  was  no   specific legislative  provision in relation to the matter with  which they were dealing. Though  the position of the Privy Council decisions is  thus clear and consistent, the trend of the decisions of the High Courts  in  India continued to conform to the  same  pattern which was set up by the decision of the Madras High Court in the case of Venkata Reddi v. Parvati Ammal(1) and adopted by the  Bombay  High  Court  in Ramji  bin  Tukaram  v.  Chinto Sakharam  (2).   The  question  was  elaborately  argued  on several  occasions before the said High Courts and  the  two earlier  decisions  of  the Privy Council  in  the  case  of Pattabhiramier(3)  as  well as in the  case  of  Thumbuswamy Moodelly(4)  were cited and yet, the High Courts  have  con- sistently adhered to the view that in dealing with  mortgage transactions  which  contain unfair,  unjust  or  oppressive stipulations unreasonably restricting the mortgagor’s  right to  redeem,  the  Court would be justified  in  refusing  to enforce  such  stipulations and  recognising  the  paramount character  of the equity of redemption.  In Bapuji Apaji  v. Sonavaraji  Marvati(5),  Westropp,  C.J.,  has   elaborately considered  the  relevant  aspects  of  this  question.   He referred  to the two Privy Council’s decisions and  observed that  the doctrine of Ramji v. Chinto(2) had been  uniformly followed  in the Bombay Presidency in a multitude of  cases, and  he  saw  no reason to depart from  that  decision.   In expressing  his  firm adherence to the pattern  of  the  law prescribed by the decision of the Bombay High Court in Ramji v. Chinto, the learned Chief Justice elaborately  considered all  the  precedents  on the  point,  trend  of  authorities

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bearing  on the question, the opinion of scholars, and  held that he was inclined (1)1 Mad.  H.C. Rep. 460 (2) 1 Bom.  H.C.Rep. 199 [1864] (3) [1870] 13 M.I.A. 560 (4) I.L.R. 1 Mad. 1. (5)  I.L.R. 11 Bom. 231 248 to  take  the law to be that which was settled in  Ramji  v. Chinto(1) and gave effect to it.  So far as the Bombay  High Court  is concerned, the practice consistently had  been  to follow  the decision of Westropp, C.J. till the Transfer  of Property Act was extended to Bombay. In  Madras,  we  find  that  same  position.   In   Ramasami Sastrigal  v. Samivappanayakan(2), the majority view of  the Full  Bench  was that in the Madras Presidency,  where  con- tracts  of  mortgage by way of conditional  sale  have  been entered  into subsequent to the year 1858, redemption  after the  expiry  of  the term limited by the  contract  must  be allowed. The, point with which we are dealing in the present appeal was elaborately argued before the Madras High  Court; the opinion expressed emphatically by the Privy Council  was cited, but Turner, C.J., with whose opinion Muttusami Ayyar, J.,  agreed  made  a  very  significant  observation   after elaborately examining the merits of the questions "For these reasons," said the learned C.J., "we conceive that we  shall not be wanting in due respect for the distinguished tribunal by  whose  decisions we are bound, if we follow  the  course they have pronounced there were strong reasons for  adopting and  apply  the rules introduced,  however  erroneously,  by judicial  decisions  in  these  provinces."  That  view  has prevailed in the Madras High Court ever since. These decisions show that the High Courts in India conformed to  the  view  that  whether or not  there  is  a  statutory provision  directing  the  Judges  to  give  effect  to  the principles  of  justice, equity and good conscience,  it  is their duty to enforce that principle where they are  dealing with stipulations introduced in mortgage transactions which’ appear to them to be unreasonable, oppresive or unjust. It  is  true  that according to the  strict  letter  of  the ancient  Hindu Law, a stipulation that the  mortgagor  shall pay  the  amount advanced to him by the  mortgage  within  a specified period, was intended to be enforced.  The  ancient Hindu  law texts use the word "Adhi" to denote pledge  of  a movable  or  mortgage of immovable property.  Nar.   IV  124 divides  Adhi  into  two  sorts, viz., one  that  is  to  be redeemed within (1)  1 Bom.  H.C. Rep. 199 (1864) (2) I.L.R. 4 Mad.  179 at P. 190 249 a   certain  time  fixed  (by  agreement  at  the  time   of contracting  the  debt) or to be retained till the  debt  is paid off.  In regard to the first category of mortgages,  if the  money is not paid at the time fixed, the thing  pledged or mortgaged would belong to the creditor (vide Yaj. 11.  58 and  as explained by Mitakshara) (1).  It also appears  that if the mortgage is not redeemed even when the debt has grown to  double of the principal by non-payment of  the  interest agreed upon, the mortgagor lost his title over the mortgaged property; so that it must be conceded that under the  strict letter of the Hindu law texts, if a mortgage deed contains a stipulation for the repayment of the mortgage amount  within a specified period, at the expiration of the said period the mortgagor  may lose his title over the  mortgaged  property. The  principle underlying this provision appears to be  that

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Hindu  law  as  enunciated by the  ancient  texts,  attached considerable  importance  to a person keeping  his  promise. Though  that is so, we ought also to add that  according  to Sir R. B. Ghose, ordinarily, time was not of the essence  of the contract of mortgage in Hindu law(1), and in support  of this  opinion  the  learned  author  quotes  with   approval Colebrooke’s opinion. Basing himself on this position of the Hindu law, Mr. Sarjoo Prasad contends that we ought to assume that Hindu Law which was  applicable  to  Alwar  recognised  the  importance   of compelling  the  mortgagor to perform his  promise  that  he would  repay  the  debt within a specified time  and  if  he tailed to do so, he would lose his title over the  mortgaged property.  He urged that the dispute between the parties  in the  present appeal should be decided in the light  of  this position  of  the  Hindu  law  as  well  as  the  principles enunciated   by   the  Privy  Council  in   the   cases   of Pattabhiramier(3) and Thumbusawmy Moodelly (4). In  dealing  with  this argument, it would  be  relevant  to observe  that traditionally, courts in India have been  con- sistently  enforcing the principles of equity which  prevent the enforcement of stipulations in mortgage deeds which  un- reasonably restrain or restrict the mortgagor’s right to (1)  Dr.   Kane’s History of Dharmasastra Vol.  III.  p.,128 (1)  Ghose  on  ’The Law of Mortgage in  India’  Tagore  Law Lectures 1875-6, 5th Ed.  Vol.  I. p. 56. (3) [1870] 13 M.I.A. 560 (4) I.L.R. 1 Mad. 1 250 redeem.   We may, in this connection, refer to some  of  the statutes  which  were  in force in India.   The  old  Bengal Regulation  III of 1793 by s. 21 directed the Judges of  the District  and  City Courts in cases where no  specific  rule existed  to act according to justice, equity and  good  con- science.   Similar provision occurs in s. 17 of  the  Madras Regulation  II of 1802.  The Bengal Civil Courts Act,  1887, and the Madras Civil Courts Act, 1873, contain similar  pro- visions in ss. 37 and 16 respectively.  Likewise, in  regard to Courts in the Mufassal of Bombay, Bombay Regulation IV of 1827  by s. 26 provides that the law to be observed  in  the trial  of suits shall be Acts of Parliament and  Regulations of Government applicable to the case; in the absence of such Acts and Regulations, the usage of the country in which  the suit arose; if none such appears, the law of the  defendant, and  in the absence of specific law and usage,  equity  ‘and good  conscience.   In  fact,  in  Namdeo  Lokman  Lodhi  v. Narmadabai(1), this Court has emphatically observed that  it is  axiomatic that the courts must apply the  principles  of justice,  equity and good conscience to  transactions  which come before them for determination even though the statutory provisions  of  the Transfer of Property Act  are  not  made applicable  to these transactions.  These  observations,  in substance, represent the same traditional judicial  approach in dealing with oppressive, unjust and unreasonable restric- tions  imposed  by the mortgagees on needy  mortgagors  when mortgage documents are executed. There is one other circumstance to which we ought to  refer. We  do not know what the true position of the Hindu law  was in the State of Alwar at the relevant time.  In fact, we  do not know what the provisions of the Contract Act were in the State of Alwar.  Even so, we think it would be reasonable to assume  that civil courts established in the State of  Alwar were  like  civil courts all over the country,  required  to administer  justice and equity where there was  no  specific statutory provision to deal with the question raised  before

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them.  Whether or not the Hindu law which prevailed in Alwar was  similar  to that prescribed by ancient  Hindu  Sanskrit texts, is a point on which no material is produced (1)  [1953] S.C.R. 1009                             251 before  us.   It  may well be that just  as  in  Bombay  and Madras, notwithstanding the ancient provisions of Hindu  Law which  seem  to  entitle the mortgagee to  insist  upon  the performance  of  a stipulation as to time within  which  the mortgage  debt  has  to be paid, the High  Courts  had  con- sistently  refused to enforce such stipulations, the  Courts in  the  State  of  Alwar also may  have  adopted  the  same approach.   In the absence of any material on the record  on the  point, we are reluctant to accept Mr.  Sarjoo  Prasad’s argument  that the doctrine of equity and justice should  be treated as irrelevant in dealing with the present dispute. In  this connection, it is material to refer to  the  recent decisions  pronounced by the Rajasthan High Court  in  which this  position  has  been  upheld  either  because  it   was conceded,  or because the High Court took the view that  the principles  of  equity  were  enforceable  in  dealing  with mortgage  transactions  in Rajasthan.  In Amba Lal  v.  Amba Lal(1),  the  Rajasthan High Court held that s. 60  and  its proviso  contained a general principle of law applicable  to mortgages  in this country, which should be applicable  even in  those places where the Transfer of Property Act may  not be  in  force as such, but where its principles  may  be  in force.   The  property in question which  was  the  subject- matter of the mortgage was situated in the State of Udaipur. Similarly, in the case of Seleh Raj v. Chandan Mal(2) ,  the Rajasthan  High Court held that the principle underlying  s. 60  may  well  be  regarded to be  a  salutary  one  and  in accordance with the principles of equity, justice ,and  good conscience.   Accordingly it took the view that  though  the Transfer  of  Property  Act  may not  be  in  force  in  the territory  in  question,  it would not  be  unreasonable  to decide  a case in accordance with the principles  underlying the  said  section.  The property with which the  Court  was concerned in this case was situated in the State of Jodhpur. The  same  principle has been applied  in  Himachal  Pradesh (vide Nainu v. Kishan Singh)("). (1)  I.L.R. r957 Raj. 964. (2) I.L.R. 196o Raj. 88. (3)  A.I.R. T957 H.P. 46. 252 Thus,  it is clear that the equitable principle of  justice, equity and good conscience has been consistently applied  by Civil Courts in dealing with mortgages in a substantial part of Rajasthan and that lends support to the contention of the respondent  that it was recognised even in Alwar that  if  a mortgage  deed  contains a  stipulation  which  unreasonably restrains or restricts the mortgagor’s equity of redemption, courts were empowered to ignore that stipulation and enforce the mortgagor’s right to redeem, subject, of course, to  the general  law  of limitation prescribed in that  behalf.   We are, therefore, satisfied that no case has been made out  by the   appellant  to  justify  our  interference   with   the conclusion  of  the Rajasthan High Court that  the  relevant stipulation  on  which  the appellant  relies  ought  to  be enforced  even  though it creates a clog on  the  equity  of redemption. In the result, the appeal fails and is dismissed with costs. Appeal dismissed

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