# SETH GANGA DHAR v. SHANKAR LAL & OTHERS

- **Citation:** [1959] 1 S.C.R. 509
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Bench:** Bhagwati, J. L. Kapur, A. K. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/seth-ganga-dhar-v-shankar-lal-others-1680
- **Pages:** 12

## Headnote

Morlgage-Mortgago-r's right to redeem-:-lnstrument prtJVidittg
that mortgage shall not be redeemable for eightyfive years-Term, if a
clog' on the equity of redemption-,-Pou·er of Co11.rt-Extent-Appiicc
ability-Transfer of Property ACi, I882 (4 of I88z), s. 60.
The rule against clogs on the equity of redemption embodied
ins. 60 of the Transfe.r1>f 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
:hvay, b.ut also where that right is restricted. The extent of this
latter power is, however, limiteJi by the rea:Son that gave rise to
it, namely, the unconscionable rtature of the bargain, which, to a
court of equity, would afford sufficient ground for relieving the
rnortga~-0r of .his burden, and its exercise must, therefore, depend
on whether the bargain, in the facts and circumstances .of aoy
particular case, was· one imposed on the mortgagor. by taking
advantage of his difficult and impecuni:ous position at the time
when he borrowed the money.
'
Vermon v. Bethell, (1762) 2 Eden no; 28 E. R. 838 and D,
mid C. Kteg!fager v. New Patagonia Meat and Cold Storage Company Ltd .. [1941] A.C. 25, relied on.
Santley v. !Yi/de, (1913) L. R. 41 I. A. 84 and Mohatiimad
Sher Khan v. Seth Swami Dayal, (1912) L. R. 49 I. A. 60, referred to.
Consequently'. in a suit for redemption where the mortgage
deed, by two distinct and independent terms .provided that (l) the
mortgage shall not be redeemed for eightyfive years and (2} 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 t"t
was clearly evident from the facts and circumstances of th.e case
that the bargain was quite fair and one as between parties deali'ng
with each other on an equal footing:
Htld, that the term providing for a period of l;lightyfive ye'ai'S
W.ls not a clog on the equity of redemption and the tnere length
af the period could not by itself. lead to an inference tha.t the bargain was in.any way oppress:ve or unreasonable. The term was
enfotceablE'. in law and the suit for redemption filed before the
·expiry.of the period was pretnature.
Held', further, that the term that .on th.e failure of the mort·
'iag-0t ta Eedeem within the specified periocl o! ·six manths; ll'e
o~
.
•
April z5.
Seth Ganga Dhar
v.
Shankar Lal
0- Others
Stirkar ].
510
StJPR1ilME1 COtJR'r RlilPOR'rS
tt959]
would lose his right to do so and the mortgage deed was to be
deemed to be a deed cif sale in favour o the mortgagee, was
clearly a clog on 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 clearly
apart.
C1v1L APPELLATE JuRISDIOTION: C'ivil Appeal No.
150 of 1954.
•
Appeal from the judgment and decree dated March
21, 1950, of the Court of Judicial Commissioner at
Ajmer in Civil First Appeal No. 13 of 1948, arising
out of the judgment and decree dated March 30, 1948,
of the Court of Sub-Judge. 1st .Class, Ajmer, in Civil
Suit No. 1 of 1947.
·
Tarachand Brijmohan Lal, for the appellant.
S.S. Deedwania and K. L. Mehta, for the respondents.
1958. April 15.
The Judgment of the. Court was
deliver0d by
SARKAR J.-This appeal arises out of a suit for the
redemption of a mortgage dated August 1, 1899.
The
property mortgaged was a four-roomed shop with
certain appurtenances, standing on a piece of I.and
measuring 5 yards by 15 yards in Kaya Bazar, Ajmere.
The mortgage was created by Purshottamdas who is
now dead and was in favour of Dhanrupmal, a res,
pondent in this appeal. The mortgage instrument
stated that the property had been usufructuarily
mortgaged in lieu of Rs. 6,300 of which Rs. 5,750 had
been left with. the mortgagee to redeem a prior mort.
gage on the same and another property

## Text

S.C.R.
sUPR~M~ COURT R:mPOR'rS
509
SETH GANGA DHAR
v.
SHANKAR LAL & OTHERS
(BHAGWATI, J. L. KAPUR and A. K. SARKAR JJ.)
Morlgage-Mortgago-r's right to redeem-:-lnstrument prtJVidittg
that mortgage shall not be redeemable for eightyfive years-Term, if a
clog' on the equity of redemption-,-Pou·er of Co11.rt-Extent-Appiicc
ability-Transfer of Property ACi, I882 (4 of I88z), s. 60.
The rule against clogs on the equity of redemption embodied
ins. 60 of the Transfe.r1>f 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
:hvay, b.ut also where that right is restricted. The extent of this
latter power is, however, limiteJi by the rea:Son that gave rise to
it, namely, the unconscionable rtature of the bargain, which, to a
court of equity, would afford sufficient ground for relieving the
rnortga~-0r of .his burden, and its exercise must, therefore, depend
on whether the bargain, in the facts and circumstances .of aoy
particular case, was· one imposed on the mortgagor. by taking
advantage of his difficult and impecuni:ous position at the time
when he borrowed the money.
'
Vermon v. Bethell, (1762) 2 Eden no; 28 E. R. 838 and D,
mid C. Kteg!fager v. New Patagonia Meat and Cold Storage Company Ltd .. [1941] A.C. 25, relied on.
Santley v. !Yi/de, (1913) L. R. 41 I. A. 84 and Mohatiimad
Sher Khan v. Seth Swami Dayal, (1912) L. R. 49 I. A. 60, referred to.
Consequently'. in a suit for redemption where the mortgage
deed, by two distinct and independent terms .provided that (l) the
mortgage shall not be redeemed for eightyfive years and (2} 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 t"t
was clearly evident from the facts and circumstances of th.e case
that the bargain was quite fair and one as between parties deali'ng
with each other on an equal footing:
Htld, that the term providing for a period of l;lightyfive ye'ai'S
W.ls not a clog on the equity of redemption and the tnere length
af the period could not by itself. lead to an inference tha.t the bargain was in.any way oppress:ve or unreasonable. The term was
enfotceablE'. in law and the suit for redemption filed before the
·expiry.of the period was pretnature.
Held', further, that the term that .on th.e failure of the mort·
'iag-0t ta Eedeem within the specified periocl o! ·six manths; ll'e
o~
.
•
April z5.
Seth Ganga Dhar
v.
Shankar Lal
0- Others
Stirkar ].
510
StJPR1ilME1 COtJR'r RlilPOR'rS
tt959]
would lose his right to do so and the mortgage deed was to be
deemed to be a deed cif sale in favour o the mortgagee, was
clearly a clog on 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 clearly
apart.
C1v1L APPELLATE JuRISDIOTION: C'ivil Appeal No.
150 of 1954.
•
Appeal from the judgment and decree dated March
21, 1950, of the Court of Judicial Commissioner at
Ajmer in Civil First Appeal No. 13 of 1948, arising
out of the judgment and decree dated March 30, 1948,
of the Court of Sub-Judge. 1st .Class, Ajmer, in Civil
Suit No. 1 of 1947.
·
Tarachand Brijmohan Lal, for the appellant.
S.S. Deedwania and K. L. Mehta, for the respondents.
1958. April 15.
The Judgment of the. Court was
deliver0d by
SARKAR J.-This appeal arises out of a suit for the
redemption of a mortgage dated August 1, 1899.
The
property mortgaged was a four-roomed shop with
certain appurtenances, standing on a piece of I.and
measuring 5 yards by 15 yards in Kaya Bazar, Ajmere.
The mortgage was created by Purshottamdas who is
now dead and was in favour of Dhanrupmal, a res,
pondent in this appeal. The mortgage instrument
stated that the property had been usufructuarily
mortgaged in lieu of Rs. 6,300 of which Rs. 5,750 had
been left with. the mortgagee to redeem a prior mort.
gage on the same and another property. It also provid,ed that on redemption of the prior mortgage, the
possession of the shop would be taken over and retained by the Illortgagee, Dhanrupmal, who would appropriate its rent in lieu of interest on the money ad vane·-·•
ed by him and the possession of the other property
covered by the prior mortgage, being a share in a
Kacheri, would be made over to the mortgagoi;,
Purshottamdas. The provisions in the mohgage
instrument on whi1ih the present dispute turns were in
these terms :
•
•
}. •
•
(
•
\
"' ·•
• t
s.c.R.
SUPREME' COURT REPORTS
511"
"1 or my heirs will not'be entitled to redeem the
r958
property for a period of 85 years. After the . expiry 5 l -. Dh .
of 85 years we shall redeem it within· a period . of six
et' Ga~~a
4
•
·. months. In case we do not redeem within a period of
Shankai Laf
·six months, .then after the expiry of the stipulated
& others
period;!, my .heirs, and legal representatives shall have
no claim over the mortgaged property, and the mortSarkar J.
ga~e shall have no claim to get the mortgage money
and the lagat.(i. e., repairs) expenses that may be due
· at the time of default. In such a case this very deed
will. be deemed to be a sale deed. There will be no
need of executing a fresh sale· deed. The expenses
spent in repairs and new constructions 'Yill be paid
along with the mortgage money at the 'time of. redemption according to . account produced by the mortgagee.':
-
.
The mortgagee, Dhanrupmal, duly redeemed. the
. earlier mortgage and, went into possession of the .shop
while possession of the Kacheri was delivered to the
mortgagor. On April 12, 1939, Dhanrupmal assigned
. his rights under the mortgage to Motilal who died later
. and whose estate is now represented by his sons, who
are the other respondents in this appeal.
The estate
of Purshottamdas, the original mortgagor, is now
represented by his son, the appellant.
· ·
. On January 2, 1947, the appellant filed the suit in
the. Court of the Sub-Judge, Ajmere, against the res-
. ponde:qts.
The suit was contested by the sons
1 of
Motilal,.the assignee of the mortgage, who are th<:l only
respondents appearing in this. appeal and whom we
shall hence, hereafter refer to as the respondents .•
. They said that the suit was premature as under the
mortgage contract there was no right of redemption for
eightyfive years aftel' the date of the mortgage, that is
to say, till August l, 1984. The learned .Sub-Judge,
purporting to follow a decisi9n of the Judicial Commissioner, Ajmere, to whom he was subordinate, held that
the provision postponing redemption for eightyfive
years was invalid as it amounted to a clbg on the
equity 'Of re\iemption. He, therefore, passed a _preliminary decree for redemption. On appeal, the learned
Judicial Commissioner, Ajme;e, h('.lld, tha~ .the decisio12-
•
512
SUPREME COURT REPORTS
[1959]
'958
which the Sub.Judge had purported to follow wa3
h
-
1
distinguishable. He examined 11. large number of cases
Set Ganga D ••Y
b"
d
h
1 ·
h
h
v.
on the su iect an . came to t e cone usron t at t e
Sha>1kay L,,z
provision in question did not amount to a clog on the
& 01i.m
equity of redemption. He, therefore, allowed the
appeal and dismissed the appellant's suit. From this
SaYka• .J.
decision the appeal to this Court arises.
It is admitted that the case is governed by'the
Transfer of Property Act. Under s. 60 of that Act, at
any time after the principal money has become due,.
the mortgagor has a right on payment or tender of
the mortgage money to require the mortgagee to
reconvey the mortgage property to him. The right
conferred by this section has been called the right to
redeem and the appellant sought to enforce this right
by his suit. Under this section, however, tha,t right
can be exercised only after the mortgage money has
become
due.
In Bakhtawar Begum v. Husaini
J{hanam ('), also the same view was expressed in· these
words:
"Ordinarily, and in the absence of a special condi.
ti on entitling the mortgagor to redeem during the term
for which the mortgage is created, the right of redemption can only arise on tho expiration of the specified
period."
Now, in the present case the term of the mortgage is
eighty.five years and there is no stipulation entitling
the mortgagor to redeem during that term. That term
has not yet expired. The respondents, therefore,
contend that the suit is premature and liable to be
. dismissed.
The appellant's answer to this contention is that the
covenant creating the long term of eightyfive years
for the mortgage, taken along wi~1 the provision that
the mortga,gor must redeem within a period of six
months thereafter or not at all and the other terms of
t.he mortgage and also the circumstances of the case,
is really a clog on the equity of redemption and is
therefore invalid.
He contends that, in the result the
mortgage money had been due all along and the suit
was not premature.
•
(1) (1913) L.R. 41 I.A. 84, 89.
•
r'
•
'
t •
/
S.C.R.
SUPREME COURT REPORTS
513
The rule agi,tinst clogs on the equity of redemption
r958
is that, a. mortgage shall always be redeemable and a 5 ";--·
. ""
mortgagor's right to redeem shall neither be taken · '
1
a;~
11
D
'
away nor be limited by any contract between the
Shanllar Lal
parties.. The principle behind the rule was . expressed
& Others
by Lindley M. R. in Santley v. Wilde (1) in these
words :
Sarkar J.
•
"The principle is this: a mortgage is a conveyance
of hind 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 pro·
vision to the contrary notwithstanding. That, in my
opinion, is the law. Any provision inserted to preverit
redJlmption 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. One thing, . therefor~, is clear,
namely, that the term in the mortgage contract, that
on the failure of the mortgagor to redeem the mort.
gage within the specified period of six months the
mortgagor will have no claim O\;'er the mortgaged pro.
perty, and the mortgage deed will be deenied to be a
deed of sale in. favour of the mortgagee, cannot be
sustained. It plainly takes away altogether, . the
mortgagor's right to redeem ·the mortgage after the
specified period. This is not permissible, for "once a
mortgage always a mortgage" and therefore· always -/
redeemable. The same result also follows from s. 60
of the Transfer of Property Act. So 1t was said in
'Mohammad Sher Khan v. Seth Swami Dayal (2):
"An anomalous mortgage enabling a mortgagee
a,fter a lapse of time and in the absence of redemption
to~nter and take the rents in satisfaction of the interest
would be perfectly valid if it did not also hinder an
(I) [1899) 2 Ch. 474·
(2) (1921) L.R. 49 I.A. 6o, 65 . •
•
514
SUPREME COURT REPORTS
'[1959]
I958
existing right to redeem. But it is this that the present mortgage undoubtedly purports to effect. It is
S,cth Ga11gtJ Dhar
l
d
b f
fi
d
v.
express y state to e or 1ve years, an
after that
Shankar Lal
period the principal money became payable. This,
. &· Othm
under s. 60 of the Transfer of Property Act, is the
event on which the mortgagor had a right on payment
sa.·kar J.
of t.~e mortgage money to redeem.
,
The section is unqualified in its terms, and con-•
tains no saving provision as other sections do in favour
. of contracts to the contrary. Their lordships therefore see no sufficient reason for withholding from the
words 0f the section their full force and effect_"
Under the section, once the right to redeem. has
arisen it cannot be taken away. The mortgagor's
. right to redeem must be deemed to continue <;iven after
the period of six months has expired and the .attempt
to confine that right to that period must fail.
'i'he
term in .the mortgage imtrument providing that the
mortgage can be redeemed only within the periocj. of
six months and not thereafter must be held to be invalid and ignored. The learned Judicial Commissioner took the same view and this has not. been
challenged in this appeal on behalf of the respondents .
. With this term however this case is not really concerned. Learned advocate for the appellant directed
his a.ttack on the term in the instrument of mortgage
· that it will not be redeemable for eightyfive years. He ·
contended that this term a.mounts to a clog on ·the
equity of redemption.
We wish to observe here that
the learned advocate did not contend that the invalidity, as we have earlier held, of the term taking away
the right to redeem the mortgage after the period of
six months makes the term fixing the period of the
mortgage at eightyfive years invalid. This latter
term stands quite apart. It only fixes the time when
the principal s1frn is tc)'become due, thatis, when the
right to redeem will accrue and has, therefore, nothing
to do with a term which provides when that right will
be lost.
The invalidity of one does not make the
'other also invalid.
The term providing that the right to redeem will
ii,rise after eightyfive years does not,. of course, take
- .
•
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•
..,..
S.O;'BJ.
SUPREME COURT 'REPORTS
·515
away the mortgagor's. right to redeem and .is not,
z958
therefore, in that sense, a clog on the equity of redernp- s LG-·-. DL
·
I d
h
·
I f th
· · ht t
' 1"
anga
"
4
'
t1on. · t oes, . owever prevent accrua o . e rig
o
v.
redeem for the pedod mentioned. Is it then, in so far
shankar LaI ·
as it prevents the right to redeem from accruing for a
& Others
time, a clog ?
.
.
As we have already said, the right ·to redeem .. does
Sarkar J.
'not arise till the principal money becomes due: When
the principal sum is to become due· must of. co11rse
depend on the contract between the parties. IIi the
present case the parties have agreed that. the right to
redeem will· arise eightyfive years· after the date of the
mortgage, that is to say, the principal money will
.1
then become due. The appellant says that he. should
be relieved from this bargain that he has; made.
This ·
is tl;ie contention that has to be examined.
The rule against clogs on the equity ·of redemption
no d.oubt 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 a voided'. 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., The question 1s, is the term now under consideration such that
a Court will exercise its power to grant relief against
it? That depends on the extent of this po~er. It is a
power evolved in 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 will be enough for this purpose to· refer
to two authorities·on this question .
. In a very early case, namely, Vermmi v. Bethell (1!,
Earl of Northington L. C. said,
·
. " This court, as a court of conscience, is very
. jealous of persons taking securities for a loan,. and
copverting such securities into pui:chases. And therefore• I take it to be an established rule, that a mortgagee can never provide at the time of making the
{I) (i762) 2 Eden no, u3; 28 E.R. 838, 839.
• I
•
. .
Sdlh Ganga Dhar
v.
Shanknr Lal
~Others
SMbr ].
516
SU1?tt:EM:E COURT ttEPORTS
[1959]
loan 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 crafty may impose upon -
them."
In comparatively recent times Viscount Halda1ie -
L. C. repeated the same view when he said in G. and
G. Kreglinger v. New Patagonia Meat and Gold Storage
Company Ltd.('):
.
"This jurisdiction ·was merely a special application of a more general power to relieve against
penalties and to mould th~m into mere securities. The
case of the coμimon 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 fcoffor 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 be should lose the land for ever. What made
the hardship on the d~btor a glaring one was that the
debt still remained unpaid and could be recovered
from the feoffor notwithstanding that he had actually
forfeited the land to the mortgagee. Equity, therefore, at an 1early date began to relieve against what
was virtqil.lly 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, t!w real nature and substance of the transaetion, and if it turned out to be in truth one of mortgage simply, to place it on that footing. It was, in
ordinary cases, only where there was conduct which
the· Court of Chaneery regarded as unconscientious
that it interfered with freedom of contract. The fend-
"ing of money, on mortgage or otherwise, -was looked
o(1)
[19l~J A.C. 2~, 3$0 36,
. .
I '
'
S.C.R.
SUPREME COtJRT REPORTS
517
on with suspicion, and the court was on the alert to
r95~
discover want of conscience in the terms imposed by
1 d
,,
Seth G.anga. Dh11r
en ers.
v .
. The reason then justifying the Court's power to
shankar .Lal
relieve a mortgagor from the effects of his . bargain is
& Others
its want of conscience.
Putting it in more familiar
language the Court's jurisdiction to relieve a mortgagor
Sar.kar J.
frl'.lm his bargain depends on whether it wa~ obtained
by taking ad vantage of any difficulty or embarrassment that he might have been in when he borrowed
the moneys on the mortgage. Was the mortgagor
oppressed ? Was he imposed upon ? If he was, then
he may be entitled to relief;
We then have to see if there was anything imcon- •
scionable in the agreement that the mortgage would not
be redeemed for eightyfive years. ls it oppressive ?
Was he forced to ·agree to it because of his difficulties ?
Now this question is essentially one of fact and has to
be decided on the .circumstances of each case. H
would be wholly unprofitable in ·enquiring into this
question to examine the large number of reported cases
on the subject, for each turns on its own facts.
,
First then, does the length of the term-· and in this
case it is long enough being eightyfive years-itself
lead to the conclusion that it was an oppressive term ?
In our view, it does not do so. It is not necessary for
us to go so far as to say that the length of the term of
the mortgage can never by itself show that the bargain
was oppressive.
We do not desire to say anything on
that question in this case.
We think it enough to say
that we .have nothing here to show tha·t the length Qf
the term was in any way dis-advantageous to the
mor_tgagor. It is quite conceivable that it was to his
advantage. The suit for redemption was brought over
forty-seven years after the date of the ·mortgage. lt
seems to us impossible that .if the term wa~., oppressive,
that was not realised much earlier and the suit brough-t
within a short time of the mortgage. The learned
Judicial Commissioner felt that the respondents' contention that the suit had been brought as the price of
landed property had gone · up after the war, wa.$ ·
•
•
518
SUPREME COURT REPORTS
[1959]
z958
justified. \Ve are not prepared to say that he was wrong
in this view.
We cannot also ignore, as appears from
Seth Ganga Dhar
v.
a large number of reported decisions, that it is· not
Shankar Lal
uncom:mon in various parts of India to have long term
& Otiim
mortgages. Then we find that the property· was subject to a prior mortgage. We are not aware what the
Sarkar J.
term of that mortgage was.
But we find that that
mortgage. included another property which became
freed from it as a result of the mortgage in suit.
This
would show that the mortgagee under this mortgage
Was not putting any pressure on the mortgagor. That
conclusion also receives support from the fact that the
mortgage money under the present mortgage was more
than that under the earlier mortgage but the mortgagee in the. present case was satisfied with a smaller
security.
Again, no complaint is made that the
interest charged, which was to be measured by the
rent of the property, was in any manner high. All
these, to our mind, indicate that the mortgagee had
not taken any unfair advantage of his position as the
lender, nor that the mortgagor was under any financial embarrassment.
It is said that the mortgage instru-ment itself indicates that the bargain is hard, for, while the mortgagor
cannot redeem for eighty-five years, the mortgiigee is
free to demand payment of his dues at any time he
likes.
This contention is plainly fallacious.
There is
nothing in the mortgage instrument permitting the
mortgagee to demand any money, and it is well settled
that the mortgagee's right to enforce the mortgage
and the mortgagor's right to redeem ·are co-extensive.
Then it is said that under the deed the mortgagee
can spend any amount on repairs to the mortgage property and in pntting up new constructions there. and
the mortga~or could only redeem after paying the
expenses for these.
w·e are unable to agree that· such
is the effect of the mortgage instrument. We cannot
lose sight of the fact that the mortgaged shop and the
area of the land on which it stood were very small. It
was not possible to spend a large sum on rep;i.irs or
· construction there. Furthermore, having agreed to
8~ years as th~ term of the. mortgage, the parties must
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S.C.R.
SUPREME COURT REPORTS
519
:have imagined that during this long period repairs
·and constructions would become necessary. It is only
:such necessary repairs as are contemplated by the
instrument and we do not consider that it is hard_ on
·the mortgagor to have to pay for such repairs and
·construction when he redeems the property and gets
the benefit of the repairs and construction. Neither
do we think that there is anything in the contention
that under the document the mortgagor was bound to
accept whatever was shown
in the r!iortgagee's
account as having been spent on the repairs and construction. That is not, in our view, the effect of the
relevant clause which reads, "The expenses spent in
repairs and new constructions will be paid ...... according to the account produced by the mortgagee. "
All
that it means is that ii} claiming _mcm~y~ on. account
'of repairs and construction the mortgagee will have to
show from his account that he spent these moneys.
It is really a safeguard for.the mortgagor. It.was also
said that all the terms in the deed were for the benefit
of the mortgagee and that showed that the bargain was
a hard one.
VVe do not think that all the terms were
for the benefit of the mortgagee, or .that what there
was in the instrument was for his benefit and indicated
that the mortgagee had forced a hard bargain on the
mortgagor.
VVe have earlier said how the bargain
appears to us to ha ye been fair and one as oetween
part'ies dealing with each other on equal footing. .. .
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'Ve have no evidence in this case of the circumstances existing at the date of the mortgage as to the·
pecuniary. condition of the mortgagor or as to anything
Blse from which we may come to the conclusion that
:the mortgagee had taken advantage of the difficulties
.of the mortgagor a:nd imposed a hard bargain on him.
It. was said that the fact that the propert}' was subject
to a prior mortgage at the date of the mortgage in suit
indicates the 'impecunious position of the mortgagor.
We· are unable to agree with thi1;1 contention. Every
debtor is not necessarily impecunious.
The mortgagor
'certainly derived. this advantage from that mortgage
that he was able to free from the earlier mortgage the·
~ach,eri and h.e has been.in enjoy~ient of it ev;er sin_ce.
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Seth Gang" Dhllf
v.
Shankar Lal
&- Others
Sark/Jr J.
, __ ..
I
Sdh Ganga Dhar
v.
Slta11kar ·Lal
6' Others
Sarkar].
April Ij.
520
SUPREME COURT REPORTS
[1959)
That, to our mind, indicates that the bargain had been
freely made. There was 'nothing else to which our
attention was directed as showing that the bargain
was hard. 'Ve, therefore, think that the bargain was
a reasonable one and the eighty-five years' term of the
mortgag\l should be enforced.
vV c then come to the
conclusion that the suit was premature and miist
fail.
.
In the result we dismiss this appeal with costs.
Appeal di.smissed .
SALES TAX OFFICEH, CUTTACK
A::'\D ANOTHER
v.
M/s. B. C. PATEL & CO.
•
(S. Il. DAS C. J., VENKATARAMA AIYAH, S. K. DAS,
A. K. SARKAR and VIVIAN BosE JJ.)
Sales Tax-l\1otification e11jorci11g the charge not wholly in consnnance tf'ith t.lze charging provision-Validity-Assessn1cnt for
periods both before .and aftci· the Constituti.011-Legality:-Orissa Sales
Tax Act, r947 (Omsa XIV of r947), s. 4-Consl1tution of India,
Art. r86.
This appeal by the Sales Tax authorities was directed against
the judgment and order of the Orissa High Court, passed under
Art. 226 of the Constitution, quashing five orders of assessment
covering five quarters made against the rPspondents \Vho carried
on the business of collection and sale of l{endu leaves in the erst-
\vhile Feudatory State of Pallahara to \vhich, on its 1nerger into
the province of Orissa on January 1, i948, the provisions of the
Orissa Sales Ta.x Act, 1947, were extended on March r, 1949· On
the same date the Government of Orissa issued a notification
under s. 4(1) of the Act which was in the following terms:
"In exercise of the powers conferred by sub-section (1) of
Section 4 of the Orissa Sales Tax Act, 1947 (Orissa Act XIV of
1947), as applied to Orissa State, the Government of Orissa are
. pleased to appoint the 31st March, 1949· as the date with effect
from \Vhich every dealer \vhose gross turnover during the year ending the 31st Marci], 1949· exceed~d Rs. ~,ooo shall be liable to pay
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