Judgment:
R.L. Anand, J.
1. Unsuccessful plaintiff Sulakhan Singh has filed the present Regular Second Appeal and it has been directed against the judgment and decree dated 25.5.1984 passed by the Court of Additional District Judge, Gurdaspur, who affirmed the judgment and decree dated 11.3.1983 passed by the Court of Additional Senior Sub Judge, Batala, who dismissed the suit of plaintiff-appellant for declaration, as prayed for.
2. The brief facts of the case are that Sh. Sulakhan Singh, plaintiff-appellant, filed a suit for declaration to the effect that registered mortgage deed dated 12.6.1961 regarding land measuring 21 kanals, 17 marlas fully described in the head-note of the plaint, situate in village Chima Khudi, Tehsil Batala, executed by the plaintiff in favour of the defendants Sohan Singh, Atma Singh, Darshan Singh, Bhajan Singh and Amar Singh, was null and void being contrary to law and as a consequential relief suit for possession of the said land or in the alternative suit for possession of the land on the plea that as mortgage-money has already been received by the defendants, who enjoy profits of the said land, the mortgage debt has been discharged under the Punjab Agricultural Indebtedness (Relief) Act, 1975 (hereinafter referred to as 'the Act').
3. The case set up by the plaintiff is that land measuring 21 kanals, 17 marlas fully mentioned in the plaint was mortgaged with the defendants for nine years on 18.5.1961 for a sum of Rs. 2500/-. It is contended that though the period for redemption was fixed as nine years, the defendants took undue advantage of the illiteracy and simplicity of the plaintiff and they colluded with the scribe of mortgage deed and got recorded '90' years in the mortgage deed instead of '9' years. The plaintiff alleged that his liability had already been discharged because the defendant-mortgagees had already received 1-1/2 times the amount of mortgage money.
4. Notice of the suit was given to the defendants, who resisted the claim of the plaintiff and it was pleaded by them that land in question was mortgaged for a period of 90 years and not 9 years, as alleged by the plaintiff and there was no collusion between them and the scribe. The defendants denied the other allegations of the plaintiff regarding the discharge of the debt and prayed for dismissal of the suit.
5. From the above pleadings of the parties, the trial Court framed the following issues:-
1. Whether the period of 90 years for redemption of the mortgage was got incorporated in fraud?
2. If issue No.1 is not proved whether the term is a clog on the right on redemption?
3. Relief.
The parties led oral and documentary evidence in support of their case and on the conclusion of the trial, all the issues were decided against the plaintiff and his suit was dismissed vide judgment and decree dated 11.3.1983.
6. The plaintiff filed first appeal in the Court of Additional District Judge, Gurdaspur who vide his judgment and decree dated 25.5.1984 dismissed his appeal. Still aggrieved by the judgments and decrees of the Courts below, present appeal has been filed by the plaintiff-appellant, which is being disposed of with the assistance of Mr. Hemant Sarin, Advocate, who appeared on behalf of the appellant.
7. Learned counsel for the appellant submitted that both the Court below did not view this case in the correct perspective. Firstly, the trial Court erred in not framing the proper issues and it was incumbent upon him to frame proper issues which arose from the pleadings of the parties. The non-framing of the proper issues with regard to whether the mortgage executed by the plaintiff stood discharged in view of the Act or not is a serious infirmity in the judgment of the trial Court and this aspect has also not been considered by the first appellate Court. The learned counsel then stressed that the suit of the plaintiff is liable to be remanded to the trial Court along with the directions to frame proper issues. Secondly, it was argued by the learned counsel for the appellant that even the findings of the Courts below on issues Nos.1 and 2 are erroneous. It is proved by circumstantial evidence that the defendants played fraud upon the plaintiff with the assistance of Rattan Chand scribe, who is of a shady character and who had already been convicted for purgery. It does not appeal to reason that the plaintiff would virtually sell his land measuring 21 Kanals 17 Marias on receipt of Rs. 400/- under mortgage deed dated 12.6.1962. It was also submitted by Mr. Sarin that the clause got incorporated by the defendants in the mortgage deed amounts to a clog on the equity of redemption and the defendants have taken undue advantage of the poverty of the plaintiff and this type of clause in the mortgage deed is not only oppressive but creates so much hardship for the plaintiff that he is entitled to get a decree for possession on payment of Rs. 2500/- only.
8. After considering the submissions raised by the learned counsel for the appellant, I am of the view that there is sufficient force in the submissions. The framing of the issues is a paramount duty of the Court irrespective of the fact whether a particular plea has been pressed by the parties to the suit or not. In the present case in para No.4 of the plaint, the plaintiff had specifically alleged that he was a small farmer and possessed little land and under the Act his debit stood discharged as the mortgages has already received 1-1/2 times amount of the original mortgage money advanced to the plaintiff. This part of the allegation made by the plaintiff has also been denied by the plaintiffs in the written statement. In these circumstances it was the duty of the trial Court to frame the proper issues as to whether the liability of the plaintiff stood discharged under the Act or not. This aspect has also not been taken note of by the first appellate Court. The suit of the plaintiff can be remanded to the trial Court on this aspect alone but this Court would refrain itself from doing so because it would add further miseries to the plaintiff. After perusing the record this Court is of the view that the findings of the Courts below on issues Nos. 1 and 2 are also erroneous. As the suit of the plaintiff is liable to succeed on issues already framed by the trial Court, therefore, it will not be fair on my part to remand the case because the plaintiff is going to succeed after a period of 36 years and remanding the case and leaving the parties to another round of bout, would mean the victory of the defendants which they otherwise were not entitled right from the very beginning as they had committed a fraud upon the plaintiff and they were responsible in getting incorporated such an oppressive clause in the mortgage deed as it amounts to a clog on the equity of redemption. The record of the trial Court reveals that by the mortgage of the land, only a sum of Rs. 400/- was advanced to the plaintiff. The rest of the amount, i.e. Rs. 2100/- was allegedly received by the plaintiff on the earlier occasion. It is also proved on the record that earlier the plaintiff mortgaged his property for a sum of Rs. 800/- only and the period of redemption was fixed as four years. The plaintiffs poverty becomes clear when he could not redeem the property on payment of Rs. 800/- and his debt multiplied to Rs. 2100/- and in this manner he further executed the mortgage in dispute. A single circumstance sometimes becomes a conclusive proof to establish that the fraud has been played upon the plaintiff. It is true that fraud cannot be proved by direct evidence but by the attending circumstances and it can certainly be established that the defendants had played a fraud upon the plaintiff. As I have just staled above that the earlier mortgage was for a period of four years, in these circumstances it is highly unbelievable that the plaintiff would mortgage his large chunk of land measuring 21 Kanals and 17 Marias for a sum of Rs. 2500/- and when he was only going to receive a sum of Rs. 400/- only through this mortgage after giving adjustment of Rs. 2100/. The scribe in this case Rattan Chand is also a man of shady character and he has already been convicted for purgery. It is not believable that the plaintiff would mortgage his land for a period of 90 years, practically on receipt of Rs. 400/- only. He could easily discharge his debt of Rs. 2100/- by sale of some Marias of land in the year 1961 itself. It has been held in Pomal Kanji Govindji and Ors. etc. v. Vrajla Karsandas Purohit and Ors. etc., AIR 1989 Supreme Court 436, wherein it was held as under:-
'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 docs, it is bad. Whether it does or does not, must, however, depend upon the facts and circumstances of each case.'
It was further held -
'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. Courts must take note of the time, the condition, the price spiral, the term bargain and other obligations in the background of the financial conditions of the parties. Whether a mortgage transaction amounts 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 look with disfavour at clogs on the equity of redemption. Section 60 of the Transfer of property Act, in India, also recognises the same position.'
Both the Courts below had placed reliance on Chaturbhai Valdas and Ors. v. Bai Jivi and Ors., AIR 1973 Gujarat 93; and Ganga Dhar v. Shankar Lal and Ors., AIR 1958 S.C. 770, while dismissing the suit of the plaintiff-appellant and held that the plaintiff must be aware of the natural consequences of his contract and that the long period of redemption mentioned in the mortgage deed itself does not amount to a clog on the equity of redemption. With due respect to the Courts below, I am of the opinion that both the authorities have not been considered in their right perspective. In Chaturbhai Valdas's case (supra), which is based on Ganga Dhar's case (supra), the intention of the High Court was to establish the law to the effect that mere long period of redemption of mortgage would not itself amount to a clog on the equity of redemption in the absence of other evidence showing that the mortgage has taken unfair advantage of his position as a lender. In the present case there were clinching factors in favour of the plaintiff to show that the defendants had played fraud upon the plaintiff in connivance with Rattan Chand scribe by incorporating a clause of 90 years as a period of redemption instead of 9 years. It is a categorical case of the plaintiff that he fixed the period of redemption as 90 years. The Courts below had further taken the view that the present suit had been instituted in the year 1981, i.e., after 20 years of the mortgage. Therefore, the plaintiff must be aware that he fixed the period of redemption as 90 years, otherwise, he would have filed the suit somewhere in the year 1970. The reasons advanced by the Courts below are not sound. Rather it shows that the plaintiff was so poor that he could not file the suit earlier, seeking declaration that the fraud had been played upon him and that he was entitled to seek redemption of the property.
9. In this view of matter, I allow this appeal, set aside the judgments and decrees of the Courts below and grant a declaration to the plaintiff to the effect that the registered mortgage deed dated 18.5.1961, registered on 12.6.1961, regarding the land measuring 21 Kanals 17 Marias, fully mentioned in the plaint, situated in village Cheema Khudi, Tehsil Batala, executed by the plaintiff in favour of the defendants, were null and void being contrary to law. I further grant a decree for possession to the plaintiff with respect to the said land without payment of any amount to the defendants as the defendants had already enjoyed the profits from the mortgaged land, which stands discharged also on account of the provisions of the Punjab Agricultural Indebtedness (Relief) Act, 1975. There will, however, be no order as to costs.