J. N. BHATT, J. ( 1 ) THE vital and substantial question as to whether the stipulation incorporated in the mortgage deed for the postponement of redemption for spell of 99 years conjoint with the right enabling the mortgage to rebuild or make the superstructure from the foundation for his use and convenience on the mortgaged property and then to be entitled to be reimbursed at the time of redemption would tantamount to a CLOG on the Equity of Redemption has again surfaced in this appeal alongwith incidental and attendant some other questions. In order to determine and adjudicate upon the questions in the focus it would be expedient to set out and have a close look into the factual scenario at the threshold. ( 2 ) THE disputed transaction of mortgage came to be executed on lunar date 9th of Chaitra Sud S. Y. 1999 (Monday) corresponding English date 13/05/1943 in favour of the creditor one Shri Ghanchi Osman Ismail (original mortgagee) by the debtor one Shri Gosai Dayalgarji Laxmangarji administrator of one Math known as Gosai Ghanshyamgarji Nirmalgarji of the city of Mandvi (original Mortagagor) in respect of one property situated out side Bhujwala Naka on public road leading to Mota Salaya having two doors two dhaliyas two shops for the consideration of mortgage money of Royal Koris 31 0 equivalent to Rs. 10 333 ps. (mortgaged property ). The mortgage deed was produced at Exh. 40 in the Trial Court. As per the mortgage document the enclosed plot with superstructure standing thereon and it had two entrances one on the eastern side and the another on the northern side. The superstructures were covered. There was bath room well and there were two shops on the said mortgaged plot. In this plot on the northern side there was a room with a well prepared and covered with country tiles. This big room was situated east-west on the open plot of the mortgaged property and it is shown divided. They had four entrances and six windows falling in the enclosed plot of the mortgaged property and towards the southern side one entrance and one window was facing east towards the public road. There were two shops and the northern side facing Raj-Marg (public road ). An elaborate description of the mortgaged property as it existed at the time of the transaction is found in the mortgage document at Exh. There were two shops and the northern side facing Raj-Marg (public road ). An elaborate description of the mortgaged property as it existed at the time of the transaction is found in the mortgage document at Exh. 40. Subsequently at the time of filing of the suit many changes came to be made by the mortgagee pursuant to the stipulation in the mortgage deed. In short it is very clear from the mortgage transaction at document Exh. 40 that it is a big property and as per the case of the plaintiffs it is mortgaged with possession. ( 3 ) THERE is also no dispute about the fact that the mortgagee was given exclusive possession of the mortgaged property with a further right to make reconstruction from foundation after demolition of the part or whole then existing constructions standing on the said plot of mortgaged property. He was also entitled to completely change the identity position of the mortgaged property by spending money without any monetary ceiling on cost of construction. There is a term in the document at Exh. 40 that the mortgagor can redeem only after the expiry of the period of 99 years and that too on making payment of principal amount together with full payment of expenses. ( 4 ) SINCE the transaction is an old one mortgaged transaction has passed several hands there are several assignees. Therefore it would be necessary to high light the change of guards on either side of the party to the document. The original mortgagor was one Shri Gosai Dayalgarji Mathadhipati of the said Math. Thus he was the original executant of the mortgage transaction at Exh. 40. After his death one Rugnathgarji had become his successor who was his disciple and after the death of Rugnathgarji his disciple one Shri Govindgarji became successor of the original mortgagor who was also the plaintiff. Thus Gusai Govindgarji Rugnathgarji instituted a Special Civil Suit No. 48 of 1974 in the Court of the Civil Judge (Senior Division) Bhuj for redemption of the mortgage-property against the original mortgagee. ( 5 ) THE original plaintiff died on 3-7-1982 living his two disciples namely (1) Vinodgarji and (2) Nayangarji. Later on Vinodgarji relinquished his right in favour of Nayangarji in a civil suit after entering into a compromise. ( 5 ) THE original plaintiff died on 3-7-1982 living his two disciples namely (1) Vinodgarji and (2) Nayangarji. Later on Vinodgarji relinquished his right in favour of Nayangarji in a civil suit after entering into a compromise. Thus Nayangarji is the successor of the original plaintiff who is the respondent No. 1/2 in this appeal and pending the appeal the mortgaged property is purchased with a right to equity of redemption of mortgage by one Shri Sanghavi Dilipkumar Gumatlal who is respondent No. 2 by virtue of the sale deed dated 20/01/1982. Thus the respondents in this appeal are the successors in interest of the original plaintiffs. ( 6 ) IT would be equally interesting at this juncture to have a look at the change in the succession and interest on the side of mortgagees. As stated hereinabove Exh. 40 is the original mortgage document which is in favour of one Shri Ghanchi Osman Ismail who has advanced the then Royal Currency (Koris) to the original mortgagor as stated hereinbefore. There was transfer of interest by the original mortgagee. The first transfer came to be effected on 6/12/1957 by virtue of document at Exh. 45 in favour of Kachchh Kadva Patidar Samaj. The second transfer of interest came to be effected by Exh. 42 on 7-11-1964 in favour of Vora Asgar Adamali and Vora Abbas Hushen-Managers of Asgarali Abbasali and Co. The third transfer of interest came to be effected on 2-8-1967 by virtue of a registered plaintiff Ghanchi Alimamad Ummar. After the death of the original defendant Alimamad Ummar his heir Ghanchi Musa Ali Mamad succeeded who transferred his interest in the mortgaged property as mortgagee to one Shri Chamanlal Lalji Shah on 8-3-1988 who came to be impleaded as appellant by virtue of the order passed by this Court in Civil Application No. 29 of 1986 by invoking the powers under Order 22 Rule 10 of the Code of Civil Procedure. ( 7 ) WITH a view to precisely high light the summary of change of the guards on both the sides following table may be useful: plaintiff side Defendant side (Original (Original mortgagee) mortgagor 1 Gosai Dayalgar 1. Ghanchi Osman Ismail laxmangar (Orig. Mortgagee as per Exh. 40) (Original mortgagor) 2 Rugnathgarji 2. Kutchchh Kadva (First transfers patidar Samaj of mortgagor as per Ex. 41 dated 6 First Transferee 3 Govindgarji 3. Asgarali Abasali and Co. Ghanchi Osman Ismail laxmangar (Orig. Mortgagee as per Exh. 40) (Original mortgagor) 2 Rugnathgarji 2. Kutchchh Kadva (First transfers patidar Samaj of mortgagor as per Ex. 41 dated 6 First Transferee 3 Govindgarji 3. Asgarali Abasali and Co. (Second owners and Managers Transfers) vora Abbashushen as per Ex. 42 dated 7 (2nd Transferee) 4 Vinodgar (Resp. 4. Ghanchi Alimamad No. 1/1) Umar (Orig. deft.) third Transfers) (Third Transferee) 5 Nayangar (Rosp. 5. Ghanchi Musaali no. 1/2) mamad-Heir and legal (Fouth representative transfers) of the original deft. 6chamanlal Lalji Shah (4th Transfree) Successor of mortgagee. (Appellant herein) -- ( 8 ) FOR the sake of brevity and convenience the parties are hereafter addressed as they were arraigned in the Trial Court. The original plaintiff thus had mortgaged the property with the original defendant for 31 0 Koris-equivalent to Rs. 10 333 ps. by virtue of the registered mortgage deed as aforesaid. The plaintiff inter alia contended in the plaint that the period of 99 years coupled with a condition or right to reconstruct from the foundation on mortgaged property after demolition with unlimited power and amount and the liability on the part of the mortgagor to pay mortgaged amount and the expenses of the construction amounted to a clog on the equity of redemption because the ancesters of the plaintiff had to agree to the said terms as the original mortgagee was in bad need of money. It was further contended that as per the terms of the mortgage deed the mortgagee had right to transfer the property and to make such additions alternations and construction as he liked and thought proper and the expenditure incurred without any limit was to be recovered at the time when the property was to be redeemed. Such terms are illegal and are clogs on the Right of Redemption. Therefore a suit was filed before the Trial Court for redemption of the suit property. ( 9 ) THE original defendants appeared and resisted the suit before the Trial Court by filing written statement at Exh. 17 contending inter alia that the suit was time barred the plaintiff was not entitled to redemption. It was also contended that in view of the custom prevailent in the then State of Kutchchh the disputed document was not a mortgage transaction but it was an absolute sale. 17 contending inter alia that the suit was time barred the plaintiff was not entitled to redemption. It was also contended that in view of the custom prevailent in the then State of Kutchchh the disputed document was not a mortgage transaction but it was an absolute sale. It was denied that the original mortgagor was in bad need of money and that he was forced to agree the said terms incorporated in the document of mortgage at Exh. 40. Alternatively it was contended that 11 shops were constructed after the execution of the mortgage transaction alongwith compound wall and therefore according to the case of the original defendants the plaintiff was bound to pay an interest thereon plus an amount of Rs. 35 515. 38 ps. for the construction carried out on the mortgaged property. In short alternatively the defendant had demanded an amount of Rs. 18 0 plus Rs. 35 515. 38 ps. which in all totalling to Rs. 53 518. 38 ps. from the plaintiffs. The other allegations in the plaint were controverted and traversed. ( 10 ) UPON the facts and the circumstances and the pleading raised by the respective parties in the plaint and the written statement the Trial Court had raised issues at Exh. 21. On appreciation of the facts and the circumstances of the case and the evidence on record the Trial Court passed decree for redemption on 19/09/1977. In short the Trial Court reached to the following conclusions: (1) That the original plaintiff was entitled to redemption of the mortgaged property. (2) That the original plaintiff proved that the ancestor had mortgaged the suit property with the mortgagee for 31 0 Royal Koris equivalent to Rs. 10 333. 34 ps. (3) That the original plaintiff proved that he was the legal heir of the original mortgagor. (4) That there was a clog on the redemption of mortgaged property and the suit was not barred by the law of limitation. (5) That the expenditure for improvements as claimed by the defendant in the written statement will be decided after accounts thereof at the time of passing final decree. ( 11 ) IT appears that the preliminary decree is ordered to be drawn in terms of Form No. 7-A of the First Schedule prescribed in the Appendices under the Code of Civil Procedure. ( 11 ) IT appears that the preliminary decree is ordered to be drawn in terms of Form No. 7-A of the First Schedule prescribed in the Appendices under the Code of Civil Procedure. ( 12 ) BEING aggrieved and dissatisfied by the impugned judgment and preliminary decree passed by the Court of the learned Civil Judge (Senior Division) Bhuj in Special Civil Suit No 74 of 1974 on 1 9/09/1977 the original defendants by filing the present First Appeal under the provisions of Section 96 of the Code of Civil Procedure has questioned the legality and validity thereof. In the course of the appeal change in the successor and change of the guards as noticed hereinabove have been brought on record. ( 13 ) LEARNED Advocate Mr. J. R. Nanavaty while appearing for the appellants has raised the following contentions :- (1) That the Trial Court has erred in holding that there was a clog on the equity of redemption. (2) That the Trial Court has erred in holding that the plaintiff has failed to prove that the original mortgagors financial condition was very weak and that he needed money. That there was no economic compulsion to accept unfavourable terms of mortgage. (3) That the mortgage transaction was executed in the year 1943 and at that time the Transfer of Property Act 1882 (T. P. Act) was not applied to Kutchchh region when the mortgage deed was executed and therefore the Court cannot grant relief under Section 60 of the T. P. Act for redemption even if the transaction is held to be oppressive and unconscinable. (4) The suit is time barred as it is filed 30 years after the execution of the mortgage transaction. ( 14 ) WHEREAS the learned Advocates Mr. Mankad and Vora while appearing on behalf of the respondents have countenanced the above submissions. Additionally the following contentions are also raised by them: (1) That the stipulation in the deed of mortgage have operated as a clog on the right of redemption. (2) That in absence of the stipulation with regard to the rate of interest in usufructuary mortgage interest cannot be awarded. (3) That it is alternatively contended that the doctrine of Dam Dupat is applicable and therefore the impugned decree of the Trial Court is required to be modified accordingly. (2) That in absence of the stipulation with regard to the rate of interest in usufructuary mortgage interest cannot be awarded. (3) That it is alternatively contended that the doctrine of Dam Dupat is applicable and therefore the impugned decree of the Trial Court is required to be modified accordingly. (4) That the cross-objections are not required to be filed in view of the specific powers conferred on the appellate Court under Order 41 Rule 31 of the Code of Civil Procedure. ( 15 ) BOTH the sides have relied on voluminous case law in support of their contentions to which reference will be made by this Court as and when required at an appropriate stage. ( 16 ) SINCE the contentions raised before this Court are interwoven and interconnected and both the sides have placed reliance on host of the case-law it would be appropriate first to examine legal aspect. ( 17 ) THE T. P. Act in Chapter 4 provides material provisions for the rights and liabilities of the mortgagors and mortgagees. A mortgage is the security for the debt Right of Redemption is provided under Section 60 of the T. P. Act. Section 60 of the T. P. Act is very material and therefore it is required to be reproduced. It reads as under :-60 Right of mortgagor to redeem at any time after the principal money has become due the mortgagor has a right on payment or tender at a proper time and place of the mortgage money to require the mortgagee (a) to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged properties which are in possession or power of the mortgagee (b) where the mortgagee is in possession of the morgaged property to deliver possession thereof to the mortgagor and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a Court. The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed the mortgagee shall be entitled to reasonable notice before payment or tender of such money. Redemption of portion of mortgaged property nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only on payment of a proportionate part of the amount remaining due on the mortgage except only where a mortgagee or if there are more mortgagees than one all such mortgagees has or have acquired in whole or in part the share of a mortgagor. ( 18 ) SECTION 60 of the T. P. Act has been amended by an Act XX of 1929. The word due in section has been substituted by the word payable. In order to make it clear that the mortgagor cannot redeem within the term of the mortgage. The mortgagors right of redemption after the date fixed for the payment is known in the English Law as Equity of Redemption. It becomes clear from the history on this point that the very term indicates that the right is the creation of the Courts of equity which while giving relief against or future allowed right to continue even after the default on due date. Therefore general use in India instead of right of redeem it may therefore be a mortgage in the English Law. The owner who has parted with some rights of ownership and the right of redemption is a right which he exercises by virtue of residuary ownership to resume what he had parted with. Section 60 of the T. P. Act confirms and affirms the right to redemption in all mortgages in India. In India this right of redemption is however a statutory and therefore a legal right. ( 19 ) THE underlying principle of Section 60 of the T. P. Act is that the right to redeem is an incident of subsisting mortgage and is inseparable from it so that the right is co-extensive with the mortgage itself. In India this right of redemption is however a statutory and therefore a legal right. ( 19 ) THE underlying principle of Section 60 of the T. P. Act is that the right to redeem is an incident of subsisting mortgage and is inseparable from it so that the right is co-extensive with the mortgage itself. Moreover this right subsists until it is appropriately and effectively extinguished and the extingusihment of the Right of Redemption can only happen either by the act of the parties concerned or by a proper decree of the competent court. Therefore so long as such extinguishment does not take place Right of Redemption is not exhausted. Therefore it can be seen from the catena of judicial pronouncements that such a right to redeem the property may then be established by another suit provided of course filed within the period of limitation prescribed by the Limitation Act even though the decree of redemption may have been obtained in earlier suit and might have been remained unexecuted or become barred by lapse of time. If this principle is accepted as correctly applicable to the redemption in India then the same follows as was stated by the Privy Council in the case of Raghunathsinh v. Hansaraj Kunwar AIR 1934 P. C. Ex. 4. Even in those places where the T. P. Act may not be in force as such but where its principle may be in force. In short Section B0 of the T. P. Act confers on the mortgagor as stated hereinbefore a right to redeem the mortgaged property. This remedy under Section 60 of the T. P. Act depends upon the existence of relationship of mortgagor and the mortgagee. ( 20 ) IT will also be appropriate to note at this stage that Section 60 of the T. P. Act is not prefaced by any such word as in absence of contract to the contrary. Therefore the right of redemption under this section is a statutory right which cannot be fettered or impeded by any condition. Thus the stipulations in the deed of mortgage cannot prevent the redemption. Therefore the right of redemption under this section is a statutory right which cannot be fettered or impeded by any condition. Thus the stipulations in the deed of mortgage cannot prevent the redemption. In other words right to is redeem under Section 60 of the T. P. is Act is not capable of being qualified by is any contract to the contrary and where this right is jeopardised imperiled or circumscribed suit to obtain relief from such peril should not be thrown out on the technical grounds. . ( 21 ) RIGHT to redeem the mortgage comes into existence when the mortgaged money becomes due and if that had happened prior to the date on which the T. P. Act came into force the law existing then regarding the right of redemption must apply or the principles of justice equity and good conscious or the principles analogous to Section 60 of the T. P. Act must apply. This proposition has beep very well explained and propounded by catena of judicial pronouncement. ( 22 ) THE doctrine of clog on Right of Redemption has been referred to by both the sides. In essence the very basis of the suit filed by the plaintiffs is based on this doctrine. Though the term prescribed in the deed of mortgage Exh. 40 for redemption is 99 years. The plaintiff pleaded that such a term coupled with a right to build or reconstruct from the foundation by the mortgage without any monetary limitation and the liability on the part of the mortgagor to pay over and above the mortgage money amounted to a clog on the Right of Redemption. This contention and the proposition advanced by the plaintiffs is accepted by the Trial Court. This being the first appeal both the sides are permitted to agitate on this proposition in extenso before this Court. Therefore the law relating to clog on the equity of redemption needs deeper probe and detailed analysis. ( 23 ) AS stated hereinbefore the underlying object of Section 60 of the T. P. Act is that the right to redeem an incident of subsisting mortgage and inseparable from it so that the right co-extensive with the mortgage itself. ( 24 ) THE courts have consistently considered any condition or stipulation which is harsh or hampers the right to redeem as a clog. The mortgage is intended as a-mere security. ( 24 ) THE courts have consistently considered any condition or stipulation which is harsh or hampers the right to redeem as a clog. The mortgage is intended as a-mere security. Therefore any condition or any term which imperils or impedes right of redemption cannot be recognised in a court of law. Not only that even though the mortgagor lost legal right to redeem the property he nevertheless had an equity to redeem on payment of mortgage money. The one of the fundamental grounds on which this is rested is that the debtor at the time of taking loan being distressed mortgage cannot be permitted to take advantage of his necessities and introduce stipulations hampering the redemption. This proposition or the recognition of the doctrine of clog is very old. It has long history. There is a purpose and policy behind it. In this connection it would therefore be appropriate to refer a few English Decisions. ( 25 ) IN Speergeon v. Collier, 1758 28 EL 605 observed as under:it puts borrower to much in power of the lender who being distressed at the time is too incapable to submit to any terms proposed on the part of the lender. ( 26 ) SIMILARLY in the case of Vernon v. Bethell (1702) 28 E. R. 838 a mortgage was made redeemable after 49 years. The mortgagee was given a right to rebuild and effect repairs without limit of expenses and to pay taxes and recover amount with high rate of interest at the time of redemption. It was held that the conditions made repayment practically impossible and amounted to a clog on redemption. It would be appropriate to refer the following observations of Lord Chancellor. He said This Court as a Court of conscience is very jealous of the persons taking securities for a loan and covering such securities into purchase and therefore I take it to be established rule that a mortgage can never provide at the time of making loan for any event or condition on which the equity of redemption shall be discharged and 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. ( 27 ) IT is explicit from the plain perusal of Section 60 of the T. P. Act that once a mortgage always a mortgage. In other words that an estate would not at one time be a mortgage and another time ceased to be so by one and the same deed. As a consequence of this principle it came to be held that clog on the equity of redemption is void unjust unreasonable and unenforceable. It means that any provisions in the deed of mortgage which stipulates or provides to deprive mortgagor of its right to redeem absolutely and at any time after the mortgage-money has become payable is void. This doctrine of clog which is evolved since the centuries in England has been adopted in this country even where the T. P. Act did not apply. Therefore Section 60 of the T. P. Act is also not prefaced by the words in absence of a contract to the contrary. It clearly means that the mortgagor cannot drag himself out of his Right of Redemption. As such any stipulation or contract which creates a clog on the equity of redemption ought to be regarded as opposed to the public policy also and therefore also it is void. ( 28 ) IT may not be possible to enumerate and high light all the stipulations which are operating as clog on the equity of redemption. However it could be seen from the decided cases and the discussions as aforesaid that any order with a particular condition term or stipulation may amount to a clog on redemption it is necessary that- (1) it must speak to prevent the mortgagor from redeeming absolutely or at any time after the money has become due; (2) it must be a part of the same transaction as the mortgage deed; (3) it must have been entered into by the mortgagee in his character of mortgagee. ( 29 ) IT is therefore not possible to lay down any hard and fast rule as to what should and what should not be regarded as a clog on the equity of redemption and that each case has to be judged in the context of its facts and circumstances. However the aforesaid three conditions must be present on the mental radar when the question of doctrine of clog on the equity of redemption is to be examined. However the aforesaid three conditions must be present on the mental radar when the question of doctrine of clog on the equity of redemption is to be examined. In short while deciding as to whether a particular stipulation in the mortgage deed is a clog on the equity of redemption or not the court has to address itself into the events as they have or have not happened but only to the possible or probable effect of such stipulations on the Right of Redemption. ( 30 ) THE law regarding redemption in India is analogous to one in England and the principles which have been enunciated by the Courts in England have been followed in this country. In Santly v. Wilde (1899) 2 Ch. 474 Honble Lord Linely has made the following observations which are very pertinent: the principle is this. A conveyance of land or an assignment of chattels as a security for the payment of debt or the discharge of some other obligation for which it is given. This is the idea of mortgage and the security is redeemable on the payment of or discharge of such debt or obligation any provision to the contrary notwithstanding that in my opinion is the law. Any provisions inserted to prevent the redemption on payment or performance of the duty or obligation for which security was given is what meant by a clog or fetter on the equity of redemption and is therefore void. It falls from this that once a mortgage always a mortgage. But I do not understand that this principle involves further proposition that the amount or nature of the further debt or obligation payment or performance of which is to be secured is a clog or fetter within the rule. ( 31 ) THE above observations were approved by Lord Halsbury in Noaker and Co. v. Rice, 1902 0 AC 24. It is therefore very clear from the aforesaid observations that a redemption is the heart of mortgage and it is inherent therein and the equity will not permit any device or contrivance to prevent or impede the right of redemption. The mortgagor has unfettered right at any time after the principal money has become due on payment or tender at a proper time and place of and the mortgage money to deliver to him. The mortgagor has unfettered right at any time after the principal money has become due on payment or tender at a proper time and place of and the mortgage money to deliver to him. Like the mortgagor mortgage deed and all documents relating to the mortgaged property which are in possession or power of the mortgage. ( 32 ) IN Mohammad Sherkhan v. Raja Sheth Swami Dayal AIR 1922 P. C. mortgage was for a period of five years with a condition that if the money was not paid the mortgagor may enter into possession for a period of 12 years and the mortgagor could not redeem during that period. It was held therein that such a condition operates as a hindrance in Right of Redemption and therefore it was held to be a clog on the Right of Redemption. ( 33 ) IN short any term or stipulation which restricts or obstructs right of redemption is nothing but a clog on redemption and therefore it should be held invalid. Now in the present case the term prescribed in the mortgage deed is 99 years coupled with a condition that the mortgagee has a right to rebuild or reconstruct from the foundation even after if required demolition without any monetary ceiling and the mortgagor has a liability to pay the full amount of expenses incurred by the mortgagee towards the construction on the mortgaged property over and above the mortgage money. These two conditions conjointly are held to be a clog on the right of redemption and therefore invalid. At this juncture it may be mentioned thai a mere long term for redemption ipso facto may not constitute a clog on redemption. It is a settled proposition of law that mere term even in usufructuary mortgage document postponing the Right of Redemption for a given number of years may be after 40 50 60 or 80 years does not ipse dixit tantamount to a clog on Right of Redemption. It is a settled proposition of law that mere term even in usufructuary mortgage document postponing the Right of Redemption for a given number of years may be after 40 50 60 or 80 years does not ipse dixit tantamount to a clog on Right of Redemption. But if such stipulation of non-redemption for number of years is coupled with any other condition which either authorises the mortgagee to continue in possession or to convert the property mortgaged so as to make practically impossible for the original mortgagor to redeem or any such condition or term which makes a Right of Redemption practically unenforceable or impossible then such a long period coupled with such condition is nothing but a clog on the Right or Redemption. Thus if such condition of long duration of non-redemption or postponement of redemption for a number of years is coupled with any other condition that authorises the mortgagee in possession in the meantime to so convert the property mortgaged as to make it practically impossible for the original mortgagor to redeem his property then the terms prescribe as to long period of non-redemption while reading in the context of other such terms and viewed in the document of attendant circumstances which led to rise of such mortgage transaction reflected by the concerned document which included such terms would undoubtedly be a clog on the Right of Redemption. Therefore though the postponment of redemption for a long spell in a mortgage is not necessarily per se a clog on redemption if coupled with such stipulations or conditions which lead the mortgagor to the point of impossiblility to redeem the property then obviously it would be a clog on redemption and nothing but a clog. ( 34 ) IT would be now appropriate to refer at this stage the host of case law refer red and relied upon. ( 35 ) IN Second Appeal No. 978 of 1961 in the case of Heirs of decd. Shah Devsey v. Shah Shamji J. Jain decided on 5-2-1961 (Coram: B. J. Thakore J.) reversing the decisions of the Courts below passed a decree for redemption relying upon the decision of the Bombay High Court reported in AIR 1953 408 and also of the Supreme Court in the case of Ganga Dhar v. Shankar Lal and Others reported in AIR 1958 SC 770 . It was also a case from the Kutchchh region. Almost similar facts were there. Mortgage deed executed in the year 1931 for a period of 99 years for 4800 Koris in respect of the mortgaged property. There was also a stipulation that the mortgagee was entitled to erect a new construction of any description after demolishing existing mortgaged house at the costs of the mortgagor. The suit for redemption was filed which was dismissed. The mortgagor also lost in the First Appeal. In the Second Appeal before this Court this Court holding the aforesaid two conditions as a clog on redemption passed a decree for redemption while allowing the Second Appeal. ( 36 ) THEREAFTER in similar situation this Court in the case of Heirs of Kandoi Manilal in Second Appeal No. 196 of 1973 which was decided on 8/10/1975 [coram: D. A. Desai J. ] held that such terms are a clog on equity of redemption and therefore are invalid. In that case the mortgage deed was executed on 29-4-1940 for 4300 Koris for a period of 99 years. In that case also there was a term that the expenses for total reconstruction if any after demolition will be payable by the mortgagor on redemption. In that case the contention was also raised that the T. P. Act was not applicable. However this Court held that such terms are amounting to a clog on equity of redemption and therefore they are invalid. ( 37 ) LATER on in Smt. Pushpavati v. Jani Ratanshankar in Second Appeal No. 226 of 1973 also the mortgage transaction in Kutchchh was executed on 18-6-1938. It was for 5700 Koris for a period of 99 years. There was a similar term for payment of the expenses for reconstruction after demolition by the mortgagor on redemption. This Court on 15-9-1976 [coram P. D. Desai J. ] held that these terms were oppressive and were operating as a clog on redemption. The suit was dismissed as premature by the Trial Court. The District Court allowed the appeal and passed a decree in favour of the mortgagor. The decree for redemption passed by the District Court was confirmed by this Court in the said Second Appeal and this Court also relied on the decision rendered in the case of Maganlal v. Bhalchandra reported in 15 GLR 193. The District Court allowed the appeal and passed a decree in favour of the mortgagor. The decree for redemption passed by the District Court was confirmed by this Court in the said Second Appeal and this Court also relied on the decision rendered in the case of Maganlal v. Bhalchandra reported in 15 GLR 193. Again the Division Bench of this Court in Second Appeal No. 607 of 1973 decided on 9-7-1976 following the decision of this Court in Second Appeal No. 978 of 1961. In that case also the mortgage was in Kutchchh area executed on 1-7-1938 for 2500 Koris for a period of 99 years. The mortgagor filed suit for redemption and the suit was decreed and it was also confirmed in the First Appeal. The Division Bench of this Court in that case also relied upon the decision of the Bombay High Court in the case of Vadilal Chhaganlal Soni and Ors v. Gokaldas Mansukh and Ors. reported in 1953 0 Bombay 408 It was held that a long period of postponement of redemption coupled with a liability to pay the costs of reconstruction after demolition of the mortgaged property would obviously amount to a clog on Right of Redemption. ( 38 ) THE Division Bench had again an occasion to decide similar case on 4/11/1976 in the First Appeal No. 529 of 1973. In that matter mortgage transaction was executed on 17-4-1946 for 54 500 Koris for a period of 99 years by the mortgagor in favour of the mortgagee. The suit was filed before the period of 99 years. The Trial Court dismissed the suit holding that it was premature. The mortgagor filed the First Appeal before this Court and in that First Appeal this Court held that the postponement of redemption for a period of 99 years together with liability on the part of the mortgagor to pay costs of reconstruction made by the mortgagee during the period of mortgage would operate as a clog on redemption and therefore such terms are invalid. Reversing the decision of the Trial Court decree was passed for redemption. It was also a matter from Kutchchh District. ( 39 ) SUBSEQUENTLY the Division Bench of this Court had again an occasion to deal with similar matter in Second Appeal No. 312 of 1975 in the case of Ratanbai Ramas v. Shambhudas Kheraj. Reversing the decision of the Trial Court decree was passed for redemption. It was also a matter from Kutchchh District. ( 39 ) SUBSEQUENTLY the Division Bench of this Court had again an occasion to deal with similar matter in Second Appeal No. 312 of 1975 in the case of Ratanbai Ramas v. Shambhudas Kheraj. It was held that the mortgagor is entitled to a decree for redemption. In fact the mortgage deed was executed for a period of 60 years for 188 Koris. There was a right on the part of the mortgagee to reconstruct on the mortgaged property and the mortgagor was liable to make payment of redemption. The suit filed for redemption by the mortgagor came to be dismissed by the Trial Court. Thereafter the First. Appeal was filed by the mortgagor which was allowed and decree for redemption was passed. It was interpreted by the First Appellate Court that such conditions in the mortgage deed are invalid as they are clogging the right of redemption. Against that Second Appeal was preferred by the mortgagee which was dismissed by the Division Bench of this Court holding that there was a clog on equity of redemption and the decree for redemption was rightly passed by the Lower Appellate Court. ( 40 ) AT the time of hearing reliance was also placed on the decision of this Court in the case of Khatau Nathu Sumra v. Rajgor Mulji Nanji AIR 1979 Guj 171 . The facts of the said case were that the mortgage transaction had been entered in the year 1942 for a period of 99 years for 2000 Koris and the postponement of redemption coupled with the liability on the part of the mortgagee to pay the entire costs and expenses for the reconstruction or repairs amounted to a clog on the right of equity of redemption and therefore the decree passed by the Trial Court for redemption was restored. The decree passed by the Trial Court for redemption was reversed by the District Court in the First Appeal and in the Second Appeal this Court held that such conditions in the mortgage deed are oppressive harsh and invalid. Therefore decree passed by the Trial Court for redemption came to be restored. That was also a matter arising from the Kutchchh area. . Therefore decree passed by the Trial Court for redemption came to be restored. That was also a matter arising from the Kutchchh area. . ( 41 ) AS can be seen from the aforesaid seven consistent and direct decisions of this Court right from year 1969 which are also incidently arising from the Kutchchh area like the case on hand that the long term for redemption with a right to reconstruct by the mortgagee and coupled with the liability on the part of the mortgagor to repay at the time of redemption continues a clog on the equity of redemption. It is therefore explicit that. this Court consistently has been interpreting the similar terms in different cases as constituting a clog on the right of redemption and therefore invalid. ( 42 ) IT is true that under Section 60 of the T. P. Act any time after the principal amount has become due the mortgagor has a right to make payment or to tender all the mortgaged money requiring the mortgagee to recovery the mortgaged property and this right is known as a right to redeem. It is very explict from the plain perusal of Section 60 of the T. P. Act itself that it is unqualified in its term and contains no saving provisions or any subject to any contract to the contrary. Therefore right to redeem can be exercised only after the principal money has become due. Thus ordinarily right of redemption would arise only on the expiry of the term or stipulation made in the document. However the question which frequently arising before the Courts is whether the postponement of the Right of Redemption for a long period in substance and effect prevents the mortgagor from getting his property redeemed and when the Courts have power to relieve the party from such unjust and unreasonable stipulations so as to enable him to redeem his mortgaged property before the expiry of the time stipulated in the deed itself. In the aforesaid decisions of this Court it has been consistently held that if the long term or the stipulation or the conditions incorporated in the deed coupled with liability to repay full expenses or payment of interest at the end of the long term or any other such condition which is found harsh and oppressive it is always open for the mortgagor to move the Court for redemption of his property even before the expiry of such period and the Court is competent to relieve him from such term holding it invalid and granting any appropriate relief for redemption of the mortgaged property. ( 43 ) AS can be seen from the earlier discussions prima facie presumption is that a person when borrows money is in a distressed position. Ordinarily no person would gain by entering into such a mortgage transaction the terms of which are highly unfavourable and unjust to him. If the lender taking advantage of his position and necessities gets certain unfavourable terms incorporated which are adverse to the mortgagor he cannot be allowed to take advantage of such a stipulation as it is against the public policy. Such a view is also very much reinforced by the observations of the Apex Court made in the case of Pomal v. Vrajlal reported in A. I. R. 1939 S. C. 436 It is clearly held in para 18 of the said judgment that the lending of money on mortgage or otherwise was looked upon with suspicion and the Court was on the alert to discover the want of conscience in the terms imposed by the lenders. ( 44 ) IN Pomal v. Vrajlals case (supra) the Supreme Court has also clearly held that the doctrine clog on equity of redemption is a rule of justice equity and good conscience. It must be adopted in each case. It is also observed that we must take note of the time condition price the term bargain and other obligations of the parties. After considering the facts and circumstances emerging before them in that case Their Lordships of the Supreme Court found that there was a clog on the equity of redemption. In that case there was a long period of 99 years for redemption. There was also a provision for interest of 1 1/2% per annum payable on the principal amount at the end of the long term. In that case there was a long period of 99 years for redemption. There was also a provision for interest of 1 1/2% per annum payable on the principal amount at the end of the long term. Moreover there was a clause regarding repayment etc. and the mortgagors financial condition suggested that there was a clog on the equity of redemption. No doubt it was found that the long term by itself as a period for redemption is not necessarily a clog on the equity of redemption but in the change of circumstances increase in the price of the real estate population explosion and the need for appetite the term taken with other relevant factors would constitute the presumption that it is a clog on the equity of redemption. If that is the position then keeping in view the financial and economic conditions of the mortgagor the clause obliging for payment of interest even in case of usufructuary mortgage not periodically but at the time of ultimate redemption amounted to a clog on redemption. The term permitting construction and reconstruction of the building in this inflationary age would also undoubtedly amount to a clog on equity of redemption. In Division Bench decision of the Bombay High Court in Vadilal C. Soni v. Gokaldas Mansukh 1953 0 Bombay 408 there was a long period for redemption coupled with a condition that the mortgagee had full right and authority to build any structure on the plot mortgaged after spending any amount he liked. Thus in that case an agreement between the mortgagor and the mortgagee was to the effect that the mortgagee was given full authority to build any structure on a plot mortgaged with a right to recover and it was a mortgage for 99 years. These two conditions of the mortgage deed were found unreasonable and oppressive and were held to be a clog on the equity of redemption. ( 45 ) IN this case incidentally the question that the transaction was entered into between the parties prior to the date of applicability of the provisions of the T. P. Act and therefore the property cannot be permitted to be redeemed is also raised. ( 45 ) IN this case incidentally the question that the transaction was entered into between the parties prior to the date of applicability of the provisions of the T. P. Act and therefore the property cannot be permitted to be redeemed is also raised. In above case before the Bombay High Court it was also held that the terms of Section 60 of the T. P. Act themselves indicates that the rule of English Law as to clog should be applied in favour of the mortgagor and there is nothing inconsistent in Section 60 of the T. P. Act. It was therefore held that it was not possible to accept the contention that if the mortgagor permits the mortgagee to adopt the device which would impede the mortgagors right of redemption he is precluded from appealing to the doctrine of a clog on redemption. It was therefore held that the doctrine of clog on equity of redemption is applied as a rule of justice equity and good conscience and as such it is consistent with the provisions of Section 60 of the T. P. Act itself. ( 46 ) IN the decision of V. C. Soni (supra) the Division Bench of the Bombay High Court has held that for dealing with the question as to whether the long period or term for redemption is a clog on equity of redemption it would be necessary to consider all the circumstances attending the execution of the mortgage deed the amount advanced under the mortgage nature of the security offered by the mortgagor the circumstances in which the mortgagor was compelled to secure the amount the terms and conditions on which the amount was in fact advanced and other alternatives to which the mortgagor could have taken recourse for obtaining some advances would have to be considered before it is held that any particular term of redemption amounts to clog because it is unreasonably long. ( 47 ) IN the case of Pomal v. Vrajlal (supra) the Supreme Court has elaborately and extensively dealt with as to when the long period amounts to a clog on the right of redemption. Whether the long term for mortgages in the present inflationary market in the fast moving conditions are clogs on the equity of redemption and as such mortgages are redeemable at the instance of the mortgagor before the stipulated period? Whether the long term for mortgages in the present inflationary market in the fast moving conditions are clogs on the equity of redemption and as such mortgages are redeemable at the instance of the mortgagor before the stipulated period? In the following manner it says: 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 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 the circumstances of the parties the time the situation the clauses for redemption either for payment of interest or any other sum and the obligations of the mortgagee to construct or repair or to manage the same in a matter of prudent management; all these factors must be correlated to each other and viewed in a comprehensive conspectus in the background of the facts and circumstances of each case to determine whether these are clogs on equity of redemption. These principles have been recognised in Gangadhar v. Shankar Lal. It has also to be borne in mind that long term for redemption in respect of immovable properties was prevailent at a time when things and society were more or less in a static condition. We now 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 is charge of such debt or obligation. The doctrine clogs 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 the price spiral the term bargain and other obligations in the background of the financial conditions of the parties. The doctrine clogs 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 the price spiral the term bargain and other obligations in the background of the financial conditions of the parties. Whether in the facts and circumstances of the case the mortgage transaction amounts to a clog on the equity of redemption is a mixed question of law and facts. The 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. It is a right of the mortgagor by reason of the very nature of the mortgage to get back the subject of the mortgage and to hold and enjoy it 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 unequitable. The law does not countenance it. Bearing the aforesaid background in mind each case has to be judged and decided in its own perspective. Long term for redemption by itself is not a clog on equity of redemption. ( 48 ) LEARNED Advocate Mr. Nanavati has contended that unless and until the mortgagor proves that he was oppressed and he was imposed unreasonable terms and conditions on account of his poverty or weak financial conditions the doctrine of clog on equity of redemption could not be invoked. Although this submission at the first instance appears to be ingenious it is factually fallacious and legally not acceptable in the present case. ( 49 ) FIRST of all it may be pointed out that it is specifically pleaded in the plaint that on account of the poor condition unreasonable terms and conditions were imposed in the mortgage deed Exh. 40 In plaint Exh. ( 49 ) FIRST of all it may be pointed out that it is specifically pleaded in the plaint that on account of the poor condition unreasonable terms and conditions were imposed in the mortgage deed Exh. 40 In plaint Exh. 1 para 2 it is clearly contended that at the time of entering into a mortgage transaction the mortgagor was in need of money and therefore taking undue advantage of his position and necessity the original mortgagee-defendant got the mortgage-deed Exh. 40 executed containing long term of 99 years for redemption and the stipulation for reconstruction after demolition of the mortgaged property for his convenience without any monetary limit for construction by the morgagee and with a liability on the part of the mortgagor to bear the entire expenditure at the time of redemption of the mortgaged property. Thus there is a specific plea to that effect in the plaint Exh. 1. This plea which is propounded in the plaint has been very much supported by the plaintiff Govindgarji at Exh. 39. In para 2 he has specifically testified that the mortgagee had taken undue advantage of the situation and the necessity to raise the funds by the original mortgagor. It appears that there is no specific denial on this part of the evidence in the cross-examination. ( 50 ) HOWEVER learned Advocate Mr. Nanavaty contended that the plaintiff has not produced the accounts of the relevant period to substantiate his say and plea that the original mortgator was oppressed or was in financial need. It is true that the accounts are not produced. However there is sufficient clarification on record as to why the account books are not produced. Exh. 37 is the pursis filed by the plaintiff wherein it is clearly mentioned that on account of long lapse of period the account books are not available as they are destroyed. Therefore that contention is also of no avail to Mr. Nanavaty. He has further contended that as per the evidence on record the Math to which the mortgagor was manager means Mathadipati was dealing with the business of export-import and the mortgagor was also a member of Chamber of Commerce. It is also contended that the mortgagor had properties. Needless to say that mere dealing with the business or saying that the business was running even may be of export-import or any other business. It is also contended that the mortgagor had properties. Needless to say that mere dealing with the business or saying that the business was running even may be of export-import or any other business. is not sufficient to jump to the conclusion that the financial position of the Math or the Mathadhipati was sound. There is nothing on record to indicate even remotely that either the mortgagor being Mathadhipati who was managing the math had sufficient liquid funds whereby he or the Math did not require any funds and the debt was created for the sake of creating the debt only. On the contrary there is clear evidence that the position of the Math and the Mathadhipati was financially not viable and it was weak. There was no reason for the mortgagor to raise the fund of 31 0 Royal Koris in the year 1943 had he been doing profitable business or running a sound export-import work. Factually it is found without any doubt from the record that the financial position of the mortgagor was weak and he was requiring funds and therefore he entered into a mortgage transaction with the mortgagee. The finding of fact that the mortgagee was in dominating position and the mortgagor was in weak financial condition has remained unassailable and therefore that contention of Mr. Nanavaty for the defendant is sans substance. ( 51 ) ASSUMING for the sake of argument that there is no evidence to show weak financial position then alternatively also it cannot be contended that in absence of the poor financial position in such a situation a plea of clog on the equity of redemption cannot be raised. Section 60 of the T. P. Act itself per se makes it amply clear that it is not prefixed or prefaced by any word subject to the contract to the contrary. So no contract which is affecting the right of redemption or which nullifies the transaction of mortgage can be recognised even if the financial position of the mortgagor is held to be not poor. Otherwise the doctrine once a mortgage always a mortgage would also fail. While determining the plea clog on equity of redemption various factors and aspects are required to be borne in mind and one of them is the financial condition of the party. Otherwise the doctrine once a mortgage always a mortgage would also fail. While determining the plea clog on equity of redemption various factors and aspects are required to be borne in mind and one of them is the financial condition of the party. Of course it is not the only factor which contributes in determining the nature of clogging of the equity of redemption. The poverty of the party or the financial weak position of the mortgagor will supplement the plea or doctrine of clog if raised by the mortgagor but would not supplement it. ( 52 ) SUPPOSE in a given case the financial position is not weak alongwith the long term of postponing the redemption another condition is imposed that at the end of the period the mortgagee will become permanent tenant or that at the end of the period the mortgagee will become purchaser could it not be said that these conditions are clog because of the fact that the financial position of the mortgagor is not shown to be weak the answer would be obviously in the negative. Therefore unlike many other provisions Section 60 of the T. P. Act is not prefaced with subject to the contract to the contrary even if the same contract is made in the mortgage transaction which is dynamiting the very underlying purpose and the spirit of the mortgage transaction irrespective of the financial position of the mortgagor plea of clog on equity of redemption can successfully be advanced and agitated. Therefore on second count also the contention of Mr. Nanavaty cannot be sustained. ( 53 ) MOREOVER as observed hereinabove apart from the positive evidence led by the plaintiff with regard to the financial position of the mortgagor at the relevant point of time presumption is that he was financially in a distressed position. In the case of Pomal Kanji v. Vrajlal Karsanas (supra) the Apex Court has held that in ordinary cases only where there was a 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 conscience in the terms imposed by leners. Similar observations made in para 35 are also very pertinent. The lending of money on mortgage or otherwise was looked on with suspicion and the Court was on the alert to discover want of conscience in the terms imposed by leners. Similar observations made in para 35 are also very pertinent. It was contended in that case that on the evidence and the facts and having regard to the position of the parties 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 become Civil Judge would not affect the position because what was relevant was the financial condition at the time of the transaction. It is further observed that: 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 nobody would like to mortgage the only house which is the sole abode on the earth. ( 54 ) THE aforesaid observations are high lighted with a view to show that ordinarily person who is seeking debt is presumed to be in need of money or at the best it can be said that he was not a free man at the time of entering into such transaction. Even if a person is not weak financially and such a contract is one not as freemen then such condition would operate as clog. Regardless of the financial position any term or device in the deed which impeaches the rights of redemption is invalid. It was also contended on behalf of the appellant by the learned Advocate Mr. Nanavaty that the T. P. Act was applied to the Kutchchh region after 31/07/1949 and the transaction in question was of 1943. Therefore the doctrine of clog on equity of redemption cannot be invoked. It is true that the T. P. Act was not in force in the erstwhile State of Kutchchh in the year 1943. It came to be applied by the Notification of the Government of India on 31/07/1949 issued under the Kutchchh Application of Laws Order 1949 read with Merger of States [laws] 1949 This aspect is not in controversy. It is true that the T. P. Act was not in force in the erstwhile State of Kutchchh in the year 1943. It came to be applied by the Notification of the Government of India on 31/07/1949 issued under the Kutchchh Application of Laws Order 1949 read with Merger of States [laws] 1949 This aspect is not in controversy. Thus it is an admitted fact that when the disputed transaction of mortgage was executed in the Kutchchh Region the T. P. Act was not applicable in the erstwhile State of Kutchchh. However this submission of Mr. Nanavaty does not take him any further. The very nature and the character of the transaction annures benefit of doctrine of clog on equity of redemption to the mortgagor and the same is founded upon the equity of redemption is sponteneously inherent in the transaction. Apart from that analogus principles of the T. P. Act and the doctrine of equity good conscience and justice can successfully be invoked even for the transactions where the T. P. Act do not apply. ( 55 ) AS to the provinces where the Act has not been applied at the relevant point of time it was contended in one case before the Privy Council that the principles of the Act should be followed and this contention was upheld by the Privy Council. In the case of Khanbahadur Meherbankhan v. Makana and Others AIR 1930 PC 142 the Privy Council were dealing with the another stipulation which was construed as amounting to clog on equity of redemption with which they were concerned had conferred upon the mortgagee which was treated as clog on equity of redemption the mortgage deed has stipulated that the mortgagee will be entitled to remain in possession for 99 years and that at the end of the period after the mortgagor paid up the amount. In case of Vaghela Raj Sanji v. Mulsuddin 14 Ind. App. 1989 at page 96 Lord Hob House on the question as to clog on redemption observed with a direction to decide by equity and good conscience was generally interpreted meaning the Rules of ownership law if at all applicable to the Indian Society and the circumstances. The term of Section 60 of the T. P. Act said that the indication rules of ownership law relating to mortgagors right to redeem are applicable in Indian Society and the circumstances. The term of Section 60 of the T. P. Act said that the indication rules of ownership law relating to mortgagors right to redeem are applicable in Indian Society and the circumstances. Thus there was no indication to the contrary. ( 56 ) THEREAFTER the Supreme Court in the case of Murarilal v. Devcharan, 1965 0 SC 225 held that the mortgage executed in the former Alvar State where the T. P. Act as not in force. However the principles of justice equity on good conscience are applicable and were applied and it was held that the stipulation in the mortgage deed that if the mortgage deed was not redeemed within 15 years mortgagors title would be extinguished being clog could not be enforced so as to bar the suit for redemption by the mortgagor. ( 57 ) THUS it is very clear that the transaction of mortgage executed in an area where the T. P. Act was not applied at the relevant time does not come in the way of declaring a clog on equity of redemption if the circumstances so demand. Therefore the Privy Council in the case of Maherbankhans case (supra) and the Supreme Court in the case of Murarilal clearly held that even on the basis of doctrine of equity good conscience and justice relief could be afforded to the mortgagor in respect of the suit for redemption of mortgaged property and the mortgage which was executed in an area where the TP Act was not applied. Therefore the contention of Mr. Nanavaty that the suit is not maintainable as the TP Act was not applied in Kutchchh region at the relevant point of time and therefore Section 60 of the TP Act cannot be made applicable is absolutely meritless and requires to be rejected. ( 58 ) NEXT it leads into the field is the question of moulding the relief. The Trial Court has granted preliminary decree probably in terms of prescribed Form 7a in Appendices provided under the C. P. C. Annexed to the Code in verbatim and without proper application of mind. ( 59 ) IN case of redemption of mortgage like one on hand if the plaintiff succeeds preliminary decree is required to be drawn at the first instance. ( 59 ) IN case of redemption of mortgage like one on hand if the plaintiff succeeds preliminary decree is required to be drawn at the first instance. The provisions of Order 34 Rule 7 of the CPC deal with the preliminary decree in a suit relating to mortgages of immovable property. The focus as such should be on Rule 7 of Order 34. The provisions of Order 34 Rule 7 of the CPC deal with the preliminary decree in a suit relating to mortgages of immovable property. The focus as such should be on Rule 7 of Order 34. It would be necessary at this stage to have a close look at the provisions of Order 34 Rule 7 of the CP Code which reads as under:7 (1) In a suit for redemption if the plaintiff succeeds the Court shall pass a preliminary decree (a) ordering that an account be taken of what was due to the defendant at the date of such decree for (i) principal and interest on the mortgage; (ii) the costs of suit if any awarded to him; and (iii) other costs charges and expenses properly incurred by him upto that date in respect of his mortgage-security together with interest thereon; or (b) declaring the amount so due at that date; and (c) directing (i) that if the plaintiff pays into court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the court confirms and countersigns the account taken under Clause (b) as the case may be and thereafter pays such amount as may be adjudged due in respect of subsequent costs charges and expenses as provided in Rule 10 together with subsequent interest on such sums respectively as provided in Rule 11 the defendant shall deliver up to the plaintiff or to such person as the plaintiff appoints all documents in his possession or power relating to the mortgaged property 1q the plaintiff at his cost free from the mortgage and from all incumbrances created by the defendant or any person claiming under him or where the defendant claims by derived title by those under whom he claims and shall also if necessary put the plaintiff in possession of the property; and (ii) that if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed or the plaintiff fails to pay within such time as the court may fix the amount adjudged due in respect of subsequent cause charges expenses and interest. the defendant shall be entitled to apply for a final decree- (a) in the case of a mortgage other than a usufructuary mortgage a mortgage by conditional sale or an anomalous mortgage the terms of which provides for foreclosure only and not for sale that the mortgage property be sold; or (b) in the case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid that the plaintiff be debarred from all rights to redeem the property. (2) The Court may on good cause shown and upon terms to be fixed by the court from time to time at any time before passing of a final decree for foreclosure or sale or as the case may be extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent cause charges expenses and interest. It may also be noted that the relevant provisions for the payment of interest in case of decree for redemption of mortgage is made in Rule 11 of Order 34 The provisions of Order 34 Rule 11 are material for the purpose of determining the controversy relating to interest and therefore they are required to be referred to. It may also be noted that the relevant provisions for the payment of interest in case of decree for redemption of mortgage is made in Rule 11 of Order 34 The provisions of Order 34 Rule 11 are material for the purpose of determining the controversy relating to interest and therefore they are required to be referred to. They read as under: 11 In any decree passed in a suit for foreclosure sale or redemption where interest is legally recoverable the Court may order payment of interest to the mortgagee as follows namely (a) interest up to the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage- (i) on the principal amount found or declared due on the mortgage at the rate payable on the principal or where no such rate as the Court deems reasonable (ii) [omitted by Amendment Act 1956 and (iii) on the amount adjudged due to the mortgagee for costs charges and expenses properly incurred by the mortgagee in respect of the mortgage security upto the date of the preliminary decree and added to the mortgage money - at the rate agreed between the parties or failing such rate at such rate not exceeding six per cent per annum as the court deems reasonable; and (b) subsequent interest upto the date of realisation or actual payment on the aggregate of the principal sums specified in Clause (a) as calculated in accordance with that clause at such rate as the Court deems reasonable. Before determining the controversy with regard to the interest granted by the Trial Court in the preliminary decree learned Advocate Mr. Nanavaty has vehemently contended that the respondents are debarred from raising any dispute pertaining to the mode and manner of preliminary decree passed by the Trial Court since they have not filed any cross objections in this appeal. He has invited attention of this Court to the provisions of Order 41 Rule 22 of the CP Code. According to his contention the respondents should have filed cross objections against that part of the decree which is against them in view of the provisions of Order 41 Rule 22 of the CPC. He has invited attention of this Court to the provisions of Order 41 Rule 22 of the CP Code. According to his contention the respondents should have filed cross objections against that part of the decree which is against them in view of the provisions of Order 41 Rule 22 of the CPC. Since this is very important question it has to be adjudicated upon first before the question of interest raise on behalf of the respondents is determined. ( 60 ) THOUGH the contention of the learned Advocate Mr. Nanavaty seems to be subtle but not sound and sustainable one in the light of the facts and circumstances of the case and the relevant provisions of the Code. The submission of Mr. Nanavaty ignores the important provisions of Order 41 Rule 33 of the Code. Rule 33 of Order 41 prescribes the powers of the Court of Appeal. It would be necessary at this stage to refer to the said provisions which read as under:33 The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection [and may where there have been decrees in cross suits or where two or more decrees are passed in one suit be exercised in respect of all or any of the decrees although an appeal may not have been filed against such decree]: provided that the Appellate Court shall not make any order under Section 35a in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. It has been contended on behalf of the respondents that without filing the cross objections under Order 41 Rule 22 the respondents are entitled to raise the dispute with regard to the interest relying on the provisions of Order 41 Rule 33 of the CPC. After having examined the factual and legal aspects this Court is of the clear opinion that the submission of Mr. After having examined the factual and legal aspects this Court is of the clear opinion that the submission of Mr. Nanavati learned Advocate for the appellant is sans substance and is required to be rejected. . ( 61 ) IN the present context reliance is placed on the host of the case laws which may be referred. First of all learned Advocates for the respondents has placed reliance on the decision of Koksing v. Smt. Devubai reported in AIR 1976 S. C. 634 In this case it is held that if the Appellate Court is of the view that in a decree which ought to have been passed by the Court below was in fact not passed by the Court below it may pass or make such further or other order as the justice of the case may require. Thus under Order 41 Rule 33 the High Court is competent to pass a decree for the enforcement of a charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree. ( 62 ) THE Supreme Court also relied in that case on the earlier decision of the Supreme Court in the case of Gyani Ram v. Ramji Lal AIR 1969 SC 1144 . ( 63 ) THE Advocates for the respondents have also relied on the Division Bench decision of this Court in the case of Oriental Fire and General Insurance Co. Lt. v. Amarsang Pratapsang and Ors. 34 GLR 270. Speaking for the Division Bench J. N. Bhatt J. [i was a party] has held that unfortunately in case where the claimant is awarded an amount of Rs. 1 0 0 interest is awarded at the rate of 696 p. a. from the date of the application till the realisation the original claimants had not filed the cross objections. The question which was posed before the Division Bench was as to whether the rate of interest could be enhanced in favour of the original claimant-respondent in absence of the cross-objections relying on the provisions of Order 41 Rule 33 CPC. The question which was posed before the Division Bench was as to whether the rate of interest could be enhanced in favour of the original claimant-respondent in absence of the cross-objections relying on the provisions of Order 41 Rule 33 CPC. Considering the underlying spirit and ambit and the object and scope of Order 41 Rule 33 our Division Bench reached the conclusion that the original claimants could be awarded higher rate of interest even in absence of the cross-objections so as to advance the cause of justice and holding that while exercising the powers of the Appellate Court under Order 41 Rule 33 ( 64 ) IT would be appropriate to quote the relevant observations made in the said judgment in para 17 which reads as under:should the Courts be silent spectators and feel helpless and impotent by not redressing injustice and by tolerating such grave unjustice simply because due to the human values for compensation which could be valid and imagined by the Advocate drafting the petition were too low or the appellants inability to pay the court fees which may be a more tangible ground for putting the reduced claim. Inadequate claim has been made at both levels of the original court and the appeal. . . . ( 65 ) IT was also held in the said Division Bench decision that the underlying purport and design of Order 41 Rule 33 would clearly go to show that the Parliament is enacting such provisions with a view that the Court could rise to the occasion and render substantial justice between the parties even in absence of cross-objections or appeal. Thus the framers of the Code who had hardly any concept of social justice then in that period of 1908 had enacted under Order 41 Rule 33 of the CPC that even if the appellant may not have made a perfect claim the Court should not become silent spectator and remain impotent to give appropriate relief to one who rightly deserves the petentiality. Therefore in absence of the cross-objections by the party this Court can invoke the provisions of Order 41 Rule 33 even if required suo motu and enhance the compensation or rate of interest. Therefore in absence of the cross-objections by the party this Court can invoke the provisions of Order 41 Rule 33 even if required suo motu and enhance the compensation or rate of interest. ( 66 ) IN the result the contention that in absence of the cross-objections the respondents-original plaintiffs are not entitled to contend for modification or enhancement or grant of relief is found farthest from the truth and has to be rejected and accordingly therefore it is rejected. ( 67 ) AGAIN before we proceed to the merits of some of the terms and tenures of the preliminary decree drawn by the Trial Court it would be necessary to recall that we are dealing with a case of usufructuary mortgage. Usufructuary mortgage is defined in Section 58d of the TP Act. By very nature of the transaction it indicates that the exclusive possession is parted and handed over to the mortgagee who is enjoying usufructs. The question therefore which has come to the surface is as to whether a person who is enjoying exclusive possession of the mortgage property with a right to enjoy rental or any other income arising out of the said property and who is entitled to claim the entire cost of reconstruction put up on the land under mortgage from the mortgagor could claim interest from the date of the mortgage transaction till the date of delivery ? If the answer to this question is in positive then it would not be unreal illegal and illogical but absurd. The very term indicates that the mortgagor has parted with the entire possession to the mortgagee for his benefit and convenience. In the present case two following factual propositions are no longer in controversy. (1) That the mortgage in question is usufructuary mortgage and the redemption is postponed by one of the term for a period of 99 years. (2) The mortgagee is entitled to rebuild or reconstruct on the property under the mortgage after demolition as per his choice without any monetary ceiling and the costs whereof is to be recovered from the mortgagor at the time of redemption. (2) The mortgagee is entitled to rebuild or reconstruct on the property under the mortgage after demolition as per his choice without any monetary ceiling and the costs whereof is to be recovered from the mortgagor at the time of redemption. ( 68 ) IT is not in dispute that the mortgagee is entitled to induct the tenants during the course of mortgage and he is entitled to the rental income that may be derived from the tenants inducted by him that means he is enjoying the property exclusively. He is spending money at the costs of the mortgagor for which he has to recover from the mortgagor and he is inducting the tenants and he is collecting rent from the tenants and even then the learned Trial Judge awarded interest at the rate of 6% to 9% at different occasions for different categories. If the decree as it is shaped and granted by the learned Trial Judge is accepted or maintained in its entirety would not it as such ipso facto create a clog on the right of redemption ? ( 69 ) THERE is no dispute about the fact that the disputed transaction is found to be usufructuary mortgage. Section 58 (D) of the T. P. Act defines usufructuary mortgage which reads as under:58 Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee and authorises him to retain such possession until payment of 4 the mortgage-money and to receive the rents and profits and to appropriate the same] in lieu of interest or in payment of the mortgage money or partly in lieu of interest [or] partly in payment of the mortgage money the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee. ( 70 ) IN the mortgage deed Exh. 40 which is in vernacular language wherein the expression Vatantar is mentioned. The characteristics of the Vatantar transactions in the Kutchchh area are enumerated hereinbelow: (1) Possession of the mortgaged property is delivered to the mortgagee. (2) Mortgagee is to appropriate rents and profits of the properties in lieu of interest or of principal or of both. (3) Mortgagor does not incur any personal liability to repay the money. (4) Mortgagee is not entitled to foreclose or sue for sale. (2) Mortgagee is to appropriate rents and profits of the properties in lieu of interest or of principal or of both. (3) Mortgagor does not incur any personal liability to repay the money. (4) Mortgagee is not entitled to foreclose or sue for sale. Xxxx xxxx xxxx in Kutchchh area Vatantar transactions consists of these four characteristics. It therefore amounts to usufructuary mortgage. This proposition is very much clear and well propounded in Nandanvan Jayshankar Doshala v. Sorathia Jiva Vasan AIR 1953 Kutch 4. ( 71 ) IT may be noted that in absence of any statutory provisions on the subject the legal customs then prevalent in the then State of Kutchchh were binding and effective. There is no dispute about the fact that Deshi Shirasta known as Deshi Shirasta Sangraha which means legal customs prevailed in the province of Kutchchh. It was published under the authority of His Highness Maharao of Kutchchh. The customs mentioned in the aforesaid title book in absence of statutory provisions on the subject were regarded as authoritative and having binding force. This proposition is also very well settled in aforesaid decision. ( 72 ) SECTION 654 of the Digest of Legal Customs (Deshi Shirasta Sangraha) in Vatantar transaction person lends money on immovable property and the property remains in possession of the lender who uses the property or enjoys its rents or profits in lieu of interest. Thus the said mortgaged property is returned to the borrower on the payment of the principal amount borrowed. This is the sum and substance of the definition of Vatantar in erstwhile State of Kutchchh. In short Vatantar transaction undoubtedly goes to show that it is nothing but a usufructuary mortgage. ( 73 ) IN this connection it will also be material to have a look at the provisions of Sections 76 and 77 of the T. P. Act. Section 76 of the T. P. Act prescribes liability of the mortgagee in possession. Section 77 of the T. P. Act provides the receipts obtained by the mortgagee in lieu of interest out of the mortgaged property. In this context it may be noted that there is no stipulation with regard to the rate of interest in the mortgage deed at Exh. 40. Again there is no claim of any interest in the plaint. Moreover no dispute with regard to the interest is raised in the written statement. In this context it may be noted that there is no stipulation with regard to the rate of interest in the mortgage deed at Exh. 40. Again there is no claim of any interest in the plaint. Moreover no dispute with regard to the interest is raised in the written statement. No specific issue on this count is raised. Obviously therefore there would be no finding on this aspect. ( 74 ) THE learned Trial Judge with due respect to him has failed to appreciate all these facts and circumstances of the case while passing the final order decreeing the suit for redemption. It appeals that the Trial Court has straight way adopted the verbatim pro forma No. 7a in the first Schedule attached to the CPC regardless of the aforesaid aspects and circumstances and peculiar facts of the case. Unfortunately attention of the learned Trial Court Judge was not drawn to the serious aspects that there would not be any question of grant or giving interest on the principal amount in a case like one on hand. In para 13 (iii) the Trial Court has committed serious error in awarding interest at the rate of 9 p. a. on costs charges and expenses [other than the cost of the suit] in respect of the mortgage security. The other side has not been able to explain as to how this reference of 9% interest p. a. is made which is conspicuously absent in Order 34 Rules 7 and 11 of the C. P. C. which are relevant for the purpose of preliminary decree in suit for redemption and interest. No doubt in the present case this being the usufructuary mortgage there may not arise the question of grant of interest on the mortgaged money. ( 75 ) AGAIN the Trial Court has lost sight of the celebrated principles of Dam-Dupat. Rule of Dam Dupat in such cases is not relic of the past. Under the old Hindu Law rule of Dam Dupat where the parties are Hindus interest exceeding the principle is not permissible. Such a rule admittedly applied in the Old Bombay region to which the then State of Kutchchh formed part thereof. It cannot also be disputed that rule of Dam Dupat equally applies to the mortgage suits. Under the old Hindu Law rule of Dam Dupat where the parties are Hindus interest exceeding the principle is not permissible. Such a rule admittedly applied in the Old Bombay region to which the then State of Kutchchh formed part thereof. It cannot also be disputed that rule of Dam Dupat equally applies to the mortgage suits. If the decree of the Trial Court as it stands is not modified not only the rule of Dam Dupat will be infracted but the entire concept of usufructuary mortgage and such Vatantar transactions in the area of Kutchchh will have a paralytic effect and impact and consequently resulting into clogging the decree even if it is passed. ( 76 ) THE amount of interest which is in excess of the principal amount due at that time debars the creditor to recover. It cannot be said that the rule is applicable to the simple loan transactions only and not to the transaction of mortgage. In reality in every mortgage there are two aspects namely (1) loan; and (2) transfer of interest in immovable property as mortgage is principally loan transaction; rule of Dam Dupat which is equitable rule would also be applicable to the mortgage. This court has therefore no hesitation in holding that the rule of Dam Dupat undoubtedly applies to such transactions. This rule is very much reinforced by the decision of the Apex Court in the case of M. R. Patel v. S. B. Rainad AIR 1988 SC 1200 . Therefore. the contention that such rule is not applicable to the mortgage transaction like one on hand is required to be rejected. ( 77 ) THEREFORE appropriate modifica- tions are required to be made in the impugned preliminary decree even in absence of the cross-objections with regard to the interest as aforesaid under the provisions of Order 41 Rule 33 of the C. P. C. so as to advance the cause of justice. This Court therefore will have to pass such appropriate modifications in the preliminary decree hereinafter at the appropriate stage. ( 78 ) IT was also contended that the suit for redemption is filed 30 years after the mortgage transaction. This contention is unsustainable. Firstly on the ground that the limitation was decided by the Trial Court as a preliminary issue below Ex. ( 78 ) IT was also contended that the suit for redemption is filed 30 years after the mortgage transaction. This contention is unsustainable. Firstly on the ground that the limitation was decided by the Trial Court as a preliminary issue below Ex. 33 on July 7 197 The Trial Court has held that the suit is not time barred. There is no dispute about the fact that this issue has therefore become final. Therefore on this count alone such contention about limitation cannot be entertained. However even if it is presumed that such a decision on the question of limitation has not become final then also plea of bar of limitation cannot be allowed to be agitated. The mortgagor will acquire the right to seek redemption only when the clog on equity is removed. In other words until the fetter or clog on the equity of redemption is lifted right of the mortgagor to seek possession of the mortgaged property on redemption cannot be said to exist or to have been acquired. It is found by this Court that there is a clog on the equity of redemption and the condition of 99 years for redemption coupled with a condition to spend unlimited amount for reconstruction from the foundation on the mortgaged property is found invalid. Thus the embargo placed on the right of redemption because of the clog is lifted by the decision of the Court and therefore there cannot be said to be an accrual of right in favour of the mortgagor for going for redemption from the date of transaction of mortgage Ex. 40. This proposition of law is also very well settled by this Court in the decision rendered in Rajgor Bhanji Mulji (Dead.) through his heirs and representative v. Sonabai through reported in 1993 (2) GLR page 1243. Therefore on the second count also the contention with regard to the limitation is not sustainable as the same point is already covered by the decision of this Court. ( 79 ) RIGHTLY speaking if the right of interest as per the decree is calculated and if it is applied from the date of execution of the document as argued then the mortgagor would be required to pay an amount of Rs. 10 333 ps. by way of principal amount and almost an amount of more than Rs. ( 79 ) RIGHTLY speaking if the right of interest as per the decree is calculated and if it is applied from the date of execution of the document as argued then the mortgagor would be required to pay an amount of Rs. 10 333 ps. by way of principal amount and almost an amount of more than Rs. 3 0 0 by way of interest for almost about 50 years by now from the date of the document. Therefore that part of the decree and such contentions are also highly improper and unjust. ( 80 ) ORIGINAL plaintiff had purchased right of equity of redemption from the original mortgagor by registered documents and therefore if the original mortgagor could plead clog on equity purchaser of such equity is also 5 to take the same plea. In the instant case the question as to whether such suit is premature or not especially when the question arose out of defence of mortgage then it has got to be decided. Half-hearted plea that the purchasers from the original mortgagors are not entitled to file the suit and advance plea of clog on redemption. is unsustainable in view of the clear provisions of Section 59 (ao) read with Section 60 of the T. P. Act. The plaintiff is entitled to demonstrate how the suit is not premature as the period of non-redemption as provided in the mortgage deed is a clog on equity of redemption void. The purchasers of equity of redemption from the mortgagors have proved that they are entitled to file the suit and therefore they are entitled to raise plea of clog on equity of redemption. Therefore the contention that the plaintiffs are not entitled to file the suit and advance such plea is not sustainable and therefore it is also rejected. . ( 81 ) HAVING regard to the entire conspectus of the facts emerging from the record of the present case and in light of the aforesaid relevant proposition of law there cannot be any slightest hesitation in holding that the term of 99 years coupled with right to reconstruct and rebuild from the foundation with unlimited amount are not only unfair and unjust but unconscionable and inequitable harsh and oppressive. Therefore they are void and invalid running counter to the long standing and celebrated doctrine of once mortgage always a mortgage. Therefore they are void and invalid running counter to the long standing and celebrated doctrine of once mortgage always a mortgage. Therefore all the contentions raised on behalf of the appellants are totally without any substance and the appeal is therefore totally meritless. ( 82 ) THE deed of mortgage Exh. 40 as stated earlier is in vernacular language and with some words popularly used in the then erstwhile State of Kutchchh. Therefore in order to have a better understanding of the terms and tenure of the deed transaction of the mortgage deed Exh. 40 with the consent of the parties was got prepared during the course of the appeal by the Translation Branch of the High Court. After having seen the same the learned Advocate for the appellant Mr. Nanavaty pointed out that at one place vatantar vechan is not properly translated. For that he contended that the words vatantar vehan connotation signifies mortgage cum sale whereas in the translation which is prepared by the translator of this Court at one place in Exh. 40 merely mentions mortgage while translating vatantar- vechan. According to Mr. Nanavaty mortgage-cum-sale ought to have been properly reflected in the transaction. ( 83 ) LEARNED Advocate appearing for the respondents have contended that the vatantar vechan in the mortgage deed Exh. 40 is loosely mentioned and has no significance after taking into consideration the overall picture emerging from the transaction itself. It is further submitted that there are certain terminologies and connotations used in the mortgage deed Exh. 40 which would undoubtedly go to show that Exh. 40 is nothing but a mortgage only and nothing but mortgage. ( 84 ) THE Trial Court factually rightly found that the document Ex. 40 is nothing but a mortgage document. This factual finding of the Trial Court is very much reinforced by the totality of circumstances and the connotations made in the document Ex. 40. For example the following observations in the mortgage deed Ex. 40 are very eloquent:. . . . THEREFORE you the mortgagee may enjoy this vada and other property appurtenant thereto and may give the same on rent or may deal with the same in the manner you the mortgagee may like and may recover the money amount or dues by using the said property. Now I have nothing to do with the said property. . . . THEREFORE you the mortgagee may enjoy this vada and other property appurtenant thereto and may give the same on rent or may deal with the same in the manner you the mortgagee may like and may recover the money amount or dues by using the said property. Now I have nothing to do with the said property. The period of this mortgage is fixed for 99 years. You are entitled to make additions and alterations in this property of vada or to incur the expenses for repairing thereof according to your desire. That this mortgage will be redeemed after making payment of 31 0 Koris. . . . The aforesaid connotations in the mortgage deed Exh. 40 unequivocally indicate that the document in question is nothing but a mortgage transaction once a mortgage is always a mortgage. This principle cannot be lost sight of. Many places in the document at Exh. 40 expression mortgagee and mortgagor are mentioned. They are also very significant expressions. Again in the beginning of the document the original mortgagee is mentioned or addressed as creditor. it may also be stated that the expression dhanik means owner of dhan and the mortgagee. Thus the word dhanik signifies the expression mortgagee. The expression matadar means executant of the mortgage deed who is the owner of the mortgaged property. The expression vatantar means transaction of usufructuary mortgage. Similarly the word Bandhi means time limit for redemption. The aforesaid expressions are typical popular words used in the mortgage transactions and were used in the mortgage transactions in the erstwhile State of Kutchchh. In so far as the meaning of the aforesaid words and expression is concerned there is no dispute. Having regard to the facts and circumstances emerging from the record and the overall picture emerged from the document Exh. 40 it is unequivocally proved that it is a mortgage transaction and not a sale as contended on behalf of the appellant original mortgagee. The Trial Court has rightly rejected such contention. The factual aspect on this score has remained unassailable. ( 85 ) ON behalf of the appellant Mr. Nanavaty has submitted that in view of the custom prevalent in the erstwhile State of Kutchchh such document like Exh. 40 used to be executed for outright sale (Tadho Aghat ). The Trial Court has rightly rejected such contention. The factual aspect on this score has remained unassailable. ( 85 ) ON behalf of the appellant Mr. Nanavaty has submitted that in view of the custom prevalent in the erstwhile State of Kutchchh such document like Exh. 40 used to be executed for outright sale (Tadho Aghat ). In other words he has contended that pursuant to the then custom prevalent with a view to avoid stamp fees under the guise of mortgage outright sale came to be executed. In this connection he has placed reliance on the contention raised in para 6 of the written statement Exh. 17 and the evidence of one Dinkarrai who was examined at Exh. 18 in the Trial Court. This submission cannot be sustained in view of the evidence and the facts and circumstances emerging from the record. This submission is totally meritless. Firstly no such custom is proved strictly as required under the law. Secondly even if a party with a view to avoid stamp fees enters into mortgage transaction in place of outright sale such party cannot be allowed to take advantage of its own wrong. Thirdly if anything is done to save the stampt fees and a particular document is prepared with a specific nomenclature party cannot turn round relying on the nature of the document and the intention of the parties. This contention is therefore farthest from the truth. However it is advanced with a view to show that there was no transaction of mortgage. What is the use of polishing the brass when the whole ship is sinking ? Factual observations and the findings reached by the Trial Court are quite strong unimpeachable and unassailable. This Court is fully satisfied that those findings of the Trial Court are fully justified. ( 86 ) THE appeal therefore fails. While dismissing the appeal in view of the peculiar facts and circumstances and exercising the powers of this Court under Order 41 Rule 33 of the C. P. C. the impugned decree shall stand modified as follows: (1) That the amount of Rs. 10 333 ps. is declared to be due till the date towards the amount of mortgage. (2) That the accounts shall be taken only in respect of the charges expenses and costs of construction incurred by the defendant-mortgagee in respect of the mortgage security only without any interest at all. 10 333 ps. is declared to be due till the date towards the amount of mortgage. (2) That the accounts shall be taken only in respect of the charges expenses and costs of construction incurred by the defendant-mortgagee in respect of the mortgage security only without any interest at all. (3) The aforesaid amount of Rs. 10 333 plus the amount which will be found due after the accounts are taken shall be paid within six months from the date and if the amount is paid within the stipulated period of six months then the defendants shall deliver upto the plaintiff or to such persons as the plaintiff may appoint all such documents in their power and/or possession relating to the mortgaged property and shall if so required retransfer the said mortgaged property to the defendant at his costs free from mortgage all charges and encumbrances created by the defendants or any person claiming under them or where the defendants claim by deriving the title by those under whom they claim and shall put the plaintiff in possession of the property. Consequently this appeal shall stand dismissed with aforesaid observations and modifications in the impugned judgment and preliminary decree under Order 41 Rule 33 of the C. P. C. with no order as to costs throughout. .