Judgment :- 1. Defendant in O.S.No.330 of 1980, on the file of Additional District Munsifs Court, Pondicherry, is the appellant. 2. Suit filed by plaintiff was in effect for partition and for reconveyance of the property. After the suit was filed, the original plaintiff died, and respondent herein was impleaded as legal heir in the suit 3. It is the case of the plaintiff that on 21.3.1975 she executed a mortgage in favour of the defendant after receipt of Rs.2,500, agreeing to repay the amount within a period of two years from the date of mortgage. Possession was also not handed over to the defendant. Plaintiff continued to be in possession and while so, the defendant trespassed into the property in December, 1979. On 19.1.1979, plaintiff requested the defendant to hand over possession of the property on receipt of the amount which she had borrowed. He refused to do so. The reason for the refusal is that in the mortgage deed executed by her, there is a provision that in case the redemption does not take place within two years, defendant can enjoy the property as absolute owner. This, according to the plaintiff is invalid and amounts to a clog on redemption. The mortgage is not barred by limitation and, therefore, she is entitled to the relief. 4. In the written statement filed by the appellant, it was contended that the document is a conditional sale deed as per which the defendant had obtained title and possession. On the very date of the document itself, a lease deed was executed by plaintiff and she agreed to pay a sum of Rs.40 towards rent every month. There is a provision for reconveyance which has to be exercised within a period of two years. Plaintiff having failed to exercise that option, cannot now recover the property. According to him, time is the essence of the contract in the case of reconveyance after the stipulated period of two years, appellant also filed a Revision Petition on the file of Rent Controller, Pondicherry, for eviction. In the meanwhile, plaintiff filed an application before the Deputy Tahsildar for getting possession of the property and, therefore, the Rent Control Petition was not pressed. He prayed for dismissal of the suit. 5. The trial court took oral and documentary evidence. In the meanwhile, plaintiff filed an application before the Deputy Tahsildar for getting possession of the property and, therefore, the Rent Control Petition was not pressed. He prayed for dismissal of the suit. 5. The trial court took oral and documentary evidence. Exs.A-1 to A-4 was marked on the side of the plaintiff and Exs.B-1 to B-5 were marked on the side of the defendant. The additionally impleaded plaintiff was examined as P.W.I. Defendant examined himself as D.W.1 and also examined one Balaraja as D.W.2. The trial court dismissed the suit. It was of the view that the document in question (27.3.1979) is not a mortgage since plaintiff never used the word ‘mortgage’ in that document. The trial court was of the further view that the plaintiff is having a right to repurchase the property which she had sold to the defendant only if she had exercised that right within a period of two years. The allegation that the amount was tendered on 19.3.1979 even if true, the same being belated defendant is not bound to accept the same. The suit was, therefore, dismissed. 6. It may also be stated that the trial court found that the second plaintiff has not proved her status as a legal heir of the deceased plaintiff, entitling her to redeem the property. 7. Aggrieved by the judgment, plaintiff preferred A.S.No.190 of 1982, on the file of Additional District Judge, Pondicherry. From the judgment of the lower appellate court, it is seen that the status of the additional plaintiff as legal heir of the original plaintiff is not disputed, and both parties seem to have argued the matter only regarding the interpretation of Ex.A-2, i.e. the document dated 27.3.1975. The lower appellate court held that the document is only a mortgage and it continued as a mortgage. It also came to the conclusion that the plaintiff was occupying the property in spite of the deed, and time is not the essence of contract. Plaintiff is entitled to redeem the property; and since the mortgage amount has already been deposited into court, recovery was allowed. The sane is challenged in this second appeal. 8. It also came to the conclusion that the plaintiff was occupying the property in spite of the deed, and time is not the essence of contract. Plaintiff is entitled to redeem the property; and since the mortgage amount has already been deposited into court, recovery was allowed. The sane is challenged in this second appeal. 8. The following substantial questions of law were formulated for consideration in this second appeal: “(1) Whether the lower appellate court is right in its conclusion that the deed is only a mortgage with conditional sale and not a conditional sale in the absence of any recital to the effect in the deed. and (2) Whether the lower appellate court has erred in concluding that the time is not the essence of the contract when the recitals are very clear to the contrary. 9. 1 heard learned counsel for both parties in detail. 10. A reading of the document (Ex.A-2) shows that it is purely a mortgage with a stipulation that if the amount is not paid and the property is not recovered within two years from the date of mortgage, defendant will become the owner of the property and the executant thereafter will have no right over the same. Ex.A-2 reads thus: "TAMIL" It is further clear from the deed that the executant received a sum of Rs. 1,500 and handed over possession of the property to the defendant. She also declared that the property is free from any encumbrance. The consideration is not mentioned as sale consideration and there is no transfer of title pursuant to the deed. It further says that within a period of two years, plaintiff shall repay the amount, and in case she fails to do so, defendant may continue in possession as absolute owner and the plaintiff or her successor-in-interest will not have any right over the property and the defendant may treat the document as a sale. 11. What is the legal consequence of such a document.. According to me, the clause prevents the plaintiff from getting redemption and recovery of the property. It is the case of the plaintiff that the value of the property was more than Rs. 12,000 as on that date, and for necessity she had to borrow from the defendant. Even though the defendant denies that the value will be Rs. According to me, the clause prevents the plaintiff from getting redemption and recovery of the property. It is the case of the plaintiff that the value of the property was more than Rs. 12,000 as on that date, and for necessity she had to borrow from the defendant. Even though the defendant denies that the value will be Rs. 12.000, he has no case that the value will be only Rs.2,500 which he paid to the plaintiff as on that date. The stipulation which prevented the plaintiff from redemption, according to me, is a clog on redemption. 12. In ‘Rashbehary Ghose on Law of Mortgage’-Tagore Law Lectures-Seventh Edition (1997), at page 239, the learned Author, on the basis of decided cases, has held thus: “While trying to enumerate the stipulations, which operate as clogs on the equity or redemption the Gujarat High Court in Ghanchi v. Gusal, 1995 AINC 134 said that it is necessary that-(1) it must seek to prevent the mortgagor from redeeming absolutely or at any time after the money has become due; (ii) it must be a part of the same transaction as the mortgage deed; (iii) it must have been entered into by the mort-gagee in his character of a mortgagee.” If these conditions are satisfied, any stipulation which prevents the mortgagor from the redemption of mortgage will amount to clog, and it will be invalid. 13. In one of the early decisions of the Supreme Court reported in Ganga Dhar v. Shankar Lal , A.I.R. 1958 S.C. 770 their Lordships considered what is meant by clog on redemption, and what should be the approach of the courts in such cases. In fact, their Lordships considered the history. In paragraph 6 of the judgment, at page 772. Their Lordships held thus: “The rule against clog on the equity of redemption is that a mortgage shall always be redeemable and a mortgagors right to redeem shall neither be taken away nor be limited by any contract between the parties. The principle behind the rule was expressed by Lindley, M.R. in Santley v. Wilde, (1999)2 Ch. 474 (B)in thesewords: “The principle is this: a mortgage is a conveyance of land or an assignment of chattels as a security for the payment of a debt or the discharge of some other obligation for which it is given. The principle behind the rule was expressed by Lindley, M.R. in Santley v. Wilde, (1999)2 Ch. 474 (B)in thesewords: “The principle is this: a mortgage is a conveyance of land or an assignment of chattels as a security for the payment of a debt or the discharge of some other obligation for which it is given. This is the idea of a mortgage and the security is redeemable on the payment or discharge of such debt or obligation, any provision to the contrary notwithstanding. That, in my opinion, is the law. Any provision inserted to prevent redemption on payment or performance of the debt or obligation for which the security was given is what is meant by a clog or fetter on the equity of redemption and is therefore void. It follows from this, the “once a mortgage always a mortgage.” Their Lordships further held in pars 12 thus: “…It is a power evolved in the early English Courts of Equity for a special reason. All through the ages the reason has remained constant and the couits power is therefore limited by that reason. The extent of this power has, therefore, to be ascertained by having regard to its origin. It will be enough for this purpose to refer to two authorities on this question. In a very early ease, namely, Vernon v. Bethell Vernon v. Bethell Vernon v. Bethell ,(1762)2 Eden 110 at p. 113:28 Ep 838 at p.839(D) Earl of Northington L.C. said. “This Court, as a court of conscience, is very jealous of person taking securities for a loan, and coverting such securities into purchases. And therefore I take it to be an established rule, that a mortgagee can never provide at the time of event or condition on which the equity of redemption shall be discharged, and the conveyance absolute. And there is great reason and justice in this rule, for necessitous men are not, truly speaking, freemen, but, to answer a present exigency will submit to any terms that the crafty may impose upon them.” In comparatively recent times Viscount Haldane, L.C. repeated the same view when he said in G. and C.Kerglinger v. New Potagonio Meat and Cold Storage Company Ltd. G. and C.Kerglinger v. New Potagonio Meat and Cold Storage Company Ltd. G. and C.Kerglinger v. New Potagonio Meat and Cold Storage Company Ltd., (1914) A.C. 25at pp. 35 and 36 (E): “This jurisdiction was merely a special application of a more general power to relieve against penalties and to mould them into mere securities. The case of the common law mortgage of land was indeed a gross one. The land was conveyed to the creditor upon the condition that if the money he had advanced to the feaffor was repaid on a date and at a place named, the fee simple would revest in the letter, but that if the condition was not strictly and literally fulfilled he should lose the land for ever. What made the hardship on the debtor a glaring one was that the debt still remained unpaid and could be recovered from the feaffer notwithstanding that he had actually forfeited the land to the mortgagee. Equity, therefore, at an early date began to relieve against what was virtually a penalty by compelling the creditors use his legal title as a mere security. My Lords, this was the origin of the jurisdiction which we are now considering and it is important to bear that origin in mind. For the end to accomplish which the jurisdiction has been evolved, ought to govern and limit in exercise by equity judges. That one has always been to ascertain, by parol evidence if need be, the real nature and substance of the transaction, and if it turned out to be in truth one of mortgage simply, to place it on that footing. It was, in ordinary cases, only where there was conduct which the Court of Chancery regarded as unconscientious that it interfered with freedom of contract. The lending of money, on mortgage or otherwise, was looked on with suspicion, and the court was on the alert to discover want of conscience in the terms imposed by lenders. The reason then justifying the courts power to relieve a mortgagor from the effects of his bargain is its want of conscience. Putting it in more familiar language the courts jurisdiction to relieve a mortgagor from his bargain depends on whether it was obtained by taking advantage of any difficulty or embarrassment that he might have been in when he borrowed the moneys on the mortgage. Was the mortgagor oppressed. Was he imposed upon. If he was. then he may be entitled to relief” In para. Was the mortgagor oppressed. Was he imposed upon. If he was. then he may be entitled to relief” In para. 7 of the judgment, their Lordships said thus: “The right of redemption, therefore, cannot be taken away. The court will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage. One thing therefore, is clear, namely, that the term in the mortgage contract, that on the failure of the mortgagor to redeem the mortgage within the specified period of six months the mortgagor will have no claim over the mortgaged property, and the mortgage deed will be deemed to be a deed of sale in favour of the mortgagee, cannot be sustained. It plainly takes away altogether, the mortgagors right to redeem the mortgage after the specified period. This is not permissible, for “once a mortgage always a mortgage” and therefore always redeemable. The same result also follows from Sec. 60 of the Transfer of Property Act. 14. In Pomal Kanji Govindji v. Vrajilal Karsandas Purohit , (1989)1 S.C.C. 458 in paragraph 21 of the judgment, their Lordships have said thus: “The rights and liabilities of the mortgagor are controlled by the provisions of Sec.60 of the Transfer of Property Act, 1882. The clog on redemption has been noted in Mullas Transfer of Property Act, 7th Edn., page 401 that a mortgage being a security for the debt, the right of redemption continues although the mortgagor fails to pay the debt at due date. Any provision inserted to prevent, evade or hamper redemption is void. That is implied in the maxim “once a mortgage always a mortgage”. Collins, M.R. in Jarrah Timber & Wood Paving Corporation v. Samuel, (1993)2 Ch. 1 (CA)at page 7 observed that it is the right of a mortgagor on redemption, by reason of the very natureof a mortgage to get back the subject of the mortgage and to hold and enjoy as he was entitled to hold and enjoy it before the mortgage.” 15. Paragraphs 22, 27 and relevant portions of paragraphs 28, 29, 30 of the above judgment read thus: “The doctrine “clog on the equity of redemption” is a rule of justice, equity and good conscience. It must be adopted in each case to the reality of the situation and the individuality of the transaction. Paragraphs 22, 27 and relevant portions of paragraphs 28, 29, 30 of the above judgment read thus: “The doctrine “clog on the equity of redemption” is a rule of justice, equity and good conscience. It must be adopted in each case to the reality of the situation and the individuality of the transaction. We must take note of the time, the condition, the price spiral, the term bargain and the other obligations in the background of the financial conditions of the parties.Therefore, in our opinion, in view of the evidence it is not possible to hold that there was no clog on the equity of redemption in these cases. It is a right of the mortgagor on redemption, by reason of the very nature of the mortgage, to get back the subject of the mortgage and to hold and enjoy as he was entitled to hold and enjoy it before the mortgage. If he is so prevented, the equity of redemption is bad in law. If he is so prevented the equity of redemption is affected by that whether aptly or not, and it has always been termed as a clog. Such a clog is inequitable. The law does not countenance it. Bearing the aforesaid background in mind, each case has to be judged and decided in its own perspective. As has been observed by this Court that long term for redemption by itself, is not a clog on equity of redemption. Such a clog is inequitable. The law does not countenance it. Bearing the aforesaid background in mind, each case has to be judged and decided in its own perspective. As has been observed by this Court that long term for redemption by itself, is not a clog on equity of redemption. Whether or not in a particular transaction there is clog on the equity of redemption depends primarily upon the period of redemption, the circumstances under which the mortgage was created, the economic and financial position of the mortgagor, and his relationship vis-a-vis him and the mortgagee, the economic and social conditions in a particular country at a particular point of time, custom, if any, prevalent in the community or the society in which the transaction takes place, and the totality of the circumstances under which a mortgage is created, namely, circumstances of the parties, the time, the situation, the clauses for redemption either for payment of interest or any other sum, the obligations of the mortgagee to construct or repair or maintain the mortgaged property in cases of usufractuary mortgage to manage as a matter of prudent management, these factors must be co-related to each other and viewed in a comprehensive conspectus in the background of the facts and circumstances of the facts and the circumstances of each case, to determine whether these are clogs on equity of redemption.” [Italics supplied][Para. 27] XX XX XX “…..We live in changing circumstances. Mortgage is a security of loan. It is an axiomatic principle of life and law that necessitous men are not free men. A mortgage is essentially and basically a conveyance in Law or an assignment of chattels as a security for the payment of debt or for discharge of some other obligation of which it is given. The security must, therefore, be redeemable on the payment or discharge of such debt or obligation. Any provision to the contrary, notwithstanding, is a clog or fetter on the equity of redemption and hence, bad and void. Once a mortgage must always remain a mortgage”, and must not be transformed into a conveyance or deprivation of the right over the property.” (relevant portion of Para 38) “This is the English law based on principles of equity. This is the Indian law based on Justice, equity and good conscience. We reiterate that position.” (relevant portion of Para 29). Once a mortgage must always remain a mortgage”, and must not be transformed into a conveyance or deprivation of the right over the property.” (relevant portion of Para 38) “This is the English law based on principles of equity. This is the Indian law based on Justice, equity and good conscience. We reiterate that position.” (relevant portion of Para 29). Sec.60 of the Transfer of Property Act, 1882, conferred on the mortgagor the right of redemption. This is a statutory right. The right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage subsists.” (relevant portion of Para 30) 16. In Jadam Jampur Bai v. Jinki Siddappa, A.I.R. 1944 Mad. 237:57 L.W. 42 it has been held thus: “In a deed of conditional sale it was recited by the transferor, “if we do not pay your amount by the due date, (viz., within five years) we agree to this document being treated as a sale deed:Held that the conveyance was not a sale but was to operate as a sale after the period of five years if the amount was not paid, and the transferor was entitled to redeem. The recital that “after the due date you and your heirs will have absolute powers in respect of the property, we and our heirs will not have any rights” would merely amount to a clog on the equity of redemption.” 17. Venkata Satyanarayana v. National Insurance Co. , A.I.R. 1947 Mad. 51:59 L.W. 441it has been held thus: “A mortgagee is not allowed at the time of making the loan to enter into a contract for the purchase of the mortgaged property: 1904 A.C. 323and 21 Mad. 110, relied on. 18. In P.Danalakshmi Ammal v. G.Anthuraj and others P.Danalakshmi Ammal v. G.Anthuraj and others P.Danalakshmi Ammal v. G.Anthuraj and others , A.I.R. 1972 Mad. 185:85 L.W. 1 it has been held thus: “The property, an extent of 2 acres 75 cents, originally belonged to one Gabriel by purchase in June, 1932. He usufructuarily mortgaged one acre comprised in S.No.124 out of 2 acres 75 cents to one Antony Cruz for Rs.300. The deed provided for 30 years for redemption. It contained a further provision that if there was default in payment of the mortgage money as stipulated in the deed, the transaction should be regarded as an absolute sale. He usufructuarily mortgaged one acre comprised in S.No.124 out of 2 acres 75 cents to one Antony Cruz for Rs.300. The deed provided for 30 years for redemption. It contained a further provision that if there was default in payment of the mortgage money as stipulated in the deed, the transaction should be regarded as an absolute sale. We may immediately remark that this operated as a clog and this clause will be of no effect…” 19. In ‘B.B.Mitra on the Transfer of Property Act, 1882’ -14th Edition (1982), after relying on various case-laws, the learned Author has said thus (at page 433): “A covenant amounting to a clog on redemption has no binding force either on the mortgagor or his assigns…. An agreement which amounts to a clog on the equity of redemption cannot be enforced even though it is contained in a consent-decree. An illegal term embodied in a consent-decree can-not make that term enforceable nor can it be a defence in a subsequent suit for redemption.” 20. In ‘Mulla on Transfer of Property Act’- 8th Edition, at pages 500 and 501, the learned Author has taken the same view after referring to various decisions of the Supreme Court and High Courts. 21. If the stipulation in Ex.A-2 is a clog on redemption, naturally, the plaintiff can ignore the same. 22. Learned counsel for the appellant submitted that the suit filed by the plaintiff is one for re-transfer of the property on receipt of the consideration and, therefore, time must be taken as essence of the contract. Learned counsel, for the said purpose, relied on the decision reported in Smt.Bismillah Begum (dead) by L.Rs. v. Rahmatullah Khan (dead) by Lrs. Smt.Bismillah Begum (dead) by L.Rs. v. Rahmatullah Khan (dead) by Lrs. Smt.Bismillah Begum (dead) by L.Rs. v. Rahmatullah Khan (dead) by Lrs. , (1998)1 Supreme 310 :(1998)1 L.W. 825. I have already said that Ex.A-2 is not an agreement of reconveyance. It is purely a mortgage deed with a void stipulation. Hence the decision cited by learned counsel has no application to the facts of this case. Ex.A-2 is not a sale deed, and only in such cases, the question of reconveyance will arise. 23. No other point was argued before me by learned counsel for the appellant. 24. For the reasons stated above, the substantial questions of law are found against the appellant. 25. Ex.A-2 is not a sale deed, and only in such cases, the question of reconveyance will arise. 23. No other point was argued before me by learned counsel for the appellant. 24. For the reasons stated above, the substantial questions of law are found against the appellant. 25. In the result, the second appeal is dismissed with costs.