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2013 DIGILAW 1765 (MAD)

Baby Ammal v. V. Srinivasan

2013-04-25

P.R.SHIVAKUMAR

body2013
JUDGMENT 1. The defendants 1 and 2 in the Original Suit O.S.No.696/2004 on the file of the I Additional District Munsif, Pondicherry are the appellants in the second appeal. The first respondent V.Srinivasan as plaintiff filed the said Original Suit against the appellants 1 and 2 herein and the second respondent Annamalai, arraying them as defendants 1 to 3 respectively. A house bearing old door No.79, new door No.3/16 in Mariamman Koil Street, Saram Village, Oulgaret Sub Registration District and Pondicherry Registration District, morefully described in the plaint schedule is the suit property. The first appellant Baby Ammal is the wife of the second appellant/second defendant Senthilvel. Second appellant Senthilvel and the second respondent Annamalai are the sons of Varadarasu Pillai. The suit property originally belonged to the said Varadarasu Pillai. According to the first respondent/plaintiff, the said Varadarasu Pillai executed a mortgage by conditional sale in favour of the first respondent/plaintiff Srinivasan, who is also the son of the said Varadarasu Pillai, on 11.10.1973 for a consideration of Rs.6,500/-and the property was handed over to the first appellant/first defendant with a condition that in case the said amount would be repaid within five years thereafter, the first appellant/first defendant would execute a Sale Deed in favour of Varadarasu Pillai in respect of the suit property. 2. Contending that the said transaction amounted to a mortgage and the first respondent/plaintiff is entitled to redeem the mortgage by paying back the amount, which formed the consideration of the mortgage and that his attempt to redeem the mortgage by making payment of the same to the first appellant/first defendant proved ineffective, as they refused to recognise the right of redemption, he had filed the suit for the relief of redemption of mortgage, for a direction against the first appellant/first defendant to deliver vacant possession of the suit property and also for a direction to the Sub Registrar, Oulgaret Registrar office to cancel the mortgage deed dated 11.10.1973 registered as document No.1639/1973 and for cost. 3. The 2nd respondent/3rd defendant Annamalai claiming to be a co-owner entitled to 1/3rd share in the suit property on the death of Varadarasu Pillai has contended that, as a co-owner, he was in possession and enjoyment of the suit property till June 2002 and thereafter vacated the suit property, since it had become dilapidated and uninhabitable. 3. The 2nd respondent/3rd defendant Annamalai claiming to be a co-owner entitled to 1/3rd share in the suit property on the death of Varadarasu Pillai has contended that, as a co-owner, he was in possession and enjoyment of the suit property till June 2002 and thereafter vacated the suit property, since it had become dilapidated and uninhabitable. It was his further contention that though Varadarasu Pillai originally mortgaged the property under a Deed of Mortgage by conditional sale dated 11.10.1973 in favour of the first appellant/first defendant, who is none other than the wife of the second appellant/second defendant, possession of the suit property was never handed over to the first defendant by the said Varadarasu Pillai at any point of time. 4. It was the further contention of the third defendant that there was a clause for the conditional sale in the above said document dated 11.10.1973, the same was never acted upon and the suit property was continued to be in peaceful possession and enjoyment of the third defendant and his family. It is his further contention that, if at all there is any right of redemption, it has to be exercised by all the legal heirs of Varadarasu Pillai and not the first respondent/plaintiff alone. Based on the above said contentions, the third defendant had prayed for the dismissal of the suit. 5. The first and second defendants filed a written statement contending that the document executed by Varadarasu Pillai on 11.10.1973 is not a Deed of Mortgage by conditional sale and on the other hand, it is a Sale Deed coupled with an agreement for re-conveyance reserving only a right to re-purchase the property within a period of five years from the date of the said document on making payment of the amount noted as consideration in the said document. They have also contended that pursuant to the execution of the said document, Varadarasu Pillai handed over possession of the suit property to the first appellant/first defendant on 11.10.1973 itself. Thereafter it came to be possessed and enjoyed by the first appellant/first defendant as its absolute owner. It is the further contention of the respondents/defendants 1 and 2 that though Varadarasu Pillai had reserved a right to re-purchase the property, he failed to do so within the stipulated time and thus the first appellant/first defendant secured absolute title and became absolute owner of the suit property. It is the further contention of the respondents/defendants 1 and 2 that though Varadarasu Pillai had reserved a right to re-purchase the property, he failed to do so within the stipulated time and thus the first appellant/first defendant secured absolute title and became absolute owner of the suit property. Based on the above said contentions and also contending that the document dated 11.10.1973 could not be construed as a mortgage deed, the appellants/defendants 1 and 2 had contended that there was no right of redemption to the first respondent/plaintiff, as claimed by him and hence the suit for redemption was liable to be dismissed. 6. Based on the above said pleadings, the trial court framed the following issues: "1. Whether the plaintiff is entitled for redemption of mortgage deed dated 11.10.1973 executed by the plaintiff's father Varadarasu Pillai in favour of the first defendant by virtue of the said Mortgage Deed registered in Document No.1639/1973 on the file of the Sub Registrar, Oulgaret Sub Registrar Office? 2. Whether the plaintiff is entitled for a mandatory injunction directing the Sub Registrar, Oulgaret Registrar Office to cancel the mortgage deed dated 11.10.1973? 3. Whether the plaintiff is entitled for a mandatory injunction directing the first defendant to deliver the vacant possession of the suit property? 4. Whether the plaintiff is entitled for the relief as prayed for? 5. To what other reliefs, the parties are entitled? 7. Two witnesses were examined as PWs.1 and 2 and three documents were marked as Exs.A1 to A3 on the side of the first respondent/plaintiff, whereas one witness was examined as DW.1 and five documents were marked as Exs.B1 to B5 on the side of the appellants/defendants. The learned trial judge, at the conclusion of trial, upon considering the pleadings and evidence in the light of the arguments advanced on both sides, concluded that the document in question, namely the document executed by Varadarasu Pillai in favour of the first appellant/first defendant Baby Ammal in respect of the suit property registered as document No.1639/1973 was a mortgage by conditional sale. However, holding that after the death of Varadarasu Pillai, the plaintiff and defendants 2 and 3 became jointly entitled to redeem the mortgage and since all of them had not joined together to file the suit for redemption and the suit was filed by the plaintiff alone, he was not entitled to the relief of redemption of mortgage sought for by him. Based on such finding, the learned trial judge dismissed the suit without cost. 8. Aggrieved by and challenging the decree of the trial court dismissing the suit, the first respondent herein/plaintiff preferred an appeal on the file of the Additional Sub Judge, Pondicherry in A.S.No.27/2008. The learned lower appellate judge confirmed the finding of the trial court that the document dated 11.10.1973 executed by Varadarasu Pillai was only a mortgage by conditional sale and not a sale coupled with an agreement for repurchase. However the learned appellate judge disagreed with the finding of the trial court that after the death of the original mortgagor, all his legal heirs should join together in seeking redemption and that the suit filed by one of the legal heirs alone for redemption of mortgage could not be maintained and held that the plaintiff being a person having interest in the property mortgaged, is entitled to file the suit for redemption. Based on the above said finding, the learned Additional Subordinate Judge (lower appellate judge) allowed the first appeal, set aside the decree passed by the trial court dismissing the original suit and granted a decree for redemption as prayed for directing the plaintiff to deposit the mortgage amount of Rs.6,000/- within a period of one month from the date of judgment and directing the defendants to hand over vacant possession of the suit property to the plaintiff within a period of two months from the date of such deposit. 9. Aggrieved by and challenging the said decree passed by the lower appellate judge, the appellants/defendants 1 and 2 have come forward with the present second appeal on various grounds set out in the memorandum of grounds of second appeal. 10. The second appeal has been admitted identifying the following questions to be the questions of law involved in the second appeal. 10. The second appeal has been admitted identifying the following questions to be the questions of law involved in the second appeal. 1) Whether the courts below misconstrued the nature of document marked as Ex.A1 to be a mortgage by conditional sale; 2) Whether the lower appellate court has committed an error in holding that limitation for redemption would start running from the expiry of the periods stipulated in the mortgage deed for the redemption of the mortgage. 11. The arguments advanced by Mr. K.Sukumaran, learned counsel for the appellants and by Mr. P.Rabindran, learned counsel for the first respondent were heard. The materials available on record were also perused. 12. The parties to the appeal are closely related. Second appellant (second defendant), first respondent/plaintiff and the second respondent/3rd defendant are the sons of late Varadarasupillai. Varadarasupillai is no more. It is an admitted fact that the suit property was the self-acquisition of Varadarasupillai and hence it was his separate property. It is also not in dispute that late Varadarasupillai executed the registered deed dated 11.10.1973 bearing document No.1639/1973, which has been marked as Ex.A1. Though the second respondent/3rd defendant would have contended before the trial court that the said document was not given effect to and possession was not handed over to the first appellant/first defendant and it was he, who was in possession of the suit property from the date of death of his father, there is no evidence adduced on his side to prove the said stand. On the other hand, the oral and documentary evidence adduced on the side of the plaintiff as well as the defendants 1 and 2 are to the effect that Ex.A1 was acted upon and possession was handed over to the first appellant/first defendant and as on the date of filing of the suit, possession was with the first defendant. Of course it is true that the first defendant is none other than the wife of the second defendant. But the same will not convert her possession into one of possession by her husband also simply because both of them lived under the same roof. Moreover the first respondent/plaintiff filed the suit on the premise that the possession of the suit property was handed over to the first appellant/first defendant on the date of execution of Ex.A1 dated 11.10.1973. But the same will not convert her possession into one of possession by her husband also simply because both of them lived under the same roof. Moreover the first respondent/plaintiff filed the suit on the premise that the possession of the suit property was handed over to the first appellant/first defendant on the date of execution of Ex.A1 dated 11.10.1973. That is the reason why, while contending the said deed to be a deed of mortgage by conditional sale, the first respondent/plaintiff has prayed for the relief of redemption of mortgage and for recovery of possession. 13. The original mortgagor was Varadarasu Pillai. On his death, his sons, namely the plaintiff, defendants 2 and 3, as his legal heirs, became entitled to the right of the original mortgagor, namely right of redemption. But the trial court after holding Ex.A1 to be a mortgage by conditional sale, non-suited the plaintiff for the relief of redemption and other reliefs on the sole ground that the other legal heirs of Varadarasu Pillai had not chosen to join the plaintiff in seeking redemption. The said finding of the trial court was rightly reversed by the learned first appellate judge by making a reference to Section 91 of the Transfer of Property Act, 1882, which enumerates the persons entitled to redeem the mortgage or institute a suit for redemption. Section 91 of the Transfer of Property Act, 1882 reads as follows: 91. Persons who may sue for redemption.-Besides the mortgagor, any of the following persons may redeem, or institute a suit for redemption of, the mortgaged property, namely,- (a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same; (b) any surety for the payment of the mortgage-debt or any part thereof; or (c) any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property. A reading of the said section will show that any person, who has got any interest in the property mortgaged or any interest upon the right to redeem the mortgage is entitled to redeem the mortgage or file a suit for redemption irrespective of the fact whether there are other persons similarly interested. 14. A reading of the said section will show that any person, who has got any interest in the property mortgaged or any interest upon the right to redeem the mortgage is entitled to redeem the mortgage or file a suit for redemption irrespective of the fact whether there are other persons similarly interested. 14. In this case, on the death of the original mortgagor Varadarasupillai, all his sons, namely plaintiff and defendants 2 and 3, being his legal heirs, became persons having interest in the property mortgaged and having interest upon the right to redeem the same. The learned lower appellate judge rightly held that the suit filed by one of the legal heirs of Varadarasupillai for redemption of the properties mortgaged by him is perfectly maintainable and sections 92 and 95 of the Transfer of Property Act, 1882 will also support the said finding. Section 92 provides for a right of subrogation in favour of the person redeeming the mortgage either as a person having interest in the mortgaged property or as a co-mortgagor. Section 95 also provides for such subrogation against the co-mortgagors. In view of the same, the mistake committed by the trial court in holding that a suit by one of the legal heirs of the original mortgagor alone is not maintainable, has been rightly reversed by the learned lower appellate judge. In fact, the said view of law expressed by the learned lower appellate judge that any one of the co-mortgagors or any one of the legal heirs of the original mortgagor after the death of original mortgagor can validly maintain a suit for redemption, has not been challenged by the appellants in this second appeal. 15. On the other hand, the appellants have challenged the decree passed by the lower appellate court granting the relief of redemption on the basis of their contention that Ex.A1 was misinterpreted to be a mortgage by conditional sale and not an absolute sale with a stipulation for re-purchase. In this regard, learned counsel for the appellants argued that since the intention of the executor of Ex.A1-document was crystal clear that he wanted to convey the property absolutely to the first appellant/first defendant with a right to re-purchase the same within a period of five years, the same will not make the document nothing else than a sale deed or make it a Deed of Mortgage with conditional sale. 16. Per contra, it is argued on behalf of the first respondent that the above said contention of the appellants is untenable, since Ex.A1 document answers all the ingredients of a mortgage by conditional sale and hence the attempt made on behalf of the appellants to contend that Ex.A1 is not a deed of mortgage by conditional sale should be discountenanced. 17. Section 58 defines various kinds of mortgagors and 58(c) defines mortgage by conditional sale. For better appreciation Section 58(c) of the Transfer of Property Act, 1882 is extracted hereunder: "(c)Mortgage by conditional sale-Where, the mortgagor ostensibly sells the mortgaged property-on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale: PROVIDED that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale." The definition of sale found in section 54 of the Transfer of Property Act, 1882 does not contemplate a single document containing the transfer of ownership (sale of conveyance) and an agreement for re-conveyance of the said property on payment of the same amount within a stipulated time. Moreover, it is a matter of construction of document taking into account the various clauses embodied in the document to find out whether a document is a deed of mortgage by sale or a deed of absolute sale with an agreement for re-purchase. Suppose the document contains a stipulation that as and when the executant of the document repays the amount received from the person in whose favour the document is executed, such person should re-convey the property to the executant of the document, which will give a clear indication that the transaction was a loan transaction secured by mortgage and hence the deed is no doubt a mortgage by conditional sale. If the document under which the property ostensibly sold contains a stipulation that in case the seller of the document repays the amount stated as consideration in the document within a stipulated time, the buyer should re-convey the property, then also it will be obvious that the intention of the executant of the document is to create a security by way of mortgage. Even in cases wherein the stipulation is to the effect that if the vendor repays the amount collected as consideration in the document within a stipulated time the buyer shall re-convey the property and in case of failure to pay the amount within the stipulated time, the seller would lose his right of getting the property re-conveyed, we can come to the conclusion that the transaction is one of mortgage by conditional sale and not a sale with the right to re-purchase. In case, a stipulation is made in the document to the effect that the seller shall have a right to re-conveyance of the property to him, if he pays the amounts stipulated as consideration in the document together with an interest up to the date of such payment, that will also give a clear indication that the transaction is a loan transaction secured by a mortgage. There may be cases, in which, the parties may arrive at a figure to be the future market value of the property taking into account the escalation of the land price and such a stipulation of higher amount, shall have the effect of indicating that the document was not intended to be a security for the loan by way of mortgage. In case possession is delivered to the ostensible purchaser at the time of execution of the document in question, then it shall have an indication that the transaction was not intended to be as mortgage by conditional sale, but only a sale with an agreement for re-conveyance. It is because we can infer that the income derived from the property by the purchaser under the document in question will take care of the interest and apart from the usufructs, which may be even more than the interest payable for the amounts secured, no additional interest need be paid. It is because we can infer that the income derived from the property by the purchaser under the document in question will take care of the interest and apart from the usufructs, which may be even more than the interest payable for the amounts secured, no additional interest need be paid. Under such circumstances, if the clause for re-conveyance stipulates a higher amount than the amount quoted as consideration for the sale under the document in question, one can infer that it is a sale with an agreement for re-conveyance and not a mortgage with conditional sale. Even if the parties to the document in question agree for re-conveyance of the property to the seller in case of repayment of the consideration stipulated in the document within a particular time, the same will not be a mortgage by conditional sale, if the agreement for reconveyance is not incorporated in the very same document under which the property was ostensibly sold. From the above said discussions, it will be clear that when the agreement for re-conveyance is not incorporated in the very same document under which the property was ostensibly sold and such agreement is made separately, then the transaction shall be a sale with an agreement for re-conveyance and not a mortgage by conditional sale. On the other hand, if all the characteristics mentioned in section 58(c) are found in the document of sale under which property is ostensibly sold and the stipulation regarding re-conveyance is also found in the very same document, the same may or may not amount to a mortgage by conditional sale. 18. As indicated supra, it is a matter of construction of the document. If all the ingredients found in section 58(c) are present, then it shall be construed to be a document of mortgage by conditional sale, with the exception of few cases in which the stipulation of the consideration for re-conveyance itself will provide the ground for an inference that the transaction was not one of the loan secured by mortgage, but was one of absolute sale with a right to re-purchase within a stipulated time. Such cases shall be instances in which consideration for further reconveyance have been pragmatically assessed at the time of entering into the transaction. All the ingredients of mortgage by conditional sale found stipulated in section 58(c) are found in Ex.A1. Such cases shall be instances in which consideration for further reconveyance have been pragmatically assessed at the time of entering into the transaction. All the ingredients of mortgage by conditional sale found stipulated in section 58(c) are found in Ex.A1. Ex.A1 cannot come within the exempted minority to be taken out from the purview of section 58(c), because the very same amount, which was received by the seller under Ex.A1 has been quoted as the amount to be paid by him for getting the property re-conveyed. The same will show that Ex.A1 is nothing but a mortgage by conditional sale and it would not be correct to accept the said document to be a sale reserving a right for or with an agreement for re-conveyance. Therefore, the concurrent findings of the courts below that Ex.A1 is a Deed of Mortgage by conditional sale is neither infirm nor defective, much less perverse. The same does not deserve any interference in the second appeal. For all the reasons stated above, this court comes to the conclusion that the finding of the courts below that Ex.A1 is a Deed of Mortgage by conditional sale deserves to be confirmed and the first substantial question of law is answered accordingly. 19. The next contention raised on behalf of the appellants is that the suit for redemption is hopelessly barred by limitation and the lower appellate court has committed a grave error in holding that the suit for redemption is not barred by limitation, assuming that the limitation had started running not from the date of Ex.A1 but from the date of expiry of the period of five years stipulated therein for re-conveyance. In support of his contention, learned counsel for the appellant would submit that unless there is a clear restriction imposed on the mortgagor from redeeming the property for a particular period, in which case alone the limitation would start running from the date of expiry of the said period, the right of redemption shall accrue on the very date on which the mortgage is created and hence the limitation would start running from the date on which the mortgage deed is executed. 20. 20. In support of his contention, learned counsel for the appellant relied on the judgment of the Hon'ble Supreme Court in Sampuran Singh and Others vs. Niranjan Kaur (Smt) and Others reported in (1999) 2 SCC 679 and an observation made by the Hon'ble Supreme Court in Prabhakaran and others vs. M.Azhagiri Pillai (dead) by LRS. And others reported in (2006) 4 SCC 484 . 21. On the other hand, learned counsel for the first respondent made the following contentions:- "1) the principle "once a mortgage always a mortgage" embodies in itself the idea that in case of mortgages there will be no limitation for redemption and the mortgagor will lose the right of redemption only when the mortgage is foreclosed at the instance of the mortgagee or the mortgaged property is sold at the instance of the mortgagee in exercise of the rights conferred on the mortgagee. 2) when a time is stipulated for the mortgagor to pay back the amount and redeem the mortgage, the right to redeem should be construed to accrue only from the date of expiry of the said period and the limitation for filing the suit for redemption would start running only from the date of expiry of the said period stipulated in the mortgage deed." In support of his contention, the learned counsel for the first respondent has cited a judgment of Gwalior Bench of Madhya Pradesh High Court in Smt.Gulkandi and others vs. Harnarayan Phoolchand and others reported in AIR 1980 MADHYA PRADESH 111, a judgment of the Andhra Pradesh High Court in Motilal vs. V.Vasant and another reported in AIR 1956 Hyderabad 172 (AIR V 43 C 62 Oct.) and a judgment of the Hon'ble Supreme Court in Ganga Dhar v. Shankar Lal and others reported in AIR 1958 S.C. 770 . The learned Single Judge of the Gwalior Bench of Madhya Pradesh High Court and the learned single judge of the Andhra Pradesh High Court in the judgments cited by the learned counsel for the first respondent, have expressed the view that when the deed of mortgage with possession prescribed a period within which the mortgagor had to repay the amount, limitation would start running from the expiry of that period and not from the date of execution of the mortgage deed. But those views are against the latest judgments of the Supreme Court in Sampuran Singh and Others vs. Niranjan Kaur (Smt) and Others reported in (1999) 2 SCC 679 and Prabhakaran and others vs. M.Azhagiri Pillai (dead) by LRS. And others reported in (2006) 4 SCC 484 . Of course the Hon'ble Supreme Court in those two cases dealt with the question of fresh start of limitation on acknowledgment of liability under section 18 of the Limitation Act, 1963. The Hon'ble Supreme Court has held in categorical terms that in the absence of such acknowledgment, the period of limitation starts from the very first day of creation of a valid mortgage. In Sampuran Singh's case, the Hon'ble Supreme Court made the following observation: "5........ In this view of the matter, admittedly, the land in the suit was mortgaged with possession for Rs 53 in March 1893. Hence a valid mortgage came into existence on the very day of its execution." In view of this, the Hon'ble Supreme Court has held in categorical terms that period of limitation starts from the date of creation of a valid mortgage, unless there is any clause incorporated in the mortgage providing restriction on the right of redemption for a specified period. 22. In Prabhakaran and others vs. M.Azhagiri Pillai (dead) by LRS. And others reported in (2006) 4 SCC 484 , the Hon'ble Supreme Court while dealing with Article 148 of the Limitation Act, 1908 (old Act) and the corresponding provision in the new Act, namely Limitation Act, 1963 has made the following observations: "Article 148 of the Limitation Act, 1908 (referred to as ’old Act’) provided a limitation of 60 years for a suit against a mortgagee, to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (’new Act’ or ’Limitation Act’ for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that "at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished". This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner." From the same, it is quite obvious that in the absence of any clause in the document restricting and postponing the right of the mortgagor to redeem the property, limitation for filing a suit for redemption would start running from the very date on which the mortgage is created. The same also gains support from the judgment of a Larger Bench of the Supreme Court (3-Judge Bench) in Ganga Dhar v. Shankar Lal and others reported in AIR 1958 S.C. 770 relied on by the learned counsel for the first respondent himself. In fact, the said judgment does not lend any support to the submissions made by the learned counsel for the first respondent. On the other hand, it clearly supports the case of the appellants. The said judgment pronounced in 1958 by the larger bench of the Supreme Court still holds the field. As per the views of the Supreme Court, if there is any clog on the right of redemption by prescribing a shorter period for redemption than the one prescribed by the statute, then such a clause providing such clog has to be disregarded. As per the views of the Supreme Court, if there is any clog on the right of redemption by prescribing a shorter period for redemption than the one prescribed by the statute, then such a clause providing such clog has to be disregarded. It has also been held that in case a restriction not in perpetuity, but for a particular period is prescribed to protect the interest of the mortgagee in possession, such a restriction shall be valid and in cases of such restriction, the right to redeem shall accrue only on the expiry of the period of restriction imposed by the agreement of parties. In the case before the Supreme Court, an usufructuary mortgage was created with a stipulation that the mortgagor was not entitled to redeem the property for a period of 85 years and after the expiry of 85 years, he would redeem the mortgage within a period of six months. The Apex Court held that the restriction imposed on the right of redemption for a period of 85 years was not hit by the rule against clog on the equity of redemption, since the same was for a definite period and it was perfectly valid. On the other hand, the Supreme Court held the further condition to the effect that the mortgage should be redeemed within a period of six months after the expiry of 85 years and in case the mortgagor was not able to redeem it within the said period of six months thereafter neither the mortgagor nor his legal representatives would have any claim over the mortgaged property was a clog on the right of redemption contrary to the provisions in the law of limitation and hence ineffective and invalid. The following are also the further observations made by the Larger Bench of the Hon'ble Supreme Court in the said case:- "(10) The term providing that the right to redeem will arise after eightyfive years does not, of course, take away the mortgagor’s right to redeem and is not, therefore, in that sense, a clog on the equity of redemption. It does, however prevent accrual of the right to redeem for the period mentioned. Is it then, in so far as it prevents the right to redeem from accruing for a time, a clog ? It does, however prevent accrual of the right to redeem for the period mentioned. Is it then, in so far as it prevents the right to redeem from accruing for a time, a clog ? (11) As we have already said, the right to redeem does not arise till the principal money becomes due. When the principal sum is to become due must of course depend on the contract between the parties. In the present case the parties have agreed that the right to redeem will arise eightyfive years after the date of the mortgage, that is to say, the principal money will then become due. The appellant says that he should be relieved from this bargain that he has made. This is the contention that has to be examined. (12) The rule against clogs on the equity of redemption no doubt involves that the Courts have the power to relieve a party from his bar ’gain. If he has agreed to forfeit wholly his right to redeem in certain circumstances, that agreement will be avoided. But the Courts have gone beyond this. They have also relieved mortgagors from bargains whereby the right to redeem has not been taken away but restricted. The question is the term now under consideration such that a Court will exercise its power to grant relief against it ? That depends on the extent of this power. It is a power evolved in the early English Courts of Equity for a special reason. All through the ages the reason has remained constant and the Court’s power is therefore limited by that reason. The extent of this power has, therefore, to be ascertained by having regard to its origin. (15) The reason then justifying the Court’s power to relieve a mortgagor from the effects of his bargain is its want of conscience. Putting it in more familiar language the Court’s 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. (16) We then have to see if there was anything unconscionable in the agreement that the mortgage would not be redeemed for eighty five years. Is it oppressive ? Was the mortgagor oppressed ? Was he imposed upon ? If he was, then he may be entitled to relief. (16) We then have to see if there was anything unconscionable in the agreement that the mortgage would not be redeemed for eighty five years. Is it oppressive ? Was he forced to agree to it because of his difficulties ? Now this question is essentially one of fact and has to be decided on the circumstances of each case. It would be wholly unprofitable in enquiring into this question to examine the large number of reported cases on the subject, for each turns on its own facts. (17) First then, does the length of the term-and in this case it is long enough being eightyfive years-itself lead to the conclusion that it was an oppressive term ? In our view, it does not do so. It is not necessary for us to go so far as to say that the length of the term of the mortgage can never by itself show that the bargain was oppressive. ..." Ultimately the Apex Court came to the conclusion that right to redeem the mortgage accrued to the mortgagor therein only on the expiry of the period of 85 years and that the suit filed for redemption before the expiry of the said period was premature. In the said case, a clear embargo had been provided by the agreement of parties that the mortgagor would not redeem the mortgage for 85 years and only after the expiry of the said period, the right to redeem would accrue. That is the reason why the Hon'ble Supreme Court held that such a restriction which did not take away the right of redemption of mortgagor in entirety was to be given effect to, unless undue advantage was made in the bargain by the mortgagee and that when such a clause was valid, the suit filed by the mortgagor for redemption before the expiry of that period was premature. The Hon'ble Supreme Court in that case held that the subsequent clog prescribing a period of six months for redemption was ineffective. When the document prescribes a particular period within which the mortgagor has to repay the amount, the same cannot be construed as a restriction on the right of the mortgagor to redeem the mortgage at any time during the said period. When the document prescribes a particular period within which the mortgagor has to repay the amount, the same cannot be construed as a restriction on the right of the mortgagor to redeem the mortgage at any time during the said period. Unless there is a clear embargo/restriction for a limited period on the right of mortgagor to redeem the mortgage, the right to redeem the mortgage accrues on the very day on which the mortgage is created. In case of a restriction for a limited period, then the right to redeem will accrue only on the expiry of the said period. The limitation will start in the first case from the date of mortgage itself and in the latter case from the date of expiry of the period of restriction. 23. In the case on hand, Ex.A1 does not provide any restriction on the right of the mortgagor to redeem the mortgage on any day subsequent to the date of creation of mortgage. It simply states that the same shall be redeemed within five years. The further clause that in case of failure to pay the amount within the said period, the right to get back the property will be lost has to be disregarded, as it provides a clog on the equity of redemption and goes against the statutory provision regarding the law of limitation. For all the reasons stated above, this court comes to the conclusion that the right of redemption accrued on the very date of Ex.A1 itself. As per Article 61 of the Limitation Act, limitation is 30 years. The suit has been filed beyond 30 years. There is no plea or proof that subsequently there had been an acknowledgment of liability in terms of section 18. Hence this court comes to the conclusion that the suit filed after 30 years from the date of accrual of the right of redemption is clearly barred by limitation. The second substantial question of law is answered accordingly. In view of the finding on the second substantial question of law that the suit is barred by limitation, the second appeal succeeds. Accordingly, the second appeal is allowed and the decree passed by the lower appellate court is set aside. The suit shall stand dismissed as the same is barred by limitation. In view of the close relationship of the parties there shall be no order as to costs.