JUDGMENT Aravind Kumar, J. 1. This is a first defendant's appeal calling in question the legality of judgment and decree passed by Fast Track Court, KGF, in R.A. No. 255 of 2002, dated 9-4-2010, contending inter alia that Substantial Questions of Law formulated in the appeal memorandum would arise for consideration by this Court. Heard Sri P.S. Manjunath, learned Counsel appearing for appellant and Sri P. Raghavan, learned Counsel appearing for respondent 1. Respondents 2 and 4 to 9 are served and unrepresented. Respondents 3, 10 and 11 notice is not served and despite non-service of notice, this appeal is taken up for final disposal since the decree that has been passed against them is not questioned by them or in other words, it has been accepted by them. Respondents 15 to 18 have been transposed as appellants 2 to 5 vide order dated 17-3-2015. Respondents 12 to 14 were permitted to be deleted in view of memo filed by learned Counsel appearing for appellant. By consent of learned Advocates appearing for the parties matter is taken up for final disposal and also on the ground that records of Trial Court and Lower Appellate Court has been secured. 2. Having heard the learned Advocates appearing for parties, this Court is of the considered view that following substantial questions of law would arise for my consideration: (i) Whether in the facts and circumstances of the case proviso to Section 60 of Transfer of Property Act, 1882, is attracted and thereby right of mortgagor to seek for redemption of mortgage has stood extinguished? Whether by virtue of agreement of sale dated 22-10-1967 said to have been executed by mortgagor in favour of mortgagee, the mortgagee in possession or their successors would be entitled to raise a defence under Section 53-A of Transfer of Property Act, 1882, contending that they are in possession of property by virtue of part performance of said agreement of sale dated 22-10-1967 and in the facts and circumstances of present case whether defendants had proved execution of agreement of sale dated 22-10-1967 and as such entitled to defeat the right of mortgagor to seek for redemption? 3. The contextual facts giving raise for filing of second appeal are as under: Suit schedule property originally belong to one Sri M.P. Gururao. 3. The contextual facts giving raise for filing of second appeal are as under: Suit schedule property originally belong to one Sri M.P. Gururao. He having purchased the same under a registered sale deed dated 5-3-1962, in turn sold the said property to one Sri B.V. Achaiahshetty subject to reconveyance agreement dated 15-3-1962 by granting 5 years for getting registered sale deed executed. On death of Sri M.P. Gururao his wife Smt. Laxmi Bayamma by virtue of reconveyance deed paid the sale consideration amount to Sri B.V. Achaiahshetty and got executed a registered sale deed dated 11-5-1966 in her favour. Said Laxmi Bayamma along with her sons executed a registered mortgage deed dated 17-9-1966 in favour of Smt. Gowramma for securing debt of Rs. 4,000/- borrowed by her redeemable within 4 years. Said Smt. Laxmi Bayamma expired and first son of Smt. Laxmi Bayamma by name Sri M. Raghavendra Rao, who has also expired and as such, right, title, interest and possession of suit schedule property devolved exclusively on the legal heirs of Smt. Laxmi Bayamma. Legal heirs of Smt. Laxmi Bayamma and Sri M.P. Gururao executed an agreement of sale in favour of plaintiff agreeing to sell the suit schedule property for a consideration of Rs. 1,35,000/- and received advance amount of Rs. 10,000/-. On demand made by plaintiff on behalf of legal heirs of mortgagors to defendants 1 and 2 who were representing as legal heirs of deceased mortgagee (Smt. Gowramma) by issuance of legal notice dated 17-10-1994 though duly served was not replied. However, third defendant started laying claim over suit schedule property and as such, legal notice was got issued on 28-3-1995 by plaintiff to third defendant which was duly served on him. Subsequently, the legal heirs of mortgagors namely Sri M.P. Gururao's legal heirs and Smt. Laxmi Bayamma are said to have sold the property to plaintiff under a registered sale deed dated 31-8-1995 subject to mortgage along with right of equity of redemption of mortgage deed dated 17-9-1966. Subsequently, the legal heirs of mortgagors namely Sri M.P. Gururao's legal heirs and Smt. Laxmi Bayamma are said to have sold the property to plaintiff under a registered sale deed dated 31-8-1995 subject to mortgage along with right of equity of redemption of mortgage deed dated 17-9-1966. As such, plaintiff claimed to be the owner with legal possession of suit schedule property and also having stepped into the shoes of his vendors (mortgagors) and claiming that he is entitled to seek for redemption of mortgage dated 17-9-1966, filed a suit prior to which he had got issued a legal notice on 13-10-1995, which was belatedly replied by defendants 1 to 3 on 29-11-1995 denying the claim of plaintiff. On account of non-compliance of demand made in the legal notice, plaintiff instituted suit for redemption of mortgage dated 17-9-1966. 4. On service of suit summons defendants 1 to 8 appeared through their learned Advocate and defendants 1 and 3 filed written statement. Defendants 2, 4 and 5 adopted the same. Defendants 1 and 3 have also filed additional written statement. 3rd defendant has also filed written statement along with counter-claim and has paid Court fee for the relief claimed by them for specific performance of agreement of sale dated 22-10-1967. Defendants 6 to 8 have not filed written statement and have not appeared. Defendants 12 to 20 though appeared, did not file any written statement. Said defendants denied the averments made in the plaint. It was contended that suit was barred by limitation and they further contended that Smt. Gowramma had taken the entire premise on lease from Smt. Laxmi Bayamma on a monthly rent of Rs. 50/- and had continued as tenant since 1954 and on 15-8-1966 Smt. Laxmi Bayamma had executed a mortgage deed in favour of said Smt. Gowramma in respect of suit schedule property and specific plea was raised on 22-5-1967. Smt. Laxmi Bayamma and her sons have entered into an agreement to sell the suit schedule property in favour of Smt. Gowramma for Rs. 7,500/- by treating the amount of mortgage as part and parcel of sale consideration amount and also received Rs. 1,000/- and Rs. Smt. Laxmi Bayamma and her sons have entered into an agreement to sell the suit schedule property in favour of Smt. Gowramma for Rs. 7,500/- by treating the amount of mortgage as part and parcel of sale consideration amount and also received Rs. 1,000/- and Rs. 500/- on different occasions, which transaction reveals about the right to claim specific performance of agreement in respect of suit schedule property and as such, they are ready and willing to pay balance consideration amount and hence, they asserted their right over suit schedule property and prayed for their claim for specific performance of agreement of sale dated 22-10-1967 being decreed. It was also contended that legal heirs of mortgagee Smt. Gowramma i.e. deceased Gowramma had spent more than Rs. 50,000/- towards repair, maintenance, alteration and construction on the suit schedule property. The very derivation of title of plaintiff also came to be denied and they also set up a plea of having been in settled possession and as such, it was contended that it attracts Section 53-A of Transfer of Property Act, 1882 (hereinafter referred to as 'the Act' for short) and are in possession of suit schedule property by virtue of part performance of agreement of sale dated 22-10-1967. On these grounds, amongst other as contended in the written statement they sought for dismissal of suit. 5. On the basis of pleadings of parties, Trial Court framed following issues for its adjudication: ISSUES "(i) Whether the plaintiff proves that he is the absolute owner of the suit schedule property? (ii) Whether plaintiff proves that he is entitled for the redemption of mortgage deed dated 17-9-1966? (iii) Whether plaintiff proves that defendants 1 to 8 are liable to redeem the mortgage deed dated 17-9-1966? (iv) Whether the defendants 1 to 5 prove that on 22-10-1967 Lakshmibayamma and her sons have executed agreement of sale in respect of the schedule property in their favour? (v) Whether defendant proves that this Court has not jurisdiction to try the present suit? (vi) Whether plaintiff proves that he is entitled for separate possession of schedule property? (vii) Whether plaintiff is entitled for the relief claimed in the suit? (viii) What order or decree? (v) Whether defendant proves that this Court has not jurisdiction to try the present suit? (vi) Whether plaintiff proves that he is entitled for separate possession of schedule property? (vii) Whether plaintiff is entitled for the relief claimed in the suit? (viii) What order or decree? ADDITIONAL ISSUES (i) Whether the plaintiff proves that defendant 1 has unauthorisedly and without consent of the plaintiff altered the eastern portion of the schedule property and damaged the building during the pendency of the instant suit? (ii) Whether the suit is barred by limitation? (iii) Whether the suit is undervalued as contended in para 26 of the written statement? (iv) Whether the counter-claim is barred by limitation? (v) Whether the suit is not maintainable without seeking declaration of title over the suit property? (vi) Whether the defendants 1 to 8 further prove alleged tenancy prior to mortgage of suit schedule?" 6. Plaintiff got himself examined as P.W. 1 and also examined one of the witnesses as P.W. 2 and in all he got marked 5 documents as Exs. P. 1 to P. 5. First defendant got himself examined as D.W. 1 and also examined one witness as D.W. 2 and in all got marked 12 documents as Exs. D. 1 to D. 12. On appreciation of entire evidence both oral and documentary, Trial Court decreed the suit and directed defendants 1 to 8 to redeem the mortgage deed dated 17-9-1966 by executing cancellation deed coupled with possession of suit schedule property being delivered within one month from the date of judgment and decree. Plaintiff was also granted liberty to get the decree executed as per law in the event of defendants 1 to 8 not executing cancellation deed. Counter-claim of defendants 1 to 8 came to be dismissed as barred by law. 7. Being aggrieved by said judgment and decree passed by Trial Court defendants 1 to 8 filed an appeal in R.A. No. 255 of 2002 before Fast Track Court, KGF. Lower Appellate Court after securing the records from Trial Court and after considering the arguments advanced by respective learned Advocates appearing for parties formulated following points for its consideration: (i) Whether the judgment and decree under appeal is perverse, capricious and arbitrary and it calls for any interference by this Court? (ii) What order? 8. Lower Appellate Court after securing the records from Trial Court and after considering the arguments advanced by respective learned Advocates appearing for parties formulated following points for its consideration: (i) Whether the judgment and decree under appeal is perverse, capricious and arbitrary and it calls for any interference by this Court? (ii) What order? 8. Lower Appellate Court dismissed the appeal and affirmed the judgment and decree passed by Trial Court on re-appreciation of evidence by judgment and decree dated 9-4-2010 passed in R.A. No. 255 of 2002. It is this judgment and decree passed by lower Appellate Court which is under challenge in this second appeal. 9. It is the contention of Sri P.S. Manjunath, learned Counsel appearing for appellant that by virtue of agreement of sale dated 22-10-1967 executed by mortgagor in favour of mortgagee, right of mortgagor or their successors in interest to get the mortgage redeemed has stood extinguished and proviso to Section 60 of the Act is clearly attracted to facts on hand and there has been non-consideration of this vital aspect by Courts below which has resulted in erroneous judgment being passed by both Courts. He would elaborate his submission by contending that under agreement of sale dated 22-10-1967 possession of suit property had been delivered to mortgagee and it amounts to 'act of parties' and thereby right of mortgagor under mortgage deed dated 17-9-1966 to seek for redemption stood extinguished. He would further elaborate his submission by contending that under said agreement of sale on 22-10-1967 possession having been delivered, defendants would also be entitled to raise a plea by way of defence that they are in possession of suit property in part performance of agreement and as such, they would be entitled to the relief of being protected from being dispossessed and such defence of part-performance under Section 53-A of Transfer of Property Act is available to defendants and this aspect has not been considered in proper perspective by Courts below. Hence, he contends that substantial questions of law formulated be answered in favour of the appellant. Hence, he contends that substantial questions of law formulated be answered in favour of the appellant. In support of his submission he has relied upon the following judgments:- (i) Polammarasetti Varana Venka Satyanarayana vs. Suddha Apparao Naidu (dead) and Others, AIR 1997 SC 2127 : (1997) 9 SCC 244 (ii) Shrimant Shamrao Suryavanshi and Another vs. Pralhad Bhairoba Suryanvanshi (dead) by L.Rs and Others, AIR 2002 SC 960 : (2002) 3 SCC 676 (iii) Mahadeva and Others vs. Tanabai, AIR 2004 SC 3854 : (2004) 5 SCC 88 : 2004 AIR SCW 3927 (iv) Hamzabi and Others vs. Syed Karimuddin and Others, (2001) 1 SCC 414 (v) Kallingappa since deceased and Represented by L.Rs vs. Smt. Gowramma and Others, ILR 2013 Kar. 4812 10. Per contra, Sri P. Raghavan, learned Counsel appearing for first respondent would support the judgment and decree passed by Courts below and would contend that proviso to Section 60 of the Act is not attracted in the facts and circumstances of the case, inasmuch as, alleged agreement of sale dated 22-10-1967 propounded by defendants 1 to 8 have not seen the light of day till date and as such, protection available to defendants to contend that there is a clog in the mortgage by the "act of parties" cannot be accepted and as such, he prays for substantial questions of law formulated being answered in favour of plaintiff. FINDING RECORDED BY TRIAL COURT 11. Perusal of judgment and decree passed by Trial Court would clearly indicate that it has arrived at a conclusion that defendants 1 to 8 having contended that there was an agreement of sale dated 22-10-1967 executed by Smt. Laxmi Bayamma, Sri M.P. Krishna Murthy and Sri M.P. Raghavendra Rao, they did not place the said agreement of sale in question for inspection or scrutiny of Court to decide the matter effectively vide paragraph 16 of judgment and decree. In the background of defendants 1 to 8 not placing said vital document relied upon by them to stave off the claim put up to reject the claim of plaintiff for redemption of mortgage as well as to sustain their defence for protection of possession by virtue of Section 53-A of Transfer of Property Act, Trial Court held that in the absence of said document being placed on record, plea of defendants cannot be entertained. On these amongst other grounds as set out in the judgment and decree passed by Trial Court, suit came to be decreed. It also came to be held by Trial Court that plaintiff being successor-in-interest of mortgagor namely he having purchased the suit schedule property from legal heirs of deceased mortgagor, he would be entitled to seek for redemption of mortgage since he has stepped into the shoes of mortgagor. FINDING RECORDED BY THE LOWER APPELLATE COURT 12. Lower Appellate Court noticed that finding recorded by Trial Court with regard to non-production of agreement of sale dated 22-10-1967 by defendants was a justifiable ground to dismiss the appeal filed by them and to affirm the judgment and decree passed by Trial Court. RE: SUBSTANTIAL QUESTIONS OF LAW 13. In order to appreciate the contentions raised by Sri P.S. Manjunath, learned Counsel appearing for appellant, it would be necessary to extract Section 60 of the Transfer of Property Act, which has bearing and impact on the contention raised by him and to adjudicate the substantial questions of law formulated hereinabove. Section 60 of Transfer of Property Act reads thus: "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 property which are in the possession or power of the mortgagee. (b) Where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor. (c) At the cost of the mortgagor either to retransfer 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 ....... suit for redemption. Nothing in this ....... of such money. Nothing in this section ...... the share of a mortgagor." 14. The right ....... suit for redemption. Nothing in this ....... of such money. Nothing in this section ...... the share of a mortgagor." 14. Sri P.S. Manjunath, would fairly submit that there cannot be any quarrel to the proposition of "Once a mortgage always a mortgage". However, at the cost of repetition his plea on behalf of appellants/defendants, who are successors in interest of mortgagee requires to be noticed namely by virtue of proviso to Section 60 of the Act mortgagee i.e., defendants can contend that right of redemption available to mortgagor has stood extinguished under two contingencies: (a) By act of parties. (b) By decree of a Court. 15. There cannot be any dispute in the present facts and circumstances of case that later portion of proviso namely 'by decree of Court' is not attracted and as such, substantial questions of law formulated hereinabove is not required to be dealt from said angle. 16. In order to substantiate his contention with regard to "act of parties" Sri P.S. Manjunath, learned Counsel has contended that Trial Court has recorded a finding both on issue 4 and on additional issue 6 that there was an agreement of sale executed by Smt. Laxmi Bayamma mortgagor and her sons in favour of original mortgagee Smt. Gowramma and this act of execution of agreement of sale dated 22-10-1967 by mortgagor in favour of mortgagee, would amount to "act of parties" and thereby proviso to Section 60 gets attracted and consequently right of mortgagor to redeem the mortgage stood extinguished or right conferred on the mortgagor to seek for redemption of mortgage had stood extinguished. 17. In support of his contention he has relied upon the judgment of the Hon'ble Apex Court in the case of Hamzabi and has drawn the attention of this Court to paragraph 7, which reads as under: "7. This Court in Narandas Karsondas vs. S.A. Kamtam, AIR 1977 SC 774 was not called upon to decide whether the equity of redemption could also be extinguished by part-performance of a contract of sale under Section 53-A. When a mortgagor/vendee agrees to sell the mortgaged property to the mortgagee/putative vendee in possession, the mortgagee's status is subsumed or merged in his rights as a putative vendee under Section 53-A against the transferor, provided of course the preconditions for the application of Section 53-A are fulfilled. Given the mandatory language of Section 53-A, it must be held that in such a situation the equity of redemption in the mortgagor/vendee is lost to the extent that the mortgagor cannot reclaim possession of the mortgaged property. To hold to the contrary, would not only defeat the mandate of Section 53-A but would result in an anomalous situation. An owner who may not have mortgaged his property cannot be in a worse position vis-a-vis the vendee than an owner who may have mortgaged the subject-matter of sale to the vendee. The only right left with the owner in both cases is to sue for the completion of the contract." 18. As to when a clog of equity on redemption would surface and when said doctrine would apply was the subject-matter for consideration by Hon'ble Apex Court in the case of Pomal Kanji Govindji and Others vs. Vrajlal Karsandas Purohit and Others, AIR 1989 SC 436 : (1989) 1 SCC 458 . After examining applicability of proviso to Section 60 of Transfer of Property Act, it has been held that doctrine of "clog on equity of redemption" is a rule of justice and good conscience and must be adopted in each case to the reality of situation and individuality of transaction. It has been held by Hon'ble Apex Court as under: "21. 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 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. 22. A very large number of decisions have been cited at the Bar. Sri T.U. Mehta, Sri Rajinder Sachar, Sri B.K. Mehta and Sri Dholakia very ably and painstakingly argued this case in respect of their contentions. 23. Our attention was drawn to the observations of the Allahabad High Court in Chhedi Lal vs. Babu Nandan, AIR 1944 All. 22. A very large number of decisions have been cited at the Bar. Sri T.U. Mehta, Sri Rajinder Sachar, Sri B.K. Mehta and Sri Dholakia very ably and painstakingly argued this case in respect of their contentions. 23. Our attention was drawn to the observations of the Allahabad High Court in Chhedi Lal vs. Babu Nandan, AIR 1944 All. 204, where it was held that the provision inserted to prevent redemption on payment or performance of the debt or obligation for which security was given, was a clog on equity of redemption. Condition in mortgage was in that case that if mortgagee constructed new building by demolition of mortgaged property which was kachcha structure, mortgagor would pay cost of construction at the time of redemption. Stipulation in circumstances of the case, it was held, did not amount to clog on equity of redemption. It was argued before us by the mortgagees that the provision for the payment towards cost and expenses of repairs and construction did not amount to a clog on the equity of redemption because the repairs and construction were to be effectuated to keep the property in good condition. In the aforesaid decision Verma, J., at page 207 of the report observed that in the case before the Court it was not pleaded that any pressure and undue influence had been exercised upon the mortgagors. Verma, J. referred to the observations of the Viscount Haldane L.C. in G. and C. Kreylinger vs. Neic Patagonia Meat and Cold Storage Company, 1914 AC 25 and Lindley M.R. in Santley vs. Wilde, (1899) 2 Ch 474. Sir Tej Bahadur Sapru argued before Verma, J. that it is not his contention that the mortgagee in this case tried to gain a collateral advantage. His argument was that on onerous term has been incorporated in the deed which placed such a burden on the mortgagor as to make it impossible for him to redeem. There is a freedom of contract between the mortgagor and the mortgagee as observed by Verma, J. at page 207 of the report. We must, however, observe that we live in a changed time. Freedom of contract is permissible provided it does not lead to taking advantage of the oppressed or depressed people. The law must transform itself to the social awareness. We must, however, observe that we live in a changed time. Freedom of contract is permissible provided it does not lead to taking advantage of the oppressed or depressed people. The law must transform itself to the social awareness. Poverty should not be unduly permitted to curtail one's right to borrow money on the ground of justice, equity and good conscience on just terms. If it does, it is bad: whether it does or does not, must, however, depend upon the facts and the circumstances of each case." 19. It came to be further held in the said judgment by the Hon'ble Apex Court that it is a right of mortgagor to seek redemption, by reason of the very nature of mortgage and to get back the subject of mortgage and to hold and enjoy as he was entitled to enjoy it before the mortgage and if he is prevented from doing so, it amounts to preventing him from redeeming the mortgage and 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 been always termed as a clog and such a clog is inequitable. It came to be held by the Hon'ble Apex Court in Pomal Kanji Govindji's case as under: "26. 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 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 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 a 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 for any other sum, the obligations of the mortgagee to construct or repair or maintain the mortgaged property in cases of usufructuary mortgage, to manage as a matter of prudent management, these factors must be correlated to each other and viewed in a comprehensive conspectus in the background of the facts and the circumstances of each case, to determine whether these are clogs on equity of redemption." 20. Hon'ble Apex Court in Hamzabi's case which has been relied upon by Sri P.S. Manjunath, has observed that Section 60 of the Act gives a mortgagor right to redeem the property at any time after the principal money has become due by tendering the mortgage money and claim possession of property from the mortgagee and the only limit to his right to claim redemption is contained in proviso to Section 60 which is already extracted hereinabove and having noticed its earlier judgment in the case of Narandas Karsondas vs. S.A. Kamtam and Another, AIR 1977 SC 774 : (1977) 3 SCC 247 , which was to the effect that contract for sale by itself does not create any interest in, or charge on, the property which is expressly declared in Section 54 of Transfer of Property Act and personal obligation created by a contract for sale is recognized in Section 3 of Specific Relief Act, 1963 and in Section 91 of the Indian Trusts Act, 1882. It has been further held as under: "34. It has been further held as under: "34. The right of redemption which is embodied in Section 60 of the Transfer of Property Act is available to the mortgagor unless it has been extinguished by the act of parties. The combined effect of Section 54of the Transfer of Property Act and Section 17 of the Indian Registration Act, 1908, is that a contract for sale in respect of immovable property of the value of more than one hundred rupees without registration cannot extinguish the equity of redemption. In India it is only on execution of the conveyance and registration of transfer of the mortgagor's interest by registered instrument that the mortgagor's right of redemption will be extinguished. The conferment of power to sell without intervention of the Court in a mortgage deed by itself will not deprive the mortgagor of his right to redemption. The extinction of the right of redemption has to be subsequent to the deed conferring such power. The right of redemption is not extinguished at the expiry of the period. The equity of redemption is not extinguished by mere contract for sale." Above referred decision came to be distinguished in Hamzabi's case by Hon'ble Apex Court on the ground that their lordships in Narandas Karsondas case had not been called upon to decide whether equity of redemption could also be extinguished by part performance of a contract of sale under Section 53-A of Transfer of Property Act, 1882. It is in this background, Hon'ble Apex Court in Hamzabi's case referred to herein supra which has been very heavily relied upon by Sri P.S. Manjunath held that mandatory language of Section 53-A of the Act must be held that in such a situation the equity of redemption in the mortgagor/vendor is lost to the extent that mortgagor cannot reclaim possession of the mortgaged property or in other words, it has been held that it would defeat the very mandate of Section 53-A as it would result in anomalous situation. There cannot be any dispute to the proposition that mortgagor's right to claim redemption would be lost in the event of proviso to Section 60 of Transfer of Property Act, 1882, is attracted. There cannot be any dispute to the proposition that mortgagor's right to claim redemption would be lost in the event of proviso to Section 60 of Transfer of Property Act, 1882, is attracted. However, in the facts and circumstances of each case it will have to be examined as to whether such clog on redemption of mortgage is created by operation of law and thereby the right of mortgagor to claim redemption has been lost. 21. In Hamzabi's case, Hon'ble Apex Court noticed that there was no dispute with regard to agreement of sale dated 8-7-1953 which was propounded by mortgagees in possession to stave off the claim of mortgager's right to seek for redemption and in that background it came to be held by the Hon'ble Apex Court to the following effect: "21. In the present case, there is no dispute that the agreement of sale dated 8-7-1953 was a concluded contract. Yarkhan, the actual mortgagee and putative vendee had acted in terms of the agreement for sale dated 8-7-1953. The reason given by the Assistant Judge for holding that Yarkhan was not ready and willing to perform his part of the contract of sale was that in terms of the agreement dated 8-7-1953, the sale was to be completed by 15-7-1953 and that there was no evidence that Yarkhan had called upon Mohd. Hussain to execute the sale deed on that date. This inference of lack of readiness and willingness assumes that the time mentioned in the contract was of the essence of the contract. There is no evidence in support of this. On the other hand, the agreement does not state that if the registration were not effected on 15-7-1953, there would be no sale. The mentioning of the date appears to be a term in favour of the vendee casting a duty on the vendor to complete the vendee's title within the time specified. The term cannot be construed against the vendee to limit his right to have the sale completed on a subsequent date." 22. The mentioning of the date appears to be a term in favour of the vendee casting a duty on the vendor to complete the vendee's title within the time specified. The term cannot be construed against the vendee to limit his right to have the sale completed on a subsequent date." 22. Yet another factor which swayed in the mind of Hon'ble Apex Court to accept the plea of the mortgagee was to the effect that two legal heirs of mortgagor had in pursuance to said agreement of sale dated 8-7-1953 had also executed sale deed in favour of Mohammad Yarkhan the actual mortgagee to hold proviso to Section 60 of Transfer of Property Act, 1882, is attracted. Whereas in the instant case the very execution of agreement of sale came to be denied by successors of mortgagors and successors of mortgagee did not prove the execution of sale agreement dated 22-10-1967 by producing said documents. In that view of the matter of Hamzabi's case relied upon by learned Counsel appearing for appellant in this case would not come to the rescue of appellants. 23. Now turning my attention to the facts on hand it would indicate that mortgagees in possession of suit schedule property namely defendants 1 to 8 had set up a plea in the written statement that mortgagor as well as her two sons had executed an agreement of sale dated 22-10-1967 and by virtue of said agreement they are in possession of suit schedule property. Sri P.S. Manjunath, learned Counsel has very heavily relied upon the finding recorded by Trial Court on issue 4 and additional issue 4 to contend that there is a categorical finding recorded by the Trial Court with regard to existence of agreement of sale dated 22-10-1967 executed in favour of Smt. Gowramma (mortgagee) by Smt. Laxmi Bayamma and her son Sri M.P. Gururao (mortgagor) to contend that it amounts to "act of parties" and as such, burden was not on the defendants to prove anything further. He has also drawn the attention of the Court to legal notice issued by mortgagees to the mortgagors at an undisputed point of time namely 17-7-1971 which came to be marked as Exhibit D. 1(a) to contend that plea with regard to agreement of sale had been raised at the first instance and same would indicate at paragraph 2 of said notice, a plea has been raised with regard to agreement of sale and this fact has not been disputed by plaintiffs or their vendors. Contents of legal notice, Ex. D. 1(a) reads as under: "2. Thereafter on 22-10-1967 you entered into agreement with my client by an agreement of sale stipulating that you would purchase the said properties for a sum of Rs. 7,500/-. On that day you received Rs. 1,000/- from my client and agreed to execute a Registered sale deed within the December 1967 by receiving the balance of Rs. 2,500/-." 24. It is this plea which the defendants 1 to 8 intends to rely upon very heavily to contend that proviso to Section 60 of the Act would be attracted since it amounts to "act of the parties" as indicated in proviso to Section 60 of Transfer of Property Act, 1882. Clog on redemption has been explained in Mulla's Transfer of Property Act, 7th Edition, Page 401, wherein it has been held that mortgage being security for the debt, the right of redemption continues although the mortgagor fails to pay the debt at due date. It has also been held any provision inserted to prevent, evade or hamper redemption is void. This is also implied in the maxim "once a mortgage always a mortgage" as noticed by Hon'ble Apex Court in Pomal Kanji Govindji's case. The doctrine of clog on equity of redemption is a rule of justice, equity and good conscience. It must be adopted to rely on each case and individuality of persons. In other words it depends upon the plea put forward in the facts and circumstances of each case and there cannot be any straight jacket formula to contend that there is clog on equity of redemption or such clog has not been removed by virtue of the act of parties and as such right of redemption claimed by mortgagor has stood extinguished. In other words a person who seeks to put forward such a plea has to place impeccable evidence and demonstrate that there has been such act on the part of parties by virtue of which mortgagor's right to seek redemption has stood extinguished. 25. In this background when the facts on hand are examined it would clearly indicate that mortgagee way back in the year 1971 by her notice dated 17-7-1971 Exhibit D. 1(a) had set up a plea of the mortgagor's right to claim redemption has stood extinguished by virtue of agreement of sale executed by mortgagors on 22-10-1967. Thus, the mortgagees as well as their successors-in-interest namely the defendants knew from day one burden is on them to prove the fact that there has been an agreement of sale in their favour. Having raised such a plea they did not prove the execution of agreement of sale dated 22-10-1967 to defeat the right of mortgagors to seek for redemption or to prove such right has stood extinguished. When there is a specific denial with regard to execution of such an agreement by mortgagors and their successors burden was on defendants 1 to 8 to prove this fact and also prove the terms agreed upon between parties under such agreement. Trial Court has noticed that in the reply given by plaintiff's successors namely mortgagors as per Exhibit D. 1, it has been admitted by them regarding execution of agreement of sale and hence inference has to be drawn that there is an agreement of sale and thereby the mortgagor's right to such redemption of mortgage has stood extinguished cannot be accepted for reasons more than one. Firstly, mortgagees (defendants 1 to 8) did not produce the said agreement of sale dated 22-10-1967. Secondly, D.W. 1 has admitted in his evidence that said document is lost. Thirdly, plaintiffs (successors-in-interest of mortgagor) has denied execution of said agreement of sale. Lastly, defendants have failed to prove that they took possession of suit schedule property under said agreement of sale. In this background it has to be held that judgments relied upon by learned Counsel for appellants would not come to the rescue of appellants. 26. Thirdly, plaintiffs (successors-in-interest of mortgagor) has denied execution of said agreement of sale. Lastly, defendants have failed to prove that they took possession of suit schedule property under said agreement of sale. In this background it has to be held that judgments relied upon by learned Counsel for appellants would not come to the rescue of appellants. 26. Yet another factor which requires to be noticed is that the appellants in the instant case have raised a plea of said agreement of sale dated 22-10-1967 having been lost and has attempted to produce the same by contending that he intends to file an application for production of additional document by invoking Order 41, Rule 27 of Civil Procedure Code, 1908 in this appeal. Grounds urged in the appeal memorandum would only indicate such plea has been raised at more than one place. However, neither such an application came to be filed nor agreement of sale dated 22-10-1967 came to be produced to accept or to consider the plea of defendants raised in that regard. Hence, in the facts and circumstances of present case the only irresistible conclusion which requires to be arrived at is that defendants 1 to 8 have utterly failed to demonstrate that by virtue of agreement of sale having been entered into by parties on 22-10-1967 proviso to Section 60 of Transfer of Property Act, 1882, is attracted so as to disentitle the mortgagors or their successors-in-interest to seek for redemption. In that view of the matter substantial question of law formulated hereinabove deserves to be answered by holding that appellants have failed to prove that proviso to Section 60 of Transfer of Property Act, 1882, is attracted in the facts of present case. 27. When defendants 1 to 8 have utterly failed to demonstrate that consideration has flown under the alleged agreement of sale dated 22-10-1967 (which has not seen the light of the day) from the mortgagor to mortgagee and as such there being no part performance of agreement of sale and said plea cannot be considered for the simple reason that defendants having raised such a plea did not produce said document and there is no other contra evidence available on record other than admission of D.W. 2 who is a witness who was examined on behalf of defendant 1 and he being a interested witness, his evidence cannot be eschewed. Thus, defendants 1 to 8 have failed to prove execution of agreement of sale on 22-10-1967, contention of defendants 1 to 8 that consideration had flown from the mortgagor to mortgagee or any additional sum had been paid under agreement of sale dated 22-10-1967 cannot be accepted. In that view of the matter second contention raised by Sri P.S. Manjunath, learned Counsel for appellants also cannot be accepted. In that view of the matter, I proceed to pass the following: ORDER (i) Appeal is hereby dismissed by answering the substantial question of law in favour of respondents/plaintiffs and against appellants/defendants. (ii) Judgment and decree passed by Presiding Officer, Fast Track Court, KGF, in R.A. No. 255 of 2002, dated 9-4-2010 affirming the judgment and decree passed by II Additional Civil Judge (Junior Division), KGF in O.S. No. 424 of 1995, dated 11-10-2002, is hereby affirmed. (iii) No order as to costs. Appeal Dismissed.