Doctrine of Clog and Fetters

Doctrine of clog and fetters
GAUTAM JAYASURYA
ROLL NO: 339
GROUP IX
What are clogs on redemption?
Objective: To do away with any undue advantage by

creditor.
Any stipulation forming a part of the mortgage
transaction and inconsistent with this position is a
clog on redemption. Any condition which makes
redemption difficult to enforce.
Doesn’t apply where they subsequently vary the
terms upon which the mortgage may be redeemed.
E.g. An arrangement after the mortgage execution,
whereby mortgage money was paid off.
Let’s reason out !
 A mortgage is the security for the repayment of the debt, kept till
the loan is paid back. Entitled to get property free from every
kind of disadvantage and encumbrance.
 Right to redeem continues till: (No sale until)
1. Debt is paid back or
2. Court order to sell o forfeit it
 Contracts or part of contract that are repugnant to the mortgagor
‘s contractual or equitable right to redeem cannot be enforced.
 Principle held in Murarilal v. Devkaran AIR 1965 SC 225 – A
clog offends the maxim “Once a mortgage always a mortgage”.
15 years limit for the right- SC held it to be an unreasonable
restriction.
Conditions of a Clog to redemption
Period of redemption
Clauses in mortgage
Obligation of parties
Circumstances under which mortgage was created.
Economic and financial condition of the mortgagor
Relationship between mortgagor and mortgagee.
Economic and social conditions of a particular country
Customs
Contemporaneous documents
The effect of clog
 Purohit K Govind Ji v. Vjraj Lal K Purohit AIR 1989 SC 36 -Long term as

a period for redemption is not by itself a clog on equity. Clauses obliging
1. Payment of interest at the time of ultimate reduction imposing a lender
on the mortgagor to redeem.
2. Permitting construction and reconstruction of the building and imposing
to pay for the same.
3. Once redeemed, any interest created by the mortgagee must disappear.
 Gulab Chand v. Saraswati Devi AIR 1977 Sc 242 - Clause 9 of the deed
(deprived mortgagor of his rights even while the mortgage was
subsisting) held to be a clog on redemption.
 Banwarilal v. Puran Chand AIR 1985 P&H 189-One year time limit.
 A civil suit for a grant of declaration that condition to mortgage is a clog
cannot be barred by Article 61(a) of the Limitation Act, 1963.
Long term redemption
 Generally, time is not a factor as long the deed protects the right of the
mortgagee.
 Fateh Mohd. V. Ram Dayal 2 Luck 588 – 200 years limit-Length found
oppressive-redemption is granted.
 Massa Singh v. Gopal Singh AIR 1983 P & H 437 – Proof: Mortgagee
taking advantage of nay difficulty or embarrassment in creating
mortgage.
 Suit for foreclosure: A condition converting mortgage into sale is
invalid. But under section 67 of the TOPA, 1882 grants a right to the
mortgagee to obtain a decree which allows the property to be sold. Not
to applicable on usufructuary mortgagee.
A clog on equity
 Changing circumstances of inflation, increase in real estate prices,
population explosion and consciousness: Factors which create a
presumption.
 Restraint on alienation: Mortgagor cannot alienated the property even for
paying off the mortgage. Raising a loan on the security of the mortgaged
property is inequitable and incapable of enforcement.
 Collateral benefit: It is not valid if is (Kreglinger’s case)
1. Unfair or unconscionable
2. A clog to equity of redemption
3. Repugnant to contractual right to redeem
 Bradley’s case: Sharer in the company-promising the broker, sale of
company’s tea as the mortgage in turn for a loan-mortgage was repaid-
breach of agreement-House of lords –not binding as being a clog on the
equity of redemption.
 Restoration of property, stipulation in favour of mortgagee comes to an end
on payment of debts, coll. benefit need not affect the mort. Property.
Points of clashes
Right to redeem and equity of redemption

Delay in payment is not a bar to redeem the
property.
No legal objection to mortgagee’s demand for the
lease of the security.
Mortgagee entitled to sell for the realisation of the
debt provided a decree is obtained.
Conclusion
Mortgage is an exception to the maxim: “Agreement

of the parties override the law”
 Any collateral advantage out side the contract is not
allowed
 “Once a mortgage , always a mortgage and nothing but a
mortgage”
 Co existence of right of foreclosure and right to redeem

Doctrine of Clog and Fetters

Uploaded by

Copyright:

Available Formats

Doctrine of Clog and Fetters

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Doctrine of Clog and Fetters

Uploaded by

Copyright:

Available Formats

What are clogs on redemption?

What are the conditions for a clause to be considered a clog on redemption?

Doctrine of clog and fetters

Objective: To do away with any undue advantage by

 Purohit K Govind Ji v. Vjraj Lal K Purohit AIR 1989 SC 36 -Long term as

Right to redeem and equity of redemption

Mortgage is an exception to the maxim: “Agreement

You might also like