MUHAMMAD IQBAL vs Mst. RESHMAN BIBI
This appeal arose from a civil suit concerning the ownership and redemption of a house in Gujrat City, originally evacuee property. The respondent, having mortgaged the property to the appellant in 1960, challenged a subsequent 1966 sale deed as a forgery. The trial court found the sale deed to be a forgery and decreed the suit, allowing the respondent to redeem the mortgage. The appellant challenged this, arguing that the mortgage deed stipulated a 40-year redemption period, which had not yet expired. The Supreme Court examined whether the 40-year term was enforceable. The Court held that the 40-year period was unconscionable and harsh, particularly given that the mortgagor was a female, suggesting she had been inveigled into an unfair agreement. Relying on the principle established in Ghulam Ali v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), the Court ruled that the condition restricting redemption was unenforceable. Consequently, the Court dismissed the appeal, affirming the lower courts' decisions to allow redemption despite the unexpired term.
- Can a mortgage deed clause imposing a 40-year redemption period be declared unconscionable and unenforceable?
- Is a sale deed found to be a forgery valid for transferring property ownership?
- Does the court have the authority to permit mortgage redemption before the expiry of a fixed term if that term is deemed unfair?
1. MUHAMMAD AFZAL ZULLAH, C.J.--This appeal through leave of the Court is directed against the judgment dated 12-3-1989 of the Lahore High Court; whereby the appellant's Civil Revision arising out of a suit for declaration was dismissed. Leave grant order is as follows:-- "The dispute between the parties in this petition for special leave to appeal is in respect of a house situate in Gujrat City. It was evacuee property and was transferred to the respondent by the Settlement authorities. On 27-5-1960, she mortgaged it with possession with the petitioner for a sum of Rs.6,000. Later, by a sale-deed dated 21-11-1966, she allegedly sold it to the petitioner for a sum of Rs.7,000.
2. On 2-1-1984, she filed a civil suit seeking declaration to the effect that she was still the owner of the house in dispute and that the sale-deed allegedly executed by her was bogus and a forgery. By way of consequential relief, she sought possession of the house on payment of the mortgage amount.
3. The suit was resisted by the petitioner. After considering the evidence of the parties, the trial Court held that the sale-deed was a forgery. Accordingly, it decreed the suit and directed the petitioner to hand over possession of the house to the respondent after receiving the mortgage amount and the expenses he had incurred in reconstructing the same. The petitioner filed an appeal which was dismissed by Additional District Judge at Gujrat. He then filed a revision petition in the High Court but that too met with no success. He now seeks leave to appeal from this Court.
4. In support of this petition, learned counsel for the petitioner states that even though the sale-deed had been found to be a forgery, yet there was no dispute about the genuineness of the mortgage deed. In accordance with the terms of the mortgage deed the right of redemption could not be exercised before the expiry of 40 years. That being so, the direction given by the Courts that he should surrender the possession of the house after receiving the mortgage amount, even though the period of 40 years had not expired, was clearly illegal.
5. "The contention raised by the learned counsel for the petitioner needs examination:"
6. Learned counsel for the appellant raised two-fold contention. One, that the redemption could not take place prior to the expiry of 40 years period mentioned in the mortgage deed. And secondly, that there was no justification for withdrawing the relief granted by the trial Court to the appellant regarding the compensation for the construction /re-construction by the appellant in the property in dispute.
7. In so far as the first contention is concerned, we having seen the mortgage deed are of the view that the period rued in the mortgage deed; namely, 40 years prior to which the respondent lady could not have sought redemption is not only very harsh but also unconscionable. And when looked at the fact that this extraordinary concession was being obtained from a female, it appears as if she must have been inveigled into such an unfair agreement. One possibility cannot be excluded that the period was so fixed in 1960 so as to visualise that the respondent lady may not be able to survive the period fixed in the mortgage deed. And if, she would have died what could have happened as a consequence, vis-a-vis, the mortgage deed, need not be imagined. We are satisfied that the mortgage deed in question is hit by the rule laid down in the case of Ghulam Ali v.
8. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Accordingly, the condition relied upon by the learned counsel and regarding which leave to appeal was granted shall not operate against the respondent. The first argument stands repelled.
9. The second argument was not considered fit enough to grant leave to appeal in that behalf.
10. However, we questioned the learned counsel about the amount spent by the appellant's side on the construction. According to him it is riot only the claim of the petitioner but also the admission of the lady respondent that about Rs.4,00,000 were incurred on the reconstruction. When questioned about the area and the total number of rooms, the learned counsel, after receiving instructions from his client, replied that the construction is of 3-4 rooms in a plot of about 5 marlas. The area, however, was disputed as being 3-4 marlas. The construction was allegedly made about 20 years ago. If this is the construction, the admission of the amount (asserted by the appellant's side) made by the lady is another proof positive of the fact that the she must have been misled to make such a statement. The claim made by the appellant besides being extraordinary was not made a point for grant of leave to appeal. There is no force in this appeal. The same, accordingly, is dismissed. There shall be no order as to costs.