Shivdev Singh v Sucha Singh

Facts

A mortgage contained a stipulation barring redemption for a long fixed period. The mortgagor sought to redeem before the period expired, contending the clause was a clog on the equity of redemption. The mortgagee resisted on the strength of the agreed long term.

Issues

• Whether a clause postponing redemption for a long period constitutes a clog on the equity of redemption
• How the court determines oppressiveness of such a clause

Arguments

The mortgagor argued the long postponement clause defeated the right to redeem and was an oppressive clog. The mortgagee argued the parties were bound by the freely agreed term.

Held

The Supreme Court reaffirmed that the right of redemption is a substantive statutory and equitable right that cannot be defeated by clogs. Applying the settled test, the Court held that whether a long term amounts to a clog depends on all the circumstances of the transaction, including the relative bargaining position of the parties. Where the clause operates oppressively or makes redemption illusory, it is void notwithstanding agreement. The Court allowed redemption, treating the postponement clause on the facts as a clog.

Ratio decidendi

A clause postponing redemption for a long period is void as a clog where, on the totality of circumstances, it is oppressive or renders the right of redemption nugatory.

Significance

A frequently cited Supreme Court application of the clog doctrine reaffirming Seth Ganga Dhar and Pomal Kanji; consolidates the case-by-case oppression test under S60.

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