A long term for redemption and an unrestricted option to the mortgagee to build a structure on the mortgaged property, without any restrictions on the nature of the structure or the amount to be spent, can amount to a clog on the equity of redemption and be held invalid.

GAJENDRAGADKAR. J. :- This is an appeal by the mortgagees against the preliminary decree for redemption which has been passed by both the Courts below. The property in suit is an open plot bearing Tikka No.17, Lot No.11, measuring 34 sq. yds. It was mortgaged on 9-11-1884 for Rs.178. The agreement between the parries was that the mortgagor was to redeem the mortgage 99 years after its execution and the mortgagee was given full authority to build any structure on this plot after spending any amount he liked. The mortgagor undertook to repay this amount to the mortgagee at the time of redemption. When the suit was filed by the plaintiffs to redeem this mortgage, the mortgagee pleaded that the claim was premature; 99 years had not still passed and so the amount under the mortgage could not be said to have become due within the meaning of S.60, T.P. Act. This was the contention of the mortgagee. The Courts below have held that the two material stipulations in the mortgage amounted to a clog on the equity of redemption and so they have allowed the plaintiffs to redeem the mortgage and passed a preliminary decree in that behalf. In this appeal Mr. Patel has contended that the Courts below should have held that the suit was premature.

2. The first argument which has been urged before us by Mr. Patel is that the doctrine of the clog on the equity of redemption is inapplicable in India. Mr. Patel says that the right to redeem which vests in the mortgagor is the result of a statutory provision contained in S.60, T.P. Act, and in dealing with the exercise of this right Indian Courts must confine themselves to the consideration of the said section. A mortgage under the T.P. Act is the result of a contract between the mortgagor and the mortgagee and all the stipulations contained in this contract would bind the parties, unless they are shown to be contrary to any provisions of the law. Mr. Patel concedes that if the contract of mortgage is the result of undue influence, coercion, misrepresentation or fraud, it may not bind the mortgagor and the terms of such a mortgage could be challenged by him. But if the terms of the mortgage are otherwise not inconsistent with any of the provisions of the Contract Act or the T.P. Act, they must be enforced between the parties. The term as to when the amount due under the mortgage should be paid has been settled between the parties, and since they have agreed that the due date would arrive after the lapse of 99 years, it is not open to the mortgagor to tender the amount before the due date. In other words, the terms of the mortgage in suit are otherwise perfectly valid and it is not open to the mortgagor to rely upon the doctrine of the clog on the equity of redemption to avoid the performance of these terms. That is the first contention raised by Mr. Patel before us.

3. It is true that in dealing with the provisions of Indian law it is not always safe to rely upon doctrines of English law, and if there is any provision in S.60 which is inconsistent with the doctrine as to the clog, it would not be open to us to invoke that doctrine in dealing with mortgages executed under the T.P. Act. But the doctrine of the clog on the equity of redemption is applied as a rule of justice, equity and good conscience, and in a sense it is consistent with the provisions of S.60 itself. The words "in the absence of a contract to the contrary" which are used in some of the sections of the T.P. Act are absent, in S.60. So that it is legitimate to infer that if an agreement is made between the mortgagor and the mortgagee which obstructs, hampers or fetters the mortgagors right to redeem, it would be invalid. The principle that "once a mortgage always a mortgage" is well established, and it brings out emphatically the mortgagors right to redeem which must always remain unimpaired. This right can be extinguished only by an act of parties or by operation of law. The act of parties must obviously be subsequent to the exe