The judgment established that the right of redemption under Sec. 60, T. P. Act is a statutory right inherent to the mortgage itself and cannot be controlled by any agreement made as part of the mortgage transaction.

Ramaswami, J.

1. In the suit out of which this appeal arises the plaintiffs alleged that they had lent a sum of Rs. 700 to defendant l who had to file a suit against Raghunandan Mahto and Mt. Maraohhia with respect to lands described in Schedules 1 and 2 of the plaint. Defendant 1 executed a bond in favour of the plaintiffs by which he mortgaged a portion of these lands, that is, 6 acres 4 decimals of kasht land in villages Chanki and Rutwan. The defendants further agreed that after the disposal of the title suit against Mt. Marachhia and Raghunandan he would execute a deed of sale in favour of the plaintiffs with respect to the lands which had been mortgaged. In case of his not executing the dead of Bale, the mortgagees were given option to get the sale-deed executed through Court. The plaintiffs alleged that defendant 1 obtained a decree in the two suits and secured possession of the properties. As defendant refused to execute the deed of sale the plaintiffs brought the suit for specific performance of the contract. The main ground of defence was that the document was farzi and without consideration; that it had been executed merely in order to create evidence of the possession of defendant 1 over the properties in respect of which the suits had been filed. The learned Munsif held that the document was genuine and for consideration and granted the plaintiffs a decree for specific performance of the contract. The decree has been affirmed by the learned Subordinate Judge in appeal.

2. The main question to be decided in the appeal is whether the stipulation by which defendant 1 bound himself to sell the mortgaged properties was a clog on the equity of redemption and so illegal and void on this account.

3. Under Sec. 60, T. P. Act, the right of redemption is a statutory right which as Lord Macnaghten said in Noakes V/s. Rice, 1902 A. C. 24 : (71 L. 3. Ch. 139) is "of the very nature and essence of a mortgage inherent to the thing itself." The right of redemption cannot, therefore, be controlled by any agreement made as part of the transaction of mortgage. In Jarrah Timber and Wood Paving Corporation V/s. Samuel, (1903) 2 Ch. l at p. 7 Collins, M. R. approved and adopted the following extract from a judgment in Browne V/s. Ryan, (1901) 2 Ir. Rule 653 :

"It is the right of a mortgagor on redemption, by reason of the very nature of a mortgage, to get back the subject of the mortgage. . . . to hold and enjoy as he was entitled to hold and enjoy it before the mortgage. If he is prevented from doing so, that which he is entitled to on redemption is prevented and to constitute such prevention It is not necessary that the subject of the mortgage should be directly charged with whatever causes the prevention. It he be so prevented in fact, the equity of redemption is affected by what, whether very aptly or not, has been always-termed a clog. "

4. On behalf of the respondents Mr. P. R. Das conceded that if the document was a mortgage the stipulation as to sale of the properties would be a clog on the equity of redemption and could not be enforced. Learned counsel, however, maintained that upon its proper construction the document was not a mortgage but was a mere contract for sale of the properties mentioned therein. In my opinion this argument is not sustainable. A mortgage is a transfer of an interest in specific immovable property as security for the repayment of a debt. The debt subsists in a mortgage whereas a transaction by which a debt is extinguished is not a mortgage but a sale. In the present case the executant clearly recites that he

"with free will borrowed Rs. 700 cash at interest of one rupee per month from Ramkeshar Chaudhury sons of Gati Chaudhury of village Habupore" (Is lie ba khus razai wa raghbai apne mubligh sat sau rupia 700/ sikka raejul waqt qarza sudi basharah fisad ek rupia mahwari musammian Ram Keshar Chaudhuri wald Gati Chaudhury haiulqaem, sakin mauza Habbupur).

The executant proceeded to state :

"in s