1. This is a plaintiffs' appeal arising out of a suit for redemption of a mortgage, dated the 18th of February, 1878, executed by the predecessors-in-title of the plaintiffs in favour of the ancestors of the defendants. The mortgage was for a sum of Rs. 160 and was usufructuary. Among other conditions, it is provided that the mortgagees would be entitled to appropriate the profits in lieu of interest and that at the time of redemption, there would be no accounting between the parties. There was a further provision that if in Jeth of any year the principal sum was paid, then the property would be redeemed. There was a clause that even after redemption the mortgagees would not be ejected but they would hold on the land as lessees on payment of annas 8 per bigha annually. There was a further provision that the mortgagees would be entitled either to cultivate the land or to plant a grove on it. The mortgagees, some time after the mortgage, it is not quite clear when but at least more than 25 years before the suit, did plant a grove consisting of numerous fruit trees like mangoes, jamun, mahua, guava, etc., as well as a large number of shisham trees.
2. The plaintiffs claimed that they were entitled to actual possession on payment of the principal sum only. The defendants contested the claim and pleaded that even after redemption they were entitled to hold on payment of the fixed rent. They further claimed that if possession was to he given to the plaintiffs, they must get full compensation for the grove which stands on the mortgaged land.
3. The Court of first instance was of opinion that in spite of the clause entitling the mortgagees to remain in possession as lessees, the plaintiffs were entitled to actual possession of the land but that they must pay compensation. It, however, assessed-the compensation on the actual costs incurred which it fixed at Rs. 100. On appeal the learned District Judge agreed with the view of the first Court that the plaintiffs were entitled to actual possession of the land but thought that the compensation awarded was not fair. The value of the grove, in his opinion, ought to have been taken into account. He accordingly remanded the case, and, after the findings were returned, he fixed the compensation at Rs. 1,800.
4. The plaintiffs have come up in appeal to this Court and the defendants have filed cross objections. In fact both the parties had also filed an appeal and cross-objections in the lower Appellate Court.
5. On the appeal and the cross-objections two points arise for our determination. The first is whether the plaintiffs are entitled to actual possession of the leased land on redemption or whether the mortgagees should be allowed to retain possession as lessees even after the redemption. The second point is whether the plaintiffs are bound to pay any compensation, and, if so, how much.
6. As to the first point, it seems to me that the condition that even after redemption the mortgagees would hold on the land, was a clog on the equity of redemption. Conditions which prevent or impede the right of redemption even after redemption, if such conditions are entered into at the time when the mortgage is made, must be taken to be a clog on the equity of redemption. On the other hand, a subsequent contract which modifies the right of redemption may not be such a clog. Although the principle underlying the rule of a clog on redemption is very old yet it still prevails and will not permit any device or contrivance, being part of the mortgage transaction or contemporaneous with it, to prevent or impede redemption. It follows that any covenant under which some right to retain possession is reserved to the mortgagee even after the property is redeemed is a clog on redemption as it both prevents and impedes redemption. That such a clause amounts to a clog on redemption is covered by authority. In the case of Mahomed Muse v. Jijibhai Bhagwan (1885) 9 Bom. 524, which was followed by a learned Judge of this Court in the case of Sheo Singh v. Birbahadur Singh (1910) 6 I.C. 707, and has bean subsequently followed by the Madras High Court in the case of Ankinedu v. Subbiah (1912) 35 Mad. 744, a covenant under which the mortgagee, even after redemption, was entitled to retain the property on payment of a fixed rent, was considered to be a clog on the equity of redemption and unenforceable in a Court of equity. I am accordingly of opinion that the clause cannot bind the mortgagor's representatives and that, therefore, if they have paid the entire amount due, they are entitled to take possession of the land unencumbered of any contract for the grant of perpetual lease.
7. There is another ground on which the clause allowing the mortgagees to remain in possession as lessees is not enforceable. There was no perpetual lease granted at the time when the mortgage was made and the clause can at best amount to a contract for the grant of a perpetual lease after redemption. It is apparent that if owing to failure of the mortgagors to redeem within 60 years there was no redemption, the perpetual lease would not come into existence. As a mere contract for the grant of a perpetual lease after an uncertain period of time, if any at all, the clause is no longer enforceable because the original parties to it are all dead and the present plaintiffs and defendants are their representatives. A contract for the grant of a lease does not run with the land and cannot, therefore, bind the representatives of the original parties thereto.
8. The next question involves a consideration, in the first instance, of the question as to whether the grove is an accession within the meaning of Section 63 of the Transfer of Property Act and whether, if an accession, it is or is not capable of separate possession or enjoyment. I am of opinion that the grove as a grove is both an accession and is incapable of separate possession and enjoyment. The grove, in order to be enjoyed as a grove, has to be maintained and the fruits and produce of it are to be enjoyed. This cannot be done without detriment to the land on which the grove stands. On the other hand, if the groves were to be cut down, the timber can be removed and is capable of separate enjoyment. The case therefore, in my opinion is a case of an accession which has been acquired at the expense of the mortgagees, and if it is to be put to its full use, it is incapable of separate possession or enjoyment without detriment to the principal property. I have already referred to the clause in the mortgage-deed under which express power or consent was given to the1 mortgagees to plant a grove if they liked. In pursuance of that assent of the mortgagors the mortgagees have planted a grove-which they were perfectly entitled to do. It is immaterial whether the assent was obtained previously or whether it was obtained just at the time when the grove was being planted. There was clearly an original assent given to the mortgagees within the meaning of Section 63. It follows, therefore, that the grove as a grove has been acquired at the expense of the mortgagees, is not capable of separate enjoyment, and0 its accession has been made with the assent of the mortgagors. Under these circumstances the mortgagees are entitled to insist that the plaintiffs-mortgagors must take the land with the grove and pay to the mortgagees the costs thereof.
9. The learned Advocate for the appellants contends that the Full Bench case of Raghunandan Rai v. Raghunandan Pande A.I.R. 1921 All. 353 is an authority for the proposition-that a grove is capable of separate enjoyment. It is urged that unless it be supposed that that was held by the Full Bench, it is not easy to see how the decree in that case could have been passed under which the mortgagor did not get the grove or timber but the mortgagee was allowed to remove the timber and appropriate it. It is urged that if the Full Bench thought that a grove is incapable of separate enjoyment, then in the event of there being no assent of the mortgagors, the accession ought to have gone to the mortgagors with the land under the first paragraph of Section 63. The learned Judges who formed the Full Bench, however, have nowhere said that a grove as a grove is capable of separate enjoyment. I am not, therefore, bound to assume that this must have been their view simply because a contrary result might appear to logically follow from a contrary hypothesis. That decision might have been based on the broad equitable ground that mortgagors are at best entitled to have the land restored in its previous condition and without the acquired accession which can be removed without detriment to the land. The Full Bench case is distinguishable from the present case because in that case the alleged contract that the mortgagee would be entitled to plant a grove, which had bean pleaded in the written statement, wag not proved to the satisfaction of the Court below nor pressed before the Full Bench. In my opinion the present ease cornea exactly within the second clause of Section 63 and the plaintiffs, therefore, are bound to take the land with the grove and pay for it.
10. As regards the amount of compensation, the learned Judge has fixed Rs. 1,800 as a proper estimate. He has calculated the total amount that would have been spent for all these years in rearing up this grove and has come to the conclusion, to use his own words, that 'it is impossible to make a very accurate estimate of the expenditure which the defendants have incurred, but it seems to me that a sum of Rs. 1,800 would be a fair estimate. As I have already remarked, the expenditure was incurred upon the faith of a promise made by the plaintiffs. If the present value of the grove is Rs. 2,300, it is a fair estimate to say that Rs. 1,800 was the capital spent upon it.' It is clear, therefore, that his estimate of Rs. 1,800 is of the total amount spent on the grove and does not include the value of the timber or the interest on the amount spent. It may be that in calculating the amount the learned Judge has included some interest though not full interest because the profits made by the mortgagees bad been practically very little. The learned Judge had in his mind the principles which ought to govern the calculation of the estimate and, in my opinion, his estimate must be accepted as a finding of fact.
11. I would, therefore, dismiss both the appeal, and cross-objections.
12. I entirely agree with my learned brother that both the appeal and the cross-objections must be dismissed.
13. As pointed out by my learned brother, there are two points in the case : (1) whether the agreement that the mortgagees were to continue in possession of the mortgaged land in spite of the receipt of the mortgage money was a clog on redemption and, therefore, must be disregarded and (2) whether the mortgagors should get the trees without payment.
14. In pursuance of an agreement in the mortgage-deed, the mortgagees planted the grove. The question is whether in spite of their planting the grove, the agreement that the mortgagees were to continue in possession must be treated as unenforceable in law. The principle on which the doctrine of clog on redemption is based has its origin in the law of England, but it has been recognised by British Indian Legislature, and, although the English law as such is not applicable to this country, the law enacted in India is to be enforced. That law is to be found in Section 60 of the Transfer of Property Act. It is significant that the usual words to be found in so many sections of the Transfer of Property Act, namely 'in the absence of a contract to the contrary,' do not find any place in Section 60 of the Transfer of Property Act. The rule enacted thereby is this. Whenever the principal mortgage money has fallen due, the mortgagor on payment to the mortgagee may require the latter (a) to deliver the mortgage deed, (b) to deliver possession, (c) to re-transfer the property. This Section 60 came in for interpretation by their Lordships of the Privy Council in the case of Mohammad Sher Khan v. Raja Seth Swami Dayal A.I.R. 1922 P.C. 17 and their Lordships remarked that the language of the section was unqualified. It seems to me to be clear, both on the language of the law and on authority, that any agreement contained in the mortgage-deed which prevents the mortgagor from acquiring possession of the property on payment of the mortgage money is not enforceable, and must be disregarded. The mortgagor has an absolute right to sat back the property on payment. Of course where there is a subsequent transaction which extinguishes or modifies the right to redeem which the mortgagor possesses, the matter would be different. Such a case is provided for by the second paragraph of Section 60. The first question, therefore, must be answered in favour of the mortgagors.
15. The second question is whether the mortgagors ought to have the grove without payment. Section 63 is the law on the point. The grove is an accession and, therefore, under the general law as enacted in paragraph 1 of Section 63, it ought to go with the land to the mortgagors. There are, however, certain exceptions enacted. The first one is that where the mortgagee has spent money to acquire an accession and the accession is capable of separate enjoyment; without detriment to the principal property, the mortgagor cannot have it without paying for the same. The question is whether a grove is a property which is capable of separate enjoyment. If it be capable of separate enjoyment without detriment to the principal property, the mortgagor must pay for it if he wants to get it. There can be no doubt that there are two uses of the grove. A grove involves the right to maintain the trees on the spot. It also includes a right to remove the timber. Of the two rights that exist in the holder of the grove, one is capable of separate enjoyment and the other is not. If the owner of the grove wants to enjoy it with the trees standing on the spot, he cannot enjoy the trees as apart from the land. On the other hand, if he wants to cut down the trees, he can separately enjoy the timber. That being the case, it must be taken that the question is not capable of an answer without losing sight of the fact that a grove can be put to two uses. It is no doubt open to the person occupying the grove to say that he would not enjoy it as a grove but he would enjoy the timber. In the latter case, it would be open to the mortgagee to remove the timber if the mortgagor is not willing to pay for the same. This was held by me to ha the law in Ram Brichh Singh v. Chhakauri Singh Reported in : AIR1925All748 (Supra). A similar view was taken in the F.B. case of Raghu Nandan v. Raghu Nandan A.I.R. 1921 All. 353.
16. In this particular case, the mortgagees say that they are not disposed to cut and remove the timber and they want to enjoy the grove as a grove. Now the question is whether they can do so, if the mortgagors are unwilling to pay for it. I agree with my learner brother that the mortgagees cannot enjoy the grove apart from the land itself. That being the case, the grove must go with the land. I have already stated that here the mortgagees are unwilling to cut and remove the timber.
17. The next question is whether we can compel the mortgagors to pay for the grove, that is to say, the trees as they as standing on the spot. There are two cases in which the mortgagor can be compelled to pay for the accession namely (1) where the accession is necessary for the preservation of the property, and (2) where the accession was acquired with the assent of the mortgagor. This is a case in which the accession was acquired with the assent of the mortgagors. The mortgagors not only said that the mortgagees might plant a grove but they promised that they would not take back the land at all In the circumstances, the mortgagors must pay compensation.
18. The decree of the Court below is maintained and the appeal and the cross-objections are dismissed with costs.