1. This appeal arises out of a suit for redemption of a mortgage of a tenancy at fixed rates made by one Kandhaiagir in 1880. The plaintiff obtained from him a perpetual lease of the mortgage property in (sic), and in 1892, Kandhaiagir executed in favour of the plaintiff a sale-deed of his right to receive the rent reserved by the lease. It is by virtue of this transfer in his favour that the plaintiff seeks to redeem the mortgage.
2. The claim was resisted on two grounds:
1. that Kandhaiagir died without issue and, therefore, his tenancy came to an end and that the plaintiff has no right or interest in the property which would entitle him to seek redemption, and
2. that, under the covenant contained in the mortgage-deed executed by Kandhaiagir, the defendants are entitled to continue in possession of the mortgaged property on payment of rent at a rate mentioned in the mortgage-deed and that although the plaintiff may be entitled to redeem, he has no right to recover possession.
3. Both pleas were repelled by the Courts below which decreed the claim. The defendants have preferred this appeal and the pleas put forward in the lower Courts have been repeated in this Court.
4. I have, therefore, to determine two questions (1) whether the plaintiff has a right to redeem and (2) whether the condition in the mortgage-deed, on which the defendants rely, is a fetter on the right of redemption and is, therefore, void.
5. As regards the first point, it is admitted the plaintiff obtained a perpetual lease of the tenancy at fixed rates held by Kandhaiagir. As the interests of Kandhaiagir were under the provisions of Section 9 of Act XII of 1881 transferable, he was competent to grant a perpetual lease to the plaintiff. He subsquently assigned to the plaintiff the right to receive the rent reserved by the lease. He thus parted with all his interests in the tenancy and the plaintiff has become the absolute owner of the tenancy. In fact his statement is that his name is recorded in the Revenue papers as tenant at fixed rates of the land in question and this statement is not traversed. The plaintiff is, therefore, entitled to sue for redemption. The learned Vakil for the appellant relies on Section 18 of the Agra Tenancy Act and contends that under that section the right of occupancy is extinguished when the tenant dies leaving no heir entitled to inherit the right. He argues that as a tenant at fixed rates has also a right of occupancy, the right, which Kandhaiagir had, became extinct on his death, he having left no heirs. It seems to me that Section 18 relates to the right of occupancy referred to in Section 11 of the Act and does not apply to the case of a tenant at fixed rates whose interests are under Section 20 of the Act heritable and transferable. The first plea is, therefore, without force.
6. The main contention in this case relates to the question whether the stipulation in the mortgage-deed, to which I have referred above, is a clog or fetter on the equity of redemption.
7. By Section 60 of the Transfer of Property Act a mortgagor may, on payment of the mortgage-money, require the mortgagee, where he is in possession of the mortgaged property, to deliver back possession thereof, and a decree for redemption under Section 92 of the Act is a decree which directs the mortgagee upon payment by the mortgagor of the amount of mortgage-money to put the mortgagor in possession of the mortgaged property, It is clear, therefore, that under the provisions of the Transfer of Property Act, a mortgagor is entitled upon payment of the mortgage-money to be put back into possession of the mortgaged property of which the mortgagee was in possession. Any condition in the mortgage-deed which deprives him of this right must be deemed to be1 a fetter on the right of redemption. The latest case on the question is that of Bradley v. Carritt (1903) L.R.A.C. 253 : 88 L.T. 633 : 51 W.R. 636 : 72 L.J.K.B. 471, and the principle of that ruling clearly applies to this case. The principle, as stated by Lord Davey in his judgment, is this: 'On payment of the principal, interest and costs together with any bonus or anything in the nature of a bonus, which has been properly stipulated for and has become payable, the mortgage contract comes to an end and the mortgagor is entitled to get his property back unaltered in character, condition and incidents and is henceforth relieved from the burden imposed upon him by the contract' (at page 266). Further on he observes that a mortgagee cannot insist on retaining the benefit of a covenant in the mortgage contract materially affecting the enjoyment of the mortgaged property after all principal, interests and costs and everything, which has become payable, before redemption, has been paid. Applying this principle to the present case, the stipulation in the mortgage-deed by which on payment of the principal, interest and costs the mortgagor is not to recover possession bat is bound to allow the mortgagee to continue in possession apparently in perpetuity upon payment of a fixed rent, prevents the mortgagor from getting the property unfettered by any liability and is thus a clog on his equity of redemption. The question now before me was considered by the Bombay High Court in Mahomed Muse v. Jijibhai Bhagwan 9 B. 524. In that case the mortgage-deed provided that if the mortgagor redeemed the land, the land should remain in the hands of the mortgagee he paying rent at Rs. 2 per bight. It was held that 'such a condition, although it does not exclude the right of redemption, fetters it with the onerous obligation of accepting the mortgagee as a perpetual tenant and ought not, therefore, to be enforced in a Court of equity.' That case is on all fours with this case and no authority has been cited to the contrary. The learned Vakil for the appellant relies on Bimal Jati v. Biranja Kuar 22 A. 238. That case is, in my opinion, distinguishable. In that case there was no covenant fettering the right of redemption but there was a collateral covenant giving the mortgagee a right of pre-emption in respect of the mortgaged property in the event of the mortgagor selling the mortgaged property after redemption. It was held that such a covenant was not void. That is not the case here. I may, however, observe that the decision of the Court of appeal in Santley v. Wilde (1899) L.R. 2 Ch. D. 474 : 68 L.J. Ch. 681 : 81 L.T. 393 : 48 W.R. 90, referred to in the case last mentioned, was overruled by the House of Lords in the case of Bradley v. (1), cited above.
8. For the above reasons, I am of opinion that the judgment of the lower Court is right and I see no reason to interfere with it.
9. I accordingly dismiss the appeal with costs including fees on the higher scale.