Achhru Ram, J.
1. This is an appeal from the decree of a Subordinate Judge of Gurdaspur dismissing the plaintiff's suit for possession by redemption of 52 kanals and 13 marlas of land situate in the village of Jaura Singha in Batala Tahsil in the district of Gurdaspur.
2. The suit land belonged to one Ishar Das son of Jawahar Singh who mortgaged the same with possession to Lachhman Singh defendant 1, for a sum of Rs. 5,096 by means of mortgage deed dated 28th July 1920. This mortgage deed is Ex. D-1 and is printed at page 79 of the paper book. According to the terms of mortgage deed, the mortgagee was to receive a sum of Rs. 400 per annum as interest in addition to the rents and profits of the land mortgaged and the mortgagor was to have no right to redeem the mortgage for a period, of forty years. Lachhman Singh mortgagee sold one-half share of his mortgagee rights to Ghamanda Singh, defendant 2, and 1/3rd of these rights to TJdham Singh and Balwant Singh, defendants 3 and 4. Ishar Das mortgagor died without Jeaving any child or widow and was, succeeded by Devi Das, defendant 5. On 21st February 1943 the aforesaid Devi Das mortgaged. with possession the land in dispute with the plaintiff for a sum of Rs. 7,800. Out of the consideration for this mortgage a sum of Rs. 7,800 was left with the plaintiff for redemption of the mortgage effected by Ishar Das in 1920. After making an unsuccessful application to the Collector for redemption of the suit land under the Redemption of Mortgages Act the plaintiff, on 17th November 1943, brought the suit which has given rise to the present appeal. The suit was resisted by defendants 1 to 4 inter alia on the plea that the plaintiff could not redeem the mortgage before the expiration of the stipulated period of forty years. The plaintiff alleged that the stipulation postponing redemption of the mortgage for a period of forty years was in the nature of a clog on the equity of redemption and was not therefore enforceable. This allegation of the plaintiff was met with the plea that he being merely a mortgagee from the representative-in-interest of the original mortgagor and having taken his mortgage with full knowledge of the stipulation postponing redemption, could not, under the law, be permitted to plead that the stipulation was in the nature of a clog on the right of redemption and was not therefore enforceable. On the pleadings of the parties, to learned trial Judge framed the following issues:
(1) Was the mortgage deed Ex. P-1 executed without consideration?
(2) Was defendant 5 under the influence of liquor when he executed the mortgage deed Ex. P. 1, if so what was its effect ?
(3) Did defendant 5 validly mortgage the land in suit in favour of the plaintiff?
(4) If issue No. 3 be proved then has not the plaintiff loons standi to plead that the conditions fixing the period for redemption and for payment of interest in the mortgage Ex. D-1 were void?
(5) Could not the plaintiff challenge the said conditions on account of the law of limitation?
(6) If issues Nos. 4 and 5 be not proved then were, the said conditions void as being a clog on the equity of redemdtion?
3. The first three issues were decided by the learned Judge in the plaintiff's favour. The fourth issue was, however, decided against him, it being held that he being merely a mortgagee of the interest, pf defandant 5 could not object to the validity of the conditions postponing redemption for a period of forty years and imposing on the mortgagor the liability to pay interest at the rate of Rs. 400 per annum in addition to the rents and profits of the mortgaged property. The fifth issue was decided in the plaintiff's favour. No decision was given on the sixth issue. In view of the decision on the fourth issue the plaintiff's suit was dismissed as premature and incompetent. The plaintiff has come up in appeal to this Court.
4. After hearing the learned Counsel for the respondents, I find myself unable to uphold the decision of the learned trial Judge on the fourth issue. In Mehrban Khan v. Makhhan their Lordships of the Judicial Committee have held that where a provision in a mortgage deed, being a clog on the equity of redemption, is void and unenforceable against the original mortgagor, it can have no more binding force against the assign of the Said mortgagor than it had against the mortgagor himself. A distinction was drawn by their Lordships between provisions of general, validity avoided against the mortgagor personally by reason of pressure or undue influence brought to bear upon him and provisions which when forming part of the actual mortgage contract had under the general law no validity at all. Their Lordships were pleased to point out that if such a distinction was not drawn an illogical result would follow, and that the mortgagor While redeeming personally would escape from the burden but would have to bear the same burden in case he assigned his right to another because the validity of the provisions as against the assign was bound to be reflected in the consideration for the assignment. The learned trial Judge has sought to distinguish the present case from the judgment of their Lordships of the Judicial Committee on the ground that the assignment by the mortgagor in the present case took the shape of a mortgage while the assign suing to redeem the mortgage in the case dealt with by their Lordships was the purchaser of the equity of redemption. On principle, however, I can see no distinction between the two cases. Where a provision in the mortgage deed by reason of being a clog on the equity of redemption is altogether void and wholly unenforceable, it must be held to be so whether it is the original mortgagor who seeks to redeem the mortgage by ignoring the provision or it is an assign of his, be that assign a purchaser or mortgagee of his right, who seeks to do so. If the provision is void and unenforceable against the mortgagor it does not cease to be so merely because the mortgagor instead of redeeming the mortgage himself has left it to a subsequent mortgagee from himself to do so. The decisions of the High Court of Lahore and the Chief Court of the Punjab that have been relied on by the learned Judge were given in cases in which the validity of certain provisions in the mortgage deed was attacked on the ground of coercion or un due influence having been brought to bear upon the original mortgagor. All that was held in these cases was that the provisions being only voidable at the instance of the original mortgagor his transferee who had purchased his rights subject to those provisions could not be permitted to go behind them or to challenge them. As observed by their Lordships, cases of this type (stand on a footing entirely differant from those in which the mortgagor or his successor-in-interest claims the right to ignore a provision in the mortgage deed on the groundnuts being a clog on the equity of redemption and therefore wholly void and unenforceable. It is ture that in Rahmat Ali v. Shadi Ram A.I.R.1925 Lah. 452 the condition in the mortgage deed was alleged to be a clog on the equity of redemption and still, it was held that the transferee of the equity of redemption could not be granted any relief on that ground. This decision cannot be regarded as laying down correct law in view of the decision of their Lordships of the Judicial Committee.
5. For the reasons given above, I would incept this appeal and setting aside the decree of the learned trial Judge dismissing the plaintiff's suit as premature would remit the case to him for a fresh decision according to law after deciding issue No. 6, Costs of this appeal will be costs in the cause. The parties have in directed to appear in the trail Court on 5th January 1948.