1. Plaintiff, appellant sues to redeem an usufructuary mortgage executed in 1902 (Exhibit B). Under that document the property was put in possession of the mortgagees, and it was stipulated that the mortgage amount should be worked off by applying the usufruct, Rs. 20 a year, in discharge, firstly of the principal and secondly of the interest, A calculation shows that the mortgage amount would be discharged in about 37 years. There is another stipulation that if payment of what is then due be made on 12-1-12 the property should be handed over to the mortgagor but if such payment were not made the mortgagee's possession was to continue on the same terms as before. The payment was not made on 12-1-12 and this suit for redemption was brought in 1916 and has been dismissed as premature.
2. It is contended for appellant that the stipulation for payment in January 1912 is a covenant for payment, and that consequently the mortgagors are entitled to redeem after the time fixed for payment had expired. A perusal of the document shows that there is no personal covenant to pay and that the stipulation as to payment in 1912 is a provision inserted for the benefit of the mortgagors. They failed to avail themselves of the concession allowed, and it is expressly stipulated that in default, the original covenant is to continue in force. On this ground appellant's contention cannot be supported.
3. It is next argued that the provision in the deed that the mortgagees are to remain in possession until the mortgage money is worked off is a clog on the quite of redemption, and that effect cannot be given to such a provision. In support of this proposition appellant's counsel relies on three cases Sarbdawan Singh v. Bijai Singh I.L.R. (1914) All. 551 Srinivasa Iyengar v. Radhakrishna Pillai I.L.R. (1914) Mad. 667 and Chekkangal Govinda Menon v. Chekkengal Chathu Menon (1914) 22 I.C. 907. The first of these cases laid down that the conditions fettering the equity of redemption in that particular case could not be enforced but the learned Judges observed that it is impossible to lay down a hard and fast rule as to what should and what should not be regarded as an improper restraint on the right of redemption. In Srinivasa ly angary. Radhakrishna Pillai I.L.R. (1914) Mad. 667, a stipulation that the mortgage was to work itself out as a sale for the principal amount, if the mortgage amount was not paid on the stipulated date, was held to be unenforceable and that the right of redemption remained. The same two Judges in Chahhangal Govinda Menon v. Chakkangal Chathu Menon (1913) 21 I.C. 907, held that a stipulation that the property should only be redeemed during certain months of each year was unenforceable, but in that case also there was a personal covenant to pay and the provisions of Section 60 of the Transfer of Property Act (Act IV of 1882) applied. On the other hand postponement of redemption for long periods has been allowed by the Courts, i.e., 26 years in Rambakan Singh v. Ramkar Singh (1910) 10 I.C. 248, 58 years in Ram Prasad v. Jagrup (1912) 10 A.L.J. 157 and 59 years in Dulari v. Lal Bahadur Singh (1915) 28. I.C. 129. Apart from the question of whether the onerous nature of the restriction is such as to justify a court in refusing to enforce it, there is in this case a further point in respondents' favour, i.e., that a covenant for the mortgage money to be worked out by the usufruct is one that is not uncommon in the country and the validity of such a covenant has been recognised in Tirugnana Sambanda Pandara Sannadhi v. Naliatambi I.L.R. (1892) M. 486 and in Gunnam Dorayya v. Vadapalli Ayyanacharyulu : AIR1915Mad481 . In the latter case to which one of the Judges in Srinivasa Aiyangar v. Radhakrishna Pillai I.L.R. (1913) M. 667, was a party, it was expressly laid down, that such a covenant is not illegal according to Indian Law. In fact such a covenant is expressly recognised in Section 62 Transfer of Property Act (IV of 1882). The contention that the provisions of Section 60 of that Act must be read apart from Section 62, and that the right to redeem accrues when the money has become payable does not help the appellant, for it was held in Tirugnana Sambanda Pandara Sannadhi v. Naliatambi I.L.R. (1892) M. 486 that in a mortgage like the present redemption could not be sought before the mortgage was worked out, applying the general principle that the right to redeem and the right to foreclosure are usually co-extensive. It was held in Hussain Begum v. Collector of Cawnpur I.L.R. (1907) A. 471 s.c. 4 A.C.J. 375that the principal money only becomes payable when the payment becomes obligatory on the mortgagor. That this construction is right in so far as the obligation refers to a debt being payable would appear from the fact that in a mortgage there may be no personal liability on the part of the borrower although primu facie a loan involves a personal liability (Vide Ram Narayan Singh v. Adindranath Mukerjee (1911) 32 M.L.J. 39 and if there is no personal covenant there is no liability to pay and the money has not become payable. The conditions of the suit contract are such that no personal liability arises and therefore it cannot be said, as contended before us, that the money has become payable as soon as the contract was signed. In this particular case the money cannot become payable-as there is no personal covenant to pay; Section 62 of the T.P. Act must be applied and the mortgagors are only entitled to recover possession when the money is paid according to the terms of the contract. I may refer also to the decision of the Privy Council in Bakthawur Begam v. Hussain Khanum I.L.R. (1914) A. 195 where it was held that the right to recover possession accrued when the mortgage debt was actually satisfied. I do not think this view of mine is opposed to Rose Ammal v. Rajaratnam Ammal (1898) I.L.R. 23 M. 33 as in that case there was a personal convenant to pay. I would therefore hold that the plaintiff's suit is premature.
4. If it were necessary to decide whether the restriction on redemption is so onerous that effect should not be given to it, I would express my opinion that it is not. The parties entered into the contract with open eyes, and the mortgagors were given an opportunity of evading the restriction, but failed to take advantage of it. I can see no reason why they should be given a further euqitable relief. I would therefore dismiss this second appeal with costs of 1st respondent.
5. I agree with my learned brother that this second appeal fails. The language of the mortgage-deed is too plain to admit of any reasonable doubt that the dominant intention of the parties was that the mortgage amount and interest were to be worked off by the usufruct of the property which was agreed to be taken at Rs. 20 a year, the property being retained in the mortgagee's possession for the requisite number of years to enable that to be done. An option is no doubt given to the mortgagors to pay the amount due, on the 12th of January 1912, but the document provides that if the money is not so paid, the 'discharge is to take place only as aforesaid', that is, by the appropriation of the rent. The mortgagors, having failed to pay under that option, have lost their right to take advantage of it and their suit can succeed only if they have a right to redeem their mortgage by payment in spite of the special stipulation to let the mortgagees remain in possession till the mortgage amount and interest are worked off by the usufruct; admittedly the mortgage amount has not been so worked off yet. In fact a calculation shows that it requires 171/2 years to pay off the principal, which has to be first paid under the terms of the document, and another 18 years or 19 years to pay off the accumulated interest.
6. The learned Advocate for the mortgagor's assignee who is the appellant before us urged that on the construction of the document itself the mortgagors were entitled to repay the mortgage amount due at any time after the 12th January 1912 as they pleased. I agree, that this contention is untenable on the language of the document.: He then argued that the covenant was a clog on the equity of redemption and should be treated as invalid and that it was no hindrance to the mortgagor's claim to redeem. It is impossible to argue that an express covenant between the parties that redemption shall take place only at the end of a given term should be ignored or sat aside as a clog on the equity of redemption if that covenant is otherwise valid, in the face of the rulings in Sri Rajah Satrucharla Ramabhadra Bahadur v. Sri Rajah Vairicharia Suryanarayana Raju Bahdur I.L.R. (1880) M. 314 Tirugnana Sambanda Pandara Sannadhi v. Nallatavibi I.L.R. (1892) M. 486 Rose Ammal v. Rajaratnam Ammal I.L.R. (1898) M 33 and Gunnam Dorayya v. Vadapatti Ayyanacharyulu I.L.R. (1903) M. 295 Section 62 of the Transfer of Property Act itself recognises the validity of such covenants.
7. The learned Advocate however relied on the rulings in Srinivasa Aiyangar v. Radhakrishna Pillai I.L.R. (1913) M. 667 and Sarabkhan Sing v. Bijai Singh I.L..R. (1914) A. 551 as authorities in favour of his argument. In the Madras case the covenant was one whose effect was to put an end to the mortgage itself, the property being treated as sold; and clearly that covenant was an absolute clog on the equity of redemption. In the present case we have only a postponement of the right to redeem for a period. In the Allahabad case it was no doubt ruled that a postponement of the right to redeem may itself be a clog if it amounts to an unconscionable bargain. A covenant may be bad as a clog or it may be bad as an unconscionable bargain; the two are distinct and independent grounds, and it seems to me that it will lead to confusion of thought to mix them up. Assuming that a covenant to postpone redemption may be refused to be enforced if it is an unconscionable bargain, it is of no use to the appellant, as here the question of the nature of the bargain was not raised or discussed in the lower courts and no evidence seems to have been given of it. The appellant relies on the facts that the period fixed is about 37 years and that the rent is to be taken at Rs. 20 a year for the whole period as showing that, the arrangement was an unconscionable One. We do not know if the fixing of the rent was not more to the advantage of the mortgagors than to that of the mortgagees as no evidence has been given on the point.
8. As for the length of the period I am not able to say that it is enough in the present case to justify, by itself, an inference that the bargain, was an unconscionable one. My learned brother has referred to cases where periods ranging from 28 to 59 years have been allowed. Further more, the mortgagors had the option to terminate the period in 10 years and their failure to do so is their own fault. The covenant in this case cannot therefore be set aside on the ground of its being an unconscionable one.
9. The last argument urged by the learned Advocate was that, under S. 60 of the Transfer of Property Act, if during the continuance of a mortgage the mortgage money became payable, even for a day, the mortgagor at once got a right to redeem which he could enforce at any time thereafter even though there was a covenant against it. He cited the case in Chakkangal Govinda Menon v. Chakkangal Chathu Menon (1914) 22 I.C. 307 as an authority for this proposition which he contended was applicable to the present case as the mortgage money was payable at any rate on 12th January 1912 if not afterwards. This argument seems to me to be very curious. It is based on the words 'at any time after the principal money has become payable' in Section 60 of the Act. The respondent's vakil has tried to meet this argument by urging that the word 'payable'' in the section applies only when there is an obligation on the mortgagor to pay which the mortgagee can enforce against him: although I think it is not necessary for me to decide the point as in my view the appellant's argument fails on another ground as stated below, I wish, to guard myself against being understood as adopting this view. It seems to me to be opposed to the view expressed in Rose Ammal v. Rajaratnam Ammal I.L.R. (1898) M. 33where Mr. Justice Shephard held that money might become payable by the mortgagor even though payment could not be enforced by the mortgagee. The reasons given in that case seem to me to have considerable force. Where a mortgagor stipulates with the mortgagee that, though he should not be called upon for payment for a given time, he should have the option to pay and redeem the mortgage during that time, it appears to me to be difficult to apply the doctrine of the co-extensiveness of the right to redeem and right to foreclosure to this case and to refuse to him the very right to redeem that he has stipulated for, on the ground that the mortgagee could not sue him for money seems unreasonable; and a construction of S. 60 of the Transfer of Property Act which leads to that result seems to be of doubtful correctness. If in this, very case for example the mortgage money had been tendered on the 12th January 1912 and was refused by the mortgagee, the mortgagor's suit to compel acceptance and to redeem could hardly have been rejected and yet the view put forward will necessitate that result. The word ' payable' in Section 60 seems to me to refer to the mortgagor's right rather than to his obligation and to imply no more than the mortgagor should have a right to pay, the mortgagee being under a corresponding obligation to receive; the existence of a right in the mortgagee to enforce payment does not appear to be really necessary to make the word applicable, I do not however wish to pursue the matter further or give a final opinion on it, for I consider that even assuming Section 60 applies, and not Section 62 Clause (a) and that money was payable on the 12th of January 1912 the appellant must still fail as no tender was made on that day and as the right to do so and redeem was not subsisting after that date or when the suit was brought. I think that it is a necessary condition under Section 60 that when, payment or tender is sought to be made the mortgagor must have the right to make it as the section speaks of the payment or tender of the mortgage money 'at a proper time.' For the time to be proper, the tender or payment must be one validly and properly made; and for that, the person making it must have at the time the legal right to make it.
10. I do not consider the ruling in Chakkangoi Govinda Menon v. Chakkangoi Chathu Menon (1914) 22 I.C. 907, to be against this view. That decision seems to have proceeded on the ground that after the due date in 1899 the mortgage money was always payable the arrangement referred to therein apparently not affecting it or the right to sue but: only fixing a time for redemption and delivery of possession. It is therefore clearly distinguishable. I do not regard it as an authority for the proposition the appellant contends for.
11. As the appellant's arguments have all failed, his second appeal must be dismissed with costs of 1st respondent.