1. As regards Exhibit II it is not contended that under that instrument the plaintiff is not entitled to pay off the mortgage debt at any time. He has in fact paid it, and we understand that the mortgagee has received it, but the Advocate-General has contended that notwithstanding this the Mortgagee is entitled to remain in possession until the expiry of the 12 years, the period of the mortgage as provided in the deed. The question of whether the provisions of the deed are unenfoceable on the ground that they fetter the right to redeem, of course, only arises if the parties intended, when they executed the deed, that the mortgagee should be allowed to remain in possession in the event which has in fact happened in this case, viz., discharge of the debt by the mortgagor. On the construction of Exhibit II we do not think the parties so intended. The Advocate-General relies on the provision in the deed that as soon as the debt is discharged the mortgagee shall pay tent to the mortgagor. The contingency contemplated in the deed was the satisfaction of the mortgage amount out of the property be fore the expiry of the 12 years. In this event the mortgagee was to be entitled to remain in possession until the expiry of the 12 years on payment of the rent provided in the deed.
2. The deed contains no express provision under which the mortgagee can claim to remain in possession if the mortgagor himself discharges the debt. In our opinion, so far as Exhibit II is concerned, on payment of the mortgage debt by the mortgagor, the mortgagor is entitled to redeem. Even if on the true construction of the instrument the parties intended that the mortgagee should remain in possession after the payment of the mortgage debt, we think such an agreement would be unenforceable as fettering the right to redeem.
3. As regards Exhibits III and IV(a), which were executed on the same day and which must undoubtedly, in our opinion, be read together, the case stands on a different footing. Under these instruments the mortgagee claims the right to be in possession as from 1915. The question of his right to possession under these instruments has therefore not yet arisen and will not arise until 1915. In any view it seems to us that, so far as these documents are concerned, he has no right to possession now.
4. When Exhibit III was executed the mortgagor could not put the mortgagee into possession, since on that date the mortgagee, under Exhibit II, was already in possession. This is probably the reason why it was thought necessary to execute two documents. The fact that there were two documents does not of course in itself show there were two independent transactions. The lease (Exhibit IV a) is a lease for 20 years as from 1915. It recites the mortgage and expressly provides for the payment of the mortgage-debt by the mortgagor. It contemplates the mortgagee remaining in possession notwithstanding this payment and provides that after deducting expenses the balance shall be paid to the mortgagor as rent. We do not think the lease can be regarded as an independent transaction. It is part and parcel of the mortgage transaction and its effect is to keep the mortgagor out of possession of the mortgaged property notwithstanding the discharge by him of the mortgage debt. Leases between a mortgagor and a mortgagee to last during the pendency of a mortgage are not bad in themselves Mahomed v. Ezekief (1905) 7 Bom. L.R. 773. But in the case before us the documents expressly contemplated the continuance of the lease after the mortgage-debt. We think this is a fetter on the equity of redemption which the court ought not to enforce. See Ramasami Pattar v. Chinnan Asari I.L.R. (1901) M. 449; Morgan v. Jeffreys (1901) 1 Ch. 620.
5. The appeal is dismissed with costs.