KHAN BAHADUR MEHRBAN KHAN Vs. MAKHNA

JUDGEMENT

(1.) This is an appeal from the Judicial Commissioner, North-West Frontier Province, Peshawar. The Judicial Commissioner has reversed the Divisional Judge, who, on his part had affirmed the judgment and decree of the Subordinate Judge. The point is a short one. The appellant is the plaintiff in the suit. He is the assign for value of the interest of a mortgagor in property comprised in a mortgage dated 6 May 1898.

(2.) Under the mortgage the mortgagees were entitled to possession for 19 years. At the end of that period, if the mortgagor paid off the mortgage money, the property was to belong as to a limited interest therein only, to the mortgagor, and as to the major interest therein to the mortgagees. If the mortgagor failed to pay off the mortgage money at the end of the 19 years the property was apparently to belong to the mortgagees absolutely. After the expiration of the 19 years the appellant, as assign of the mortgagor, brought a redemption suit.

(3.) The Subordinate Judge and the Divisional Judge both held that the provisions of the mortgage deed limiting the interest of the mortgagor upon redemption, constituted a clog on the equity of redemption, and that the plaintiff was entitled to redeem without regard to these provisions. The Judicial Commissioner agreed with the lower Courts in thinking that the provisions in question amounted to a clog upon the equity ofredemption. He took the view, however, that a purchaser of the equity of redemption is bound by the terms of the mortgage deed and cannot set up that such terms amount to a clog.