Decided on April 03,1901



Shephard, J - (1.) The facts which are imperfectly stated in the judgment of the Subordinate Judge are as follows: On the 3lsb July 1872, an instrument of mortgage was executed by Appavu Pillai and his son in favour of Samu Aiyar. According to that instrument the mortgagors delivered over to the mortgagee "for the interest on the sum of Rs. 100 (then advanced) the possession of the land"--and the instrument concludes with the following covenant made in favour of the mortgagee: If we assign our right over these properties to any one, the "land delivered possession of to you for appropriating the interest "shall be assigned to you alone, and it shall not be assigned to any-"body else. When we assign the land, we shall receive 50 fanams" more from you, and then we shall assign the land for these two amounts together.
(2.) On the 25 July 1873, Appavu and his family sold their interest in the land to Vedanayakam. Before July 1893, Vedanayakam's interest was sold in execution of a decree against him and bought by the plaintiff who instituted the present suit in February 1897. Except for the covenant above set out, the defendants who are representatives in interest of the mortgagee clearly have no answer to the suit and must submit to be redeemed.
(3.) As between the mortgagor Appavu and his mortgagee Sanmu, the only question which could arise would be whether the covenant was invalid as being made in restriction of Appavu's right of redemption or for any other reason. Samu's right was to have Appavu's interest in the property conveyed to him in 1873 when he meditated selling it to Vedanayakam. If the covenant is to be read as giving a right which was to subsist for all time and even after the redemption of the mortgage by Appavu, then I am of opinion that the covenant would be invalid because it would be a clog on the equity of redemption in the sense that Appavu would not have been able to get his property back free from all hold on it by Samu. See Rice v. Noakes & Co. (1900), 2 Ch., p. 457.;

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