Judgement Appeal (No. 96 of 1927) from a decree of the Judicial Commissioner of the North-West Frontier Province (July 4, 1925) reversing a decree of the Divisional Judge, Deerajat Division, which affirmed a decree of the Honorary Subordinate Judge, Dera Ismail Khan. One Mohammad Khan, the predecessor in title of respondents 17 to 21, owned thirty-one plots of lands at Dera Ismail Khan ; he had superior and inferior proprietary rights, also cultivating rights therein. By a deed dated May 6, 1898, he executed a usufructuary mortgage of the plots in favour of persons now represented by respondents 1 to 16 for a term of nineteen years to secure a loan of Rs.2150. The deed contained the following condition "After the expiry of the fixed period, if I pay Rs.2160, the mortgage money, to the mortgagees, I shall be entitled to receive one pai per path out of the produce as my haq-khuti; and the mortgagees to the remaining dues, such as mahsul and jora. The mortgagees shall have the adna (inferior) proprietary rights and the cultivating possession, with which I shall have no concern." In 1920 the appellant bought the properties subject to the mortgage from the heirs and representatives of the mortgagor. In 1923 he instituted the present suit against the mortgagees and their representatives, respondents Nos. 1 to 16, and his assignors, respondents Nos. 17 to 21. He claimed to redeem and prayed for possession upon payment of Rs.2160. All three Courts in India held that the above condition in the mortgage was a clog upon the equity of redemption. The Court of the Judicial Commissioner however, reversing the lower Courts, held that the principle by which a clog on an equity of redemption was invalid did not apply where redemption was sought by an assignee who had notice of the mortgage. 1930. Jan. 21. De Gruyther K.C. and Parikh for the appellant. Dunne K.C. and Wallach for the respondents. Feb. 13. The judgment of their Lordships was delivered by LORD TOMLIN. 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. Feb. 13. The judgment of their Lordships was delivered by LORD TOMLIN. 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 May 6, 1898. Under the mortgage the mortgagees were entitled to possession for nineteen 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 nineteen years the property was apparently to belong to the mortgagees absolutely. After the expiration of the nineteen years the appellant, as assign of the mortgagor, brought a redemption suit. 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 upon 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 of redemption. 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. Their Lordships are of opinion that the Judicial Commissioner has misapplied the principles which govern in the matter. It is to be observed that the Transfer of Property Act, by s. 60 of which the right of a mortgagor to redeem is regulated, has no application to the North-West Frontier Province. The matter is governed by the North-West Frontier Province Law and Justice Regulations. Sect. 27 of Regulation No. VII. provides in effect that decisions in certain matters, which do not include mortgages, shall be according to the law of the parties concerned. The matter is governed by the North-West Frontier Province Law and Justice Regulations. Sect. 27 of Regulation No. VII. provides in effect that decisions in certain matters, which do not include mortgages, shall be according to the law of the parties concerned. By s. 28 of the same Regulation it is provided that in cases not otherwise specially provided for the judges shall decide according to justice, equity and good conscience. In Waghela Rajsanji v. Sheikh Masludin (( 1887) L. R. 14 I. A. 89,96.) Lord Hobhouse pointed out that a direction to decide by equity and good conscience was generally interpreted to mean the rules of English law if found applicable to Indian society and circumstances. The terms of s. 60 of the Transfer of Property Act are an indication that the rules of English law relating to a mortgagors right to redeem are applicable to Indian society and circumstances. There is no indication to the contrary. The matter must therefore be determined by the rules of English law. The relevant principle of English law was stated by Lord Lindley in Santley v. Wilde ([ 1899] 2 Ch. 474,475.) in language approved by Lord Halsbury in Noakes & Co. v. Rice. ([ 1902] A. C. 24,28.) Lord Lindley said " The principle is this. A mortgage is a conveyance of land or an assignment of chattels as a security for the payment of a debt or the discharge of some other obligation for which it is given. This is the idea of a mortgage and the security is redeemable on the payment or discharge of such debt or obligation, any provision to the contrary notwithstanding. That in my opinion is the law. Any provision inserted to prevent redemption on payment or performance of the debt or obligation for which the security was given is what is meant by a clog or fetter on the equity of redemption and is therefore void. It follows from this that once a mortgage always a mortgage, but I do not understand that this principle involves the further proposition that the amount or nature of the further debt or obligation, the payment or performance of which is to be secured, is a clog or fetter within the rule." In the last mentioned case Lord Macnaghten said (Ibid. 30,31,32.) " Redemption is of the very nature and essence of a mortgage as mortgages are regarded in equity. It is inherent in the thing itself and it is, I think, as firmly settled now as it ever was in former times that equity will not permit any device or contrivance designed or calculated to prevent or impede redemption. It follows as a necessary consequence that when the money secured by a mortgage of land is paid off, the land itself and the owner of the land in the use and enjoyment of it must be as free and unfettered to all intents and purposes as if the land had never been made the subject of the security." Later he added " It seems to me to be contrary to principle that a mortgagee should stipulate with his mortgagor that after full payment of principal, interest and costs he should continue to receive for a definite or an indefinite period a share of the rents and profits of the mortgaged property as the result of an obligation arising from the contract made when the mortgage was created." These expressions of opinion accord with the principles of the matter as they were explained by Lord Parker of Waddington in G. & C. Kreglinger v. New Patagonia Meat & Cold Storage Co. ([ 1914] A. C. 25, 51 et seq.) In their Lordships opinion all the Courts were acting in accordance with the authorities, to which reference has been made in holding that the provisions of the mortgage deed conferring on the mortgagees on redemption an interest in the property constituted a clog or fetter upon the equity of the redemption. Their Lordships are, however, of opinion that the Judicial Commissioner erred in holding that these provisions were binding on the assign. Their Lordships think that the provisions in question, being a clog upon the equity of the redemption, were void and could have no more binding force against the assign of the mortgagor than they had against the mortgagor himself. They are not provisions of general validity avoided against the mortgagor personally by reason of pressure or undue influence brought to bear on him. They are provisions which, when forming part of the actual mortgage contract, have under the general law no validity at all. If it were otherwise an illogical result would follow. They are not provisions of general validity avoided against the mortgagor personally by reason of pressure or undue influence brought to bear on him. They are provisions which, when forming part of the actual mortgage contract, have under the general law no validity at all. If it were otherwise an illogical result would follow. The mortgagor, if he redeemed, would escape from the burden, but if he sold to another he would necessarily bear the burden, as the validity of the provisions as against the assign would be reflected in the price which he received. For these reasons, in their Lordships judgment, the appeal should be allowed and the decree of the Divisional Judge should be restored, with costs to the appellant in the Courts below and before their Lordships Board. Their Lordships will humbly advise His Majesty accordingly.