M. M. DUTT, J. ( 1 ) THIS appeal is at the instance of the plaintiff and it arises out of a suit for redemption of a mortgage. Rajen and Suren were two brothers. The plaintiff No. 1 is the son of Rajen and the plaintiff No. 2 is his widow. During the life-time Rajen mortgaged all his properties including his share in the dwelling house to his brother Suren by a registered deed of mortgage dated Agrahayan 27, 1337 B. S. corresponding to December 13, 1930, as security for repayment of a loan of Rs. 100 with interest as stipulated. There is a stipulation in the mortgage deed that if by the end of Chaitra 1343 B. S. the mortgagor fails to reply the debt together with interest, the deed of mortgage will be treated as a deed of sale and the mortgagee will get the disputed properties absolutely. The case of the plaintiffs is that Rajen died about ten years after the mortgage deed was executed and that at the time of his death the plaintiff No. 1 was only five years of age. It has been alleged by the plaintiffs that their uncle Suren used to look after the mortgage property on behalf of the plaintiffs after the death of Rajen. Subsequently, their uncle Suren gave out that the mortgage deed had been satisfied out of the usufruct of the mortgage properties, but the mortgage deed remained with Suren as the plaintiff No. 1 was a minor at that time and as the mortgage was his guardian. In the revisional settlement record of rights the defendants Nos. 1 to 3, who were heirs of the mortgagee, had been trying to record their names in respect of their mortgage properties by virtue of the said stipulation in the deed of mortgage. On the aforesaid allegations the plaintiffs instituted the suit for redemption. ( 2 ) THE defendant No. 1 alone appeared in the suit and contested the same by filing a written statement. The defendant No. 1 relied on the said stipulation in the mortgage deed. On the aforesaid allegations the plaintiffs instituted the suit for redemption. ( 2 ) THE defendant No. 1 alone appeared in the suit and contested the same by filing a written statement. The defendant No. 1 relied on the said stipulation in the mortgage deed. Further, it was alleged that the mortgagor having failed to repay the debt within the stipulated time, he surrendered his right of redemption and delivered possession of the mortgage properties to the mortgagee Suren on Baisakh 1, 1345 B. S. , who took khas possession of the same as a purchaser and, thereafter spent money for the improvement of the mortgage properties by digging a tank in exercise of the right under the said stipulation in the mortgage deed. It was alleged that Suren took possession of all the properties as a purchaser except that the mortgagor was allowed to stay in the dwelling house as the licensee of his brother Suren. ( 3 ) THE learned Munsif came to the findings that there was practically no proof to show that there was any bargain between the mortgagor and the mortgagee did not take possession of the mortgage properties as a purchaser, but he took possession of the same as mortgagee. Further, he held that the stipulation in the mortgage deed was a clog on the equity of redemption and, as such, it was void. He took the view that the Court could not give effect to any such clog or fetter the right of redemption of the mortgagor. Upon the said findings the learned Munsif decreed the plaintiff's suit in preliminary form. The defendants were directed to render accounts in the manner stated in the decree. ( 4 ) BEING aggrieved by the judgment and decree of the learned Munsif the defendants preferred an appeal which was heard by the learned Subordinate Judge, Ninth Court, Alipore. The learned Subordinate Judge, however, came to the finding that Rajen surrendered his equity of redemption in favour of Suren in 1345 B. S. and that Suren's possession of the mortgage properties since 1345 B. S. was not possession of the mortgagee but of the owner. The learned Subordinate Judge further found that the possession of Suren was adverse to the plaintiffs and that the suit was barred by adverse possession. The learned Subordinate Judge further found that the possession of Suren was adverse to the plaintiffs and that the suit was barred by adverse possession. In that view of the matter, the learned Subordinate Judge allowed the judgment and decree of the learned Munsif and dismissed the suit. Hence, this second appeal at the instance of the plaintiffs. ( 5 ) THE stipulation in the mortgage deed is that if the mortgage fails to repay the debt together with interest by Chaitra 1343 B. S. , the mortgage deed will be treated as a deed of sale and that mortgagee will be entitled to the mortgage properties. By this stipulation the mortgagor's right of redemption has been restricted to a great extent. The mortgagor has been sought to be prevented from exercising the right of redemption after the expiry of the said period, namely, after expiry of Chaitra 1343 B. S. , in case the debt remains unpaid. There can be no doubt that such a stipulation is a clog on the equity of redemption. In (1) Mehrban Khan v. Makhna AIR 1930 PC 142 it has been held by the Privy Council that a condition in the mortgage deed that the mortgage will work itself out into a sale, i. e. the mortgagee shall be the absolute owner of the property should the amount be not paid within a fixed period, is a clog on redemption and therefore void. In the instant case also, the stipulation referred to above is similar to the condition referred to in the above decision of the Privy Council. The stipulation is, therefore void. ( 6 ) UNDER the proviso to section 60 of the Transfer of Property Act the right of redemption can be extinguished by the act of parties. The act of parties referred to in the proviso must be an act or a transaction subsequent to the mortgage. If by any subsequent act or transaction the mortgage enters into the possession of the mortgage properties not as mortgagee but as a purchaser thereof, in that case the possession of the mortgagee will be adverse to that of the mortgagor and that after the expiry of the statutory period the mortgagee acquires title by adverse possession in a case where the transaction is invalid in law. In (2) Padma Vithoba Chakkayya v. Mohd. Multan and Ors. In (2) Padma Vithoba Chakkayya v. Mohd. Multan and Ors. , AIR 1963 SC 70 , it has been laid down by the Supreme Court that when a person gets into possession of properties as mortgagee, he cannot by any unilateral act or declaration of his prescribe for a title by adverse possession against the mortgagor; but if the mortgagor and the mortgagee subsequently enter into a transaction under which the mortgagee is to hold the properties there after not as a mortgagee but as an owner that would be sufficient to start adverse possession against the mortgagor if the transaction is for any reason inoperative under law. In the case before the Supreme Court the subsequent transaction was the sale of the mortgage properties. ( 7 ) IN the instant case, it has been alleged by the defendants that on Baisakh 1, 1345 B. S. , Rajen Surrendered the equity of redemption and treated the mortgage deed as a deed of sale in view of the said stipulation and delivered possession of the mortgage properties to his brother Suren who took possession of the same as a purchaser and not as a mortgagee. The plaintiff's case is that Suren was in possession of the mortgage properties as the guardian of the plaintiff No. 1 who was then a minor. The plaintiff's case, however, was not accepted by the lower appellate Court that Suren was in possession as the guardian of the plaintiff No. 1. The onus lay upon the defendants to prove that by an act of the parties the equity of redemption was extinguished. In support of the said allegation the defendant No. 1, who is the son of the mortgagee Suren, says in the evidence that they have been possessing the suit properties for 22 years as purchaser and not as mortgagee and that the plaintiff's predecessor gave up possession in 1345 B. S. He further says that they had no possession previous to 1345 B. S. Throughout his evidence no allegation has been made by him that Rajen surrendered his equity of redemption or that the mortgage properties were sold by Rajen. It is not the case of the defendant that there was any deed of sale subsequent to the deed of mortgage. It is not the case of the defendant that there was any deed of sale subsequent to the deed of mortgage. The defendant No. 1 has only alleged in his evidence that Rajen gave up possession in 1345 B. S. and that they have been possession the same as purchaser and not as mortgagee. No allegation has been made by the defendant No. 1 in his evidence that Rajen surrendered his right of redemption. Another witness was examined on behalf of the defendants, namely, one Panchcowri Mondal. He was an attesting witness to the mortgage deed (Ext. 3 ). He says that Rajen had the possession of the properties upon 1345 B. S. , that he gave up the possession of the same in favour of Suren in 1345 B. S. and that since then Suren has been possession the same. He further says that Suren began to possess the mortgage properties as a purchaser and not as a mortgagee. It also transpires from the evidence of this witness that when Suren made demands for the payment of the mortgage debt in 1345 B. S. there was a majlis which was called by Rajen. The witness has alleged that 'thee was a talk of writing' and that, according to the talk that took place in the majlis, the homestead land was not the subject-matter of the sale. It therefore, follows from the evidence of thin witness that before the alleged surrender by Rajen there was a meeting of Rajen and other persons over the matter. The specific evidence of this witness is that the homestead land was not the subject-matter of the alleged sale. The defendants' case is that Suren took possession of all the mortgage properties including the dwelling house. The evidence of this witness is not, therefore, consistent with the case of the defendants. ( 8 ) SO far as the evidence of the defendant No. 1 is concerned, it may be stated that he was not at all competent to speak anything about the alleged surrender by Rajen on Baisakh 1, 1345 B. S. He was only a child of five or six years at that time. ( 8 ) SO far as the evidence of the defendant No. 1 is concerned, it may be stated that he was not at all competent to speak anything about the alleged surrender by Rajen on Baisakh 1, 1345 B. S. He was only a child of five or six years at that time. ( 9 ) THE lower Appellate Court has come to the finding that Suren's possession of the mortgage property since 1345 B. S. can only be explained by the defence version of the story, namely, that Rajen surrendered the equity of redemption in favour of his brother Suren in 1345 B. S. I have already discussed the evidence and it appears to me that the finding of the lower Appellate Court that there was surrender by Rajen of this equity of redemption is not supported by any evidence. The finding of the lower Appellate Court in my opinion is based on mere assumption. The lower Appellate Court has not accepted the case of the plaintiffs that Suren was in possession of the mortgage properties as the guardian of the minor, the plaintiff No. 1. This does not mean that the case of the defendants that Rajen surrendered his equity of redemption is proved. Unless there is positive evidence of a subsequent transaction, namely, sale by Rajen of his equity of redemption to his brother Suren, it is difficult to hold that there was surrender. The finding of the lower Appellate Court that there was such a surrender and that Suren's possession of the mortgage property was not the possession of the mortgagee but of the owner, is without any evidence. In coming of the said finding, the lower Appellate Court has not referred to the evidence of defendant No. 1 and the defendants' witness Panchcowri. It is apparent from the case pleaded in para 8 of the written statement that the defendants founded their claim on the stipulation made in the mortgage deed. It might be that Suren came to possess the properties on Baisakh I, 1345 B. S. , but in the absence of evidence of any subsequent transaction it will not be reasonable to hold that Suren's possession was not as a mortgagee but as an owner. Similarly, without any evidence the lower Appellate Court was not justified in holding that Rajen surrendered his equity of redemption. Similarly, without any evidence the lower Appellate Court was not justified in holding that Rajen surrendered his equity of redemption. When a finding of facts is not based on any evidence, it cannot be upheld. The learned Munsif has rightly observed that there is practically no proof to show that there was any bargain between the parties. The learned Munsif has further observed that price was settled for the mortgage properties and that no such price was set off against the mortgage debt. It has been held by him that the possession of the defendants is referable to the mortgage deed. In my opinion, in view of the evidence and materials on record, the learned Munsif was perfectly justified in coming to the said findings. As the finding of the lower Appellate Court is without any evidence it is set aside. I do not also find any reasonable ground for sending the case back on remand to the lower Appellate Court for a fresh finding. ( 10 ) FOR reasons aforesaid, the judgment and decree of the lower Appellate Court are set aside and those of the learned Munsif are restored. ( 11 ) THE appeal is allowed, but in view of the facts and circumstances of the case there will be no order as to costs. Leave to appeal under Clause 15 of the Letters Patent is prayed for but refused. Appeal allowed.