Mortgage redemption rights fail once the claim is time-barred; default-to-sale clauses cannot defeat the equity of redemption.

A mortgage transaction was held not to be a mortgage by conditional sale where the original arrangement was a mortgage and the clause converting it into a sale on default operated as an impermissible clog on the right of redemption. The Court treated the default-to-sale stipulation as inconsistent with the mortgage bargain and invalid. It also held that a puisne mortgagee whose claim to recover the mortgage money had become time-barred could not sue to redeem prior mortgages, because the redemption right under Section 91(a) depends on a subsisting interest or charge in the property. The suit was dismissed and costs were awarded.

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Issues: (i) Whether Ext. F was a mortgage by conditional sale or whether the stipulation that it would operate as a sale on non-payment was only a clog on the right of redemption. (ii) Whether a puisne mortgagee whose right to recover the mortgage money had become time-barred could still sue to redeem prior mortgages.

Issue (i): Whether Ext. F was a mortgage by conditional sale or whether the stipulation that it would operate as a sale on non-payment was only a clog on the right of redemption.

Analysis: The transaction originated as a mortgage and did not satisfy the essential feature of a mortgage by conditional sale, namely that it must be an ostensible sale falling within Section 58(c) of the Transfer of Property Act, 1882. A stipulation converting the mortgage into a sale on default was treated as outside the mortgage bargain, unsupported by consideration, and inconsistent with the principle that time is not of the essence of a mortgage. Such a term was held to amount to an impermissible restraint on redemption.

Conclusion: Ext. F was not a mortgage by conditional sale, and the condition treating it as a sale on default was invalid as a clog on redemption.

Issue (ii): Whether a puisne mortgagee whose right to recover the mortgage money had become time-barred could still sue to redeem prior mortgages.

Analysis: The right under Section 91(a) of the Transfer of Property Act, 1882 depends on a subsisting interest or charge in the property. Once the mortgagee's remedy to recover the mortgage money is barred and no possession of the property exists, nothing substantial survives in the charge to support a right of redemption. The Court distinguished cases where a secured creditor was already in possession before limitation expired and held that such reasoning did not assist a mortgagee who became time-barred while remaining out of possession. The redemption right was treated as ancillary to the enforceable charge and could not survive its extinction for practical legal purposes.

Conclusion: The appellants had no subsisting right to redeem the prior mortgages after their claim under Ext. F became time-barred.

Final Conclusion: The appeal failed on both grounds, and the dismissal of the suit was affirmed with costs.

Ratio Decidendi: A puisne mortgagee without possession cannot invoke Section 91(a) of the Transfer of Property Act, 1882 to redeem a prior mortgage once the mortgage money claim is barred by limitation, because the right to redeem depends on a subsisting interest or charge in the property.

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