Clog on equity of redemption: a long mortgage term cannot defeat the mortgagor's statutory right to redeem.

The right of redemption under Section 60 of the Transfer of Property Act is an inherent incident of a subsisting mortgage and cannot be defeated by contractual terms that prevent or unduly postpone redemption. A mortgage cannot be made irredeemable, and any stipulation that effectively takes away the mortgagor's right to redeem is void as a clog on the equity of redemption. Whether a term amounts to such a clog depends on the surrounding facts, including the parties' circumstances and the overall effect of the bargain. On the facts stated, the 99-year mortgage term was treated as oppressive and redemption as illusory, so the suit for redemption was not premature.

---

---

Issues: Whether the stipulation fixing the mortgage period at 99 years constituted a clog on the equity of redemption and rendered the suit for redemption premature.

Analysis: The right of redemption under Section 60 of the Transfer of Property Act is a statutory incident of a subsisting mortgage and cannot be defeated by a term inserted in the mortgage transaction that prevents or unduly postpones redemption. A mortgage cannot be made irredeemable, and any contractual stipulation that has the effect of taking away the mortgagor's right to redeem is void as a clog on the equity of redemption. Whether a particular term amounts to such a clog depends on the surrounding facts and circumstances, including the financial position of the mortgagor, the terms of the bargain, and the overall effect of the transaction. On the facts found by the courts below, the 99-year term, coupled with the circumstances in which the mortgage was created and the prolonged enjoyment of usufruct by the mortgagees, was treated as oppressive and as making redemption illusory.

Conclusion: The 99-year mortgage term was rightly held to be a clog on the equity of redemption, and the suit for redemption was not premature.

---