THE TRANSFER OF PROPERTY ACT 517
III. I NSTANCES OF CLOG ON REDEMPTION
I. The following clauses are clogs on Redemption :—
(1) Redeem during the life of the mortgagor.
(2) Redeem with his own money—not from any other person.
(3) Redeem by payment on due debt or the mortgage will become sale.
(4) Redeem on condition that mortgagor shall grant permanent lease to the mortgagee.
II. The following clauses are not deemed to be clogs on Redemption:—
(1) Not to redeem unless prior mortgages are redeemed.
(2) Not to redeem an usufructuary mortgage until after the expiry of 15 years.
(3) Postponement of the right to take possession after redemption for a reasonable and necessary period.
III. No hard and fast rule as to what is a clog and what is not:—
(1) The mere fact that the terms of a mortgage are hard, does not make the clause a clog.
(2) The test is whether it hampers the mortgagor in the exercise of his right to redeem in such a way as to place the right to redeem beyond his reach.
(3) If the clause is a clog, then it will not be enforced, even though it may be contained in a consent decree. The right to redeem cannot be said to have been waived by consent.
IV. The doctrine of clog on redemption relates only to the dealings which take place between the parties to the mortgage at the time when the contract of mortgage has been entered into. It does not apply to a contract made subsequently with each other.
That means that parties are not free at the time when the contract of mortgage is made to take away the right of the mortgagor to redeem.
But they are at liberty subsequently to alter the terms of the contract of mortgage and any clause which fetters the right to redeem will not be treated as a clog.
V. Due.
- Must be distinguished from payable. Money may be payable but not due.