RAM CHAND SUR Vs. ISWAR CHANDRA GIRI

JUDGEMENT

(1.) This reference has been made in connection with a suit to enforce a mortgage security. On the 9th February 1908, the first two efendants, who are described as cultivators by conation took a loan of paddy from the plaintiff who is another cultivator. In the document, which was executed, the paddy was stated to be worth Rs. 300, and the borrowers agreed to pay interest on the loan in paddy at a specified rate. The paddy borrowed, together with interest thereon in the shape of paddy, was made returnable on the 12th February 1909. It was further tipulated that if the paddy was not returned within the time fixed, interest at the prescribed rate would be paid up to the date of realization. As security for realization of the said paddy, the borrowers hypothecated specific immoveable properties. The bond finally provided that, in the event of default in the payment of paddy, the mortgagee would be entitled to take steps according to the law in force, and to realise the claim with costs and interest from the properties under mortgage as well as from other moveable and immoveable properties by attachment and sale the conclusion, as at the commencement, the document was described as a simple mortgage bond for a loan of paddy," The borrowers neither repaid the paddy lent nor the interest due thereon in the Bhape of paddy. Thereupon, on the 20th July 1916, the creditor instituted the present suit for recovery of Rs. 998, as the value of the paddy lent and the interest thereon, by sale of the hypothecated properties. The claim was resisted on the ground, amongst others, that it was barred by limitation. In the Trial Court, the plaintiff attempted to prove that the defendants had delivered Ronac paddy to him in 1913 on account of interest; this, however, was not established, and as the same view was taken, when the matter went on appeal, no further reference need be made to the alleged payment. The court of first instance dismissed the suit as barred by limitation, on the ground that the six years rule prescribed by Article, and not the twelve years rule provided in Article 132 was applicable. The Subordinate Judge adopted the same view and confirmed the decree of dismissal. On second appeal to this court, the Division Bench came to the conclusion that there was a conflict of judicial opinion upon the point of limitation raised in the suit ,and referred the following question for decision by a Full Bench: Whether a suit to recover the value if paddy charged upon immoveable property, as suit to enforce payment of money charged upon immoveable property within the meaning of Article 132 of the Limitation Act.

(2.) For the solution of the question referred, it is necessary to analyze the nature of transactions of this class, which, as appears from the cases in the books, are by no means infrequent among agriculturists in the districts of Kidnaper and Banker. A cultivator kes a loan of paddy which he agrees to re pay, with additional paddy in the shape of interest for use of the paddy borrowed by him. The creditor requires real security in addition to the personal undertaking of the borrower, for the due performance of the obligation. The orrower thereupon gives his immoveable property by way of mortgage. It need not be disputed that the primary intention of the parties to such a transaction is, that the debt should be discharged by re payment of paddy, but it is equally clear that they also intend that, in the event of default of delivery of paddy, the mortgagee would be entitled to the market value thereof. When the deed recites that the land is given to secure payment of the paddy principal and interest), the essence of the matter is that the land is made security for the value of the paddy, because upon failure to deliver the paddy, the mortgagee becomes entitled to recover the price thereof by the sale of the land; in other words, the parties contemplate that, should it be necessary for the mortgagee to enforce his security, the land would be liable for the value of the paddy lent as well as of the paddy payable as interest. A transaction of this character falls within the comprehensive definition of a mortgage contained in Section 53(a) of the Transfer of Property Act, namely, "the transfer of an interest in specific immoveable property, for the purpose of souring the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability." The parties in the case before us, entered into an engagement which, if not performed by the delivery of the paddy, would give rise to a pecuniary liability. We ether construction can reasonably planed on the transaction. The parties could net have intended that, in the event of default in the delivery of paddy, the Court should sell the mortgaged property, and, for the benefit of the plaintiff, procure paddy from the market with the sale proceeds which, according to our Code of Procedure, must be money, the only recognised medium of exchange. From this point of view, it is a reasonable construction of Article 132 to hold that in a case of this description the money value of the paddy was charged upon the mortgaged premises.

(3.) An interesting analogy is furnished by stock mortgages which are treated as mortgages, even though what has to be re-paid is not money but stock. Precedents are set out in all standard works on Convincing, for example, in Davidson, Volume II, Part II, page 624, in By the wood and Jarman, Volume III, page 1063, in Key and Bphin stone, Volume I, page 150, and in Prideful, Volume I, page 82). Thus, in Forrest v. Elvoes (1799) 4 Ves. 492 : 31 E.R. 525 : 4 R.R. 269 there wag a transfer of stock by way of loan upon bond with a condition to replace the stock six months after the date and in the meantime to pay interest at 5 percent; the stock was not replaced and became depreciated; the oblige was held entitled to the value of the stock at the time fixed for the transfer See also Goddard v. Lethbridge (1853) 16 Beav. 529 : 51 E.R. 883 : 96 R.R. 254. similarly, in Marthur v. Seaorth (1810) 2 Taunt 257 : 11 R.R. 559 : 127 E.R. 254 it was ruled that, on failure to re place the stock, the plaintiff was entitled at his option to the price at the day when it ought to have been replaced or the price at the day of the trial See also Shepherd v. Johnson (1802) 2 East 211 : 102 E.R. 349 Again, in Blyth v. carpenter (1866) 2 Eq. 501 : 35 L.J. Ch. 823 : 12 Jur. (N.S.) 898 : 15 L.T. 154 : 15 W.R. 3. where the mortgagor covenanted to re place on a specified day an amount of stock lent him by the mortgagee and the mortgage was allowed to continue beyond the date fixed, it was ruled that the mortgagor might redeem on transferring to the mortgages the original amount of stock and was not bound to pay the amount which it would have cost him to replace the stock on the prescribed day, See also Pell v. DeWinton (1857) 2 De G. & J. 13 : 27 L.J. Ch. 230 : 4 Jur. (N.S.) 225 : 6 W.R 179 : 119 R.R. 5 : 44 E.R. 892.: Whitney v. Smith (1869) 4 Ch. App. 513 : 20 L.T. 468 : 17 W.R 179 : 119 R.R.. 5 : 44 E.R. 829, Bromley v. Kelly (1870) 39 L.J. Ch. 274 : 18 W.R. 374. These transactions all amounted to valid mortgages, although what was secured was, not the repayment of what might be strictly called money advanced or to be advanced by way of loan, or an existing or future debt, but the performance of an engagement which might give rise to a pecuniary liability. Finally, no plausible reason has been assigned why a narrow construction should be placed upon the word money" or the expression "money charged" in Article 132 of the Limitation Act. The word money "is comprehensive enough to include, not merely money which has been advanced or will be advanced by way of loan, or money which is due on account of an existing debt or will become due on a future debt, but also money which has or will become due on account of non performance of an engagement that might give rise to a pecuniary liability. If such money is secured by a mortgage of immoveable property, the suit to enforce the security is obviously a Suit for recovery of money charged on immoveable property within the meaning of Article 132 of the Limitation Act. It may be pointed out that, notwithstanding the famous definition of money given by Baron Gilbert in Shelmers case (1725) Gilbert 200 : 25 E.R. 139, the tendency of modern cases has been to place a wide interpretation on the term "money" as including not merely what would be technically considered cash" but also whatever is redeemable by money or saleable for money : Gallini v. Noble (1810) 3 Mer. 691 : 36 E.R. 265 Brennan v. Brennan (1868) 2 Lr. R. Eq. 430, conly v. Qreene (1870) 5 lr. R. Eq.. 430, Smith, In re Henderson Roe v. Ritehms (1889) 42 Ch. D. 302 : 58 L.J. Ch. 860 : 61 L.T. 363 : 37 W.R. 705, Sarojini Dassi v. Gnanendra Nath Das 33 Ind. Cas. 102 : 23 C.L.J. 241 recently affirmed by the Judicial Committee, Gnanendra hath Das v. Surendra Nath Das 61 Ind. Cas. 323 : 24 C.W.N. 1026 : 28 M.L.T. 453 : (1920) M.W.N. 450 (P.C.), Emperor v. Govinda Baban Babie 27 Ind. Cas. 178 : 16 Bom. L.R. 683 : 16 Cr. L.J. 114 though indications in favour of a restricted construction are sometimes not altogether wanting; Langdale v. Whitfeld (1858) 4 K & J. 426 : 27 L.J. Ch. 795 : 4 Jur. (N.S.) 706 : 6 W.R. 862 : 70 E.R. 178 : 116 R.R. 388, Willis v. Plaskett (1841) 4 Beav. 5 Jur. 572 : 49 E.R. 318 55 R.R. 54 cntmanney v. Butcher (1823) 6 T & R.260 : 24 R.R. 42 : 37 E.R. 1098, Harriton v. Paynter (1840) 6 M & W. 387 at P. 390 : 8 D.P.C. 349 : 9 L.J. Ex. 169 : 4 Jur. : 488 : 151 E.R. 462. But whatever doubt may arise upon the construction of other Statutes, it is, we think, fairly clear that in Article 132 of the Limitation Act the expression money charged eponym moveable property" includes money due for non-performance of an obligation when such money is secured by a mortgage on immoveable property.