MAHABIR SINGH Vs. JAG MOHAN LAL

JUDGEMENT

(1.) In this case I have to construe two documents of the 12th of January 1887 and the 29th of April 1890. In my opinion when the Courts are asked to decide the construction of one or more documents taken together and to declare the legal result, two essential considerations have to be borne in mind: (1) What is reasonably to be taken to have been the intention of the parties when they made the contract in question, assuming them to be ordinary reasonable business people, one of, whom is willing to give his pro-party as security for an advance and the other of whom is willing to advance money upon reasonable security? Secondly, does the language used by the parties themselves fairly represent or carry out that intention?

(2.) On the 12th of January 1887 the mortgagor usufructuarily mortgaged the properly which was carefully described and set out in the deed for a sum of Rs. 188. That document contained the ordinary provision that the mortgagee should pay himself out of the usufruct and there was, therefore, no provision for interest, and upon payment of the amount secured the mortgagor was entitled to redeem. Three years afterwards the same parties came together again, an additional loan of Rs. 180 having been made in the meantime by the mortgagee. That additional loan had been made without any security. Nothing is found as to how or why the second bond was entered into, and one can only make the natural presumption that the mortgagee insisted on having some security. To that the mortgagor must have consented and so the document of the 29th of April 1820 came to be drawn up If the respondent s contention were correct that this second bond was a mere simple mortgage or hypothecation by way of a second charge upon the property which had already been charged by the existing unpaid mortgage and that the rights and obligations under it were to be independent altogether of the conditions of the existing mortgage except that the existing mortgage was prior in time, I cannot understand why they should have troubled to refer to the previous transaction at all. However, great care was taken to set out the existing state of things under the existing mortgage. The mortgagee was already in possession as a usufructuary mortgagee. The amount of the fresh lean which had been made is added to the principal due under the existing mortgage and the mortgagor goes out of his way, not merely to covenant that he shall not be entitled to redeem the existing mortgage until the payment of the additional loan has been discharged, but he takes the trouble to describe the document as a further charge. Further to what P Of coarse, further to the existing usufructuary mortgage. All I can say is that, in my view, if the parties had wanted to make a further charge for a fresh loan under the original mortgage, I do not know that they could have used better language. To avoid any possibility of mistake the numbers of plots mortgaged were specifically set out. I am told that the document is even stamped as a usufructuary mortgage. If this is so I should have thought it was conclusive as to the intention of the patties, but I am satit6ed by the language they usad.

(3.) It happens sometimes that, where the language is ambiguous or a party has been trapped into using language which probably does not represent his real intention, the Court is forced by the terms actually used to give effect to what it may consider inflicts hardship, but there is to straining of language and there can be no hardship in a case such as this, where the party seeking to escape from his liability has, by his own language, undertaken that he will not dispute it. In this case the respondent who is disputing this liability contracted solemnly and I think with deliberate intention that he would not be entitled to redeem until the two consolidated sums had been paid.