DALIP SINGH Vs. BAHADUR RAM

JUDGEMENT

(1.) This appeal arises out of a suit brought by the respondent for the recovery of Rs. 563 odd by the sale of a share in a village. The suit is based upon a document, dated the 31st of March, 1891, which, according to the respondent, effected a mortgage of the share, but which according to the appellants effected only a charge on the share. If there was a mortgage the suit is maintainable, and the order of the lower appellate court remanding the suit for trial on the merits is correct. If there was only a charge, the suit is barred by limitation, as was held by the court of first instance, and this appeal must be allowed.

(2.) The deed opens with a recital that the executant has borrowed Rs. 991 ; then follows a promise by him to pay that amount with interest at the rate of 2 per cent per mensem within a certain time, and after that there are the following words: Muakhiza aslo sud to yom-ul-wasul upar [description of the share] haqiyat win muqir...qaim rahega...lihaza...batarik tamassuk muakhiza-i- jaidad ka likhdya.

(3.) If it is a mortgage at all, it is a simple mortgage. In order that there may be a simple mortgage, there must be (a) a transfer of an interest in specific immovable property, (b) a personal undertaking by the mortgagor to pay the mortgage money, and (c) an agreement, express or implied, that in the event of the mortgagor failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold. The second requirement is satisfied. There is no express transfer of an interest in property, and there is no express agreement that in case of default the mortgagee may bring the property to sale. But in a simple mortgage the interest transferred is the right to have the property sold, and this need not necessarily be provided for in the deed in so many words ; it may be inferred from the language used and where such an agreement can be inferred, the first and third requirements are satisfied. We are asked to infer such an agreement from the use of the word muakhiza. It is conceded that this is not a word commonly employed to denote a simple mortgage. The words commonly used are rehn, kifalat and mustaghraq, and their grammatical variations. The root meaning of muakhiza is "taking," and the word is generally used in the sense of taking satisfaction or calling to account. Thus muakhizadar is a man who is responsible or called to account. There is nothing in the word which necessarily implies taking and selling. For what it may be worth we note that the word muakhiza is used in the authorized translation of Section 100 of the Transfer of Property Act for the word charge in the original. The words ordinarily used to denote a mortgage were well known in 1891, when the deed in question was executed. The word muakhiza does not necessarily imply a power of sale, and there is nothing else in the deed from which an intention to give a power of sale can be inferred. We are unable to hold that the deed conferred upon the creditor a power to bring the property to sale. In our opinion the deed is not a mortgage. We allow the appeal, set aside the decree of the lower appellate court and restore the decree of the first court. The appellants must pay the respondent s costs in all the three courts.