RANGASWAMY AYYANGAR Vs. VEERARAGHA VACHARY

JUDGEMENT

(1.) The first question argued in this appeal relates to the alleged invalidity of the mortgage on the ground that it was not properly attested. This question, in my opinion, has not really been considered by the District Munsif in his judgment and he has given no decision about it. He says no doubt in paragraph 10 " P.W. Nos. 1 and 2 have both attested Exhibit A Their evidence shows that they attested Exhibit A at the request of defendant and that they were not present at the time of execution of Exhibit A by the defendant. In his written statement, defendant did not put plaintiff to proof of the suit mortgage-deed; Exhibit A. Plaintiff appears to have put these two witnesses into the box only to prove the consideration for Exhibit A. The fact that P.W. Nos. 1 and 2 did not see the defendant execute Exhibit A by itself does not count much for defendant. Taking the evidence and the probabilities into cons deration, I came to the conclusion that defendant has miserably failed to prove his case: I therefore, find the first issue against the defendant." The first issue dealt only with the question of cons deration. Now the District Munsif was quite right in giving no decision as to the question of validity. The defendant did not raise this point in his written statement in the suit; in paragraph 6 of that statement he treated the mortgage as valid; he said nothing about its invalidity in his own evidence; the trial proceeded on the footing that the deed, was a valid mortgage and, on that basis the whole trial was closed. If, as is stated, the matter was referred to in the arguments before the District Munsif, no request was made that an issue should be framed. If an issue had been framed the witnesses P.W. Nos. 1 and 2 and the defendant might have-been properly questioned about it. The evidence of P.W. No. 2 on the point is ambiguous, and certainly requires amplification. There was another attestor who was not axamned as a witness in the case and the plaintiff might certainly have been able to prove that there was proper attestation. In the case reported as, Sricharan Bhandari V/s. Makhan Lal Bhandari 51 Ind. Cas. 378 : 35 P.R. 1919 : 78 P.L.R. 1919 it was held that the objection that a mortgage-bond is not duly attested cannot be allowed to be taken for the first time in the Appellate Court, as it raises a question of law and fact. In the present case, the objection was not raised properly before the District Munsif and the Subordinate Judge was right in d sallowing it. We have been referred by the appellant to some cases. Shimu Palter V/s. Abdul Kadir Rowthan 16 Ind. Cas. 250 : 35 M. 607 : 16 C.W.N. 1009 : 23 M.L.J. 321 : 12 M.L.T. 338 : (1912) M.W.N. 935 : 10 A.L.J. 259 : 14 Bom. L.R. 1034 : 16 C.L.J. 596 : 39 I.A. 218 (P.C.), Vadla Nagiah V/s. Valuru Divakara Mudaliar 41 Ind. Cas. 585 : (1917) W.N. 583 : 6 L.W. 147, Muniappa Chettiar V/s. Vellachamy Mannadi 49 Ind. Cas. 278 : (1918) M.W.N. 853 : 25 M.L.T. 10 : 9 L.W. 5 but in the cases an issue had been framed in the Trying Court with reference to the quest on of validity and that distinguishes. those cases from the present case. The respondent has referred us to Sotish Chandra M%tra V/s. Jogrndra Nath Mahalanobk 34 Ind. Cas. 862 : 44 C. 343 : 20 C.W.N. 1044 : 24 C.L.J. 175. That was a case which dealt with the question of proof of execution and not with the question of validity but it" is there pointed out that the admission of the party to the document of its execution would dispense with the necessity of all further proof as against him. This is of some importance as indicating that in such a case it is only where the question of invalidity is raised that it would be necessary to go into evidence with respect to the attestation. The question was not properly raised before the District Munsif. The evidence on that point before him was incomplete, and even as it stood, did not establish the fact that Exhibit A was not duly attested, and on the record the District Munsif was not bound to frame an issue and he was not asked to do so. The Subordinate Judge rightly disallowed the question and it cannot be allowed to be raised here., The second point argued in this appeal is that in Exhibit A, the mortgage-deed, there is no personal covenant on the part of defendant to pay. Several cases have been referred to, but where it is a question of construction of a document cases are not very helpful, for each document has to be considered on its own merits. Exhibit A recites "I have this davusufructuarily mortgaged to you Survey No. 500 A 1 acre and 5 cents of land which my wife Ranganayakiammal was enjoying and which I have got by exchange and am enjoying in the village of Poundareekapuram attached to Thiruvadamarudui Miganam, Tiruvadamarudur Sub-Distriction Kumbakonam Taluk and the amount, which I got thereon as a loan, is Rs. 1,000 you shall yourself enjoy the said land from this date in lieu of interest and having paid the amount of the principal by 7 July 1917 having endorsed on this deed I shall enjoy the said land. If the amount be re-paid at the cultivation season of any Aui month after the due date on which it falls due the same must be received in. full and the land restored to my possession.

(2.) The case in Patte Muhammad V/s. Davood 30 Ind. Cas. 569 : 39 M. 1010 : 18 M.L.T. 209 : 20 M.L.J. 525 : (1915) M.W.N. 852 has been referred to but in that case it seems to have been taken for granted that there was no covenant to pay. In the case Ranga Pillai v. Narasimma Ayyangar 47 Ind. Cas. 852 (1998) M.W.N. 672 the report does not contain the full terms of the document and the judgment only construes the proviso which is similar to the last sentence in Exhibit A, and states that there are no other recitals in the deed to suggest that there was any personal covenant. I do hot th nk that the case in Kunhimai Kutiy Beari v. Halekote Aisabi 62 Ind. Cas. 723 : 13 L.W. 434 helps us. But the case in Sivakami Ammal v. Gopala Samndram Ayyan 17 M. 131 : 4 M.L.J. 50 : 6 Ind. Dec. (N.S.) 90 is Useful, as it shows that the proviso at the end of Exhibit A is simply to limit the discretion of the mortgagor to re- pay the. money at a season when the land could not be bringing the mortgagee any profit. The case in Kangaya Gurukal V/s. Kalimuthu Annavr 27 M. 506 (F.B.) Seems to me very much in point. It deals with a document drawn up in terms very similar to the deed under consideration, and decides that there was a personal covenant to pay. Exhibit A fixes a date for payment, and recites that the mortgagor having paid the money by the date will take back the land, I am satisfied there is a personal covenant to pay. The appeal must, therefore, be dismissed with costs. Odgers, J.

(3.) With regard to the first point, I would content myself with saying that it is not proved on the evidence that the mortgage-deed (Exhibit A) was not duly attested according to law. The plaintiff's witnesses were called to prove a totally different point, now given up by the appellant, and the evidence of one of them may not be inconsistent with due attestation. There was also admittedly a third attestor who was not called. The question of the validity of the mortgage was never put in issue, was in fact admitted by the defendant in his written statement. It is obvious that it would be dangerous to remit the case tot a finding on this question now. even supposing it were open to us to do so. The point fails. As to the covenant in Exhibit A we have had the material pains of Exhibit A re-translated by the Chief Interpreter. They now appear as hereunder set forth. The mortage is either a pure usufructuary mortgage or a combination of simple and usufructuary as recognised in Section 98, Transfer of Property Act, The appellant contends it is the former and that the clauses having paid the principal amount before the 7 of July 1917, and having credited (endorsed) on this deed, I. shall enjoy the said land" and "if even after the fixed time money is paid at the cultivation season of any Ani month (you shall) receive in full and deliver the land to my possession" (the Chief Interpreter's translation) are undoubted proof of the benefit of the mortgagee, namely, that he may have (1) the benefit of a fixed sum and 16 Ind. Cas. 250 : 35 M. 607 : 16 C.W.N. 1009 : 23 M.L.J. 321 : 12 M.L.T. 338 : (1912) M.W.N. 935 : 10 A.L.J. 259 : 14 Bom. L.R. 1034 : 16 C.L.J. 596 : 39 I.A. 218 (P.C.) may not be called upon to deliver up possession in the middle of a cultivat:on season. I cannot agree. The document Exhibit A is executed by the mortgagor Rangaswamy Aiyangar (the appellant) alone and the reasonable construction is in my opinion that he took upon himself obligations by these clauses. The words used are very similar to those considered in Kangaya Gurukal V/s. Kalimuthu Annavi 27 M. 506 (F.B.) where it was held they constituted a proviso to pay. c.f. also Sivakimi Ammul V/s. Gopala Savundram Ayyan 17 M. 131 : 4 M.L.J. 50 : 6 Ind. Dec. (N.S.) 90 also a Full Bench ruling The case in Patte Muhammad V/s. Dwood 30 Ind. Cas. 569 : 39 M. 1010 : 18 M.L.T. 209 : 20 M.L.J. 525 : (1915) M.W.N. 852 was an instance of an anamolous mortgage under Section 98, Transfer or Property Act, and the Court held that the words of the document must prevail and that Section 60, Transfer of Property Act, had no application. In Ranga Pilai Vs. Narasimma Ayyangar 47 Ind. Cas. 852 (1998) M.W.N. 672 there was no definite date fixed for re-payment as here and it was held that the word as to re-payment were entirely for the benefit of tie mortgagor who Could pay when he liked. In Lurhmeshaf Singh V/s. Dookh Mochan Jha. 24 C. 677; 12 Ind. Dec. (N.S.) 1121 the stipulation was in a different form and the learned Judges held that the words used only preserve a right of redemption to the mortgagor. If this case conflicts with the Madras Full Bench decisions, we are, of course, bound by the latter. As my learned brother has pointed out, a document of this sort must be construed with reference to its own terms and circumstances. 1 think here there is a distinct promise in Exhibit A to pay by the 6 July 1917, and that the second clause is not inconsistent with this view as held by the Full Bench, in Sivakami Ammal V/s. Gopala Savundram Ayyah 17 M. 131 : 4 M.L.J. 50 : 6 Ind. Dec. (N.S.) 90.