AMARCHAND LAKHMAJI Vs. KILA MORAR

JUDGEMENT

(1.) The mortgage-bond in this case puts the mortgagee in possession of the mortgaged property, and authorizes him to retain possession until payment of the mortgage-money, the mortgagors being given credit for all profits recovered from the land over and above the Government assessment; so far it is a usufructuary mortgage within the meaning of Clause (d) of Section 58, Transfer of Property Act.

(2.) The deed also contains a personal covenant by the mortgagor to pay the mortgage-money and an implied agreement that in the event of non-payment the property shall be sold (the debt is to be recovered from the mortgaged land and from the persons and other property of the mortgagors). So far it is a simple mortgage within the meaning of Clause (b) of Section 58, Transfer of Property Act.

(3.) As such, the rights and liabilities of the parties should be determined as laid down in that section, by the contract as evidenced in the mortgage-deed, and, so far as such contract does not extend, by local usage.