MOHAN LAL Vs. INDOMATI

JUDGEMENT

(1.) This is a Letters Patent appeal, preferred by the plaintiffs, arising out of a suit for sale brought upon the basis of a document, dated the 12th of May, 1884, executed by Chaudhri Raj Kumar, which the plaintiffs put forward as a deed of simple mortgage. The learned Judges who constituted the Bench before whom the appeal came, have differed in opinion, hence the present appeal. The question which we have to decide is whether or not the deed of the 12th of May, 1884, constitutes a deed of simple mortgage. If it does, then the suit, having been brought within the period allowed by Section 31 of the Limitation Act, is within time, and the case will have to go back to the court below for trial on the merits. If, however, it does not, the suit must fail and this appeal must also be dismissed. On the date in question Chaudhri Raj Kumar borrowed Rs. 1,000 from Baldeo Das and Sheo Dat Rai, and executed the document in suit. The suit is to recover the amount due including interest. The total amount due was something over Rs. 7,000. The claim is laid at Rs. 6,000. The decision of the case in my opinion, depends simply upon the meaning that can be attached to the language of the deed. The document (taking the essential portions) runs as follows: "I have borrowed Rs. 1,000, from so and so "..." and 1/3rd out of the entire 20 biswas zamindari property in mauza Kankauli, pargana Bhojpur, belonging to me, and have brought the same to my use. I therefore covenant and give it in writing that I shall repay the aforesaid amount with interest, etc. Until the repayment of the aforesaid amount I shall not transfer the aforesaid property either by sale, mortgage, gift, security or any other way; if I shall do so, then such transfer shall be invalid, I have therefore executed these few presents by way of a bond (tamassuk) for Rs. 1,000 so that it may serve as evidence and be of use when needed." The court below dismissed the claim, holding that the above document was not a deed of mortgage. On behalf of the plaintiffs it is urged before us that there has clearly been some omission in the fairing out of the document and that the words "rehan kiya" or "maqful kiya" ought to have been there, that the intention to create a mortgage, is shown by the fact that the executant relates in the body of the document that he will not transfer the property mentioned therein until the debt has been repaid; and that if such transfer is made, it should be deemed invalid. A large number of cases have been quoted to us, but it seems to me that the decision of the case depends simply upon the meaning which is to be attached to the document, the intention of the parties being derived from the language that they have used in expressing it. In the case of a simple mortgage there is a transfer of an interest in specific property and a promise by the mortgagor to pay the mortgage money, and an agreement, express or implied, that if the money be not paid according to the contract, the mortgagee shall have a right to have the mortgaged property sold. In the document, as it stands, I personally am unable to find the transfer of any interest whatever to the moneylender, nor does the language disclose to me that the executant of the deed gave to his creditor a right to put the property to sale. It is impossible to read into the document the words which we have been asked to read into it, as it is also impossible to read into it other words which have been held in more cases than one in this Court, not to denote a mortgage but merely a charge. The mere fact that the executant of the document agreed not to transfer the properly until he had repaid the debt, does not constitute the deed a mortgage, nor does it necessarily indicate that a mortgage and only a mortgage was intended; nor does it give a right to put the property to sale. If anything, it is merely a restriction of the executant s right to sell his property : that is not the same as giving the creditor a right to put the property to sale. In the case of a simple mortgage, such language is quite unnecessary. The mortgagee can always have the property sold no matter into whose hand it may go. Lastly, there is the fact that the executant to this document himself describes it not as a mortgagee-deed but as "tamassuk," a word commonly used in this province, to denote a simple money bond. In my opinion this document by no means can he held to constitute a mortgage, and it is very doubtful also whether it can be said to create a charge on the property; but even if it could be said to do the latter, the present suit admittedly would he barred by time and would fail.

(2.) For these reasons I would dismiss the appeal, holding that no mortgage has been created. Mohammad Rafiq, J.

(3.) I am also of opinion that the deed of the 12th of May, 1884, does not create a mortgage in respect of the property mentioned in it. It purports to have been executed by one Chaudhri Raj Kumar in favour of Baldeo Das and Sheo Dat Rai in lieu of Rs. 1,000. The language of the deed is involved and at one place is not quite intelligible. After the usual recital of the names and parentage of the borrower and the lenders and the amount of the loan, the deed refers to certain property without saying anything as to whether the property is to be security for the loan. It then mentions convenants as to repayment and rate of interest for and after the period for which the loan is taken and an undertaking by the borrower not to alienate the property by sale, mortgage, gift, or in any other way till repayment of the loan. It is admitted, and indeed it is clear from its language that the document does not in express terms create a mortgage on the property of the executant.