BOARD OF REVENUE Vs. MOOPANNA SOMARAZU

JUDGEMENT

(1.) The question before us is whether documents, of which we have a specimen form here, are mortgage deeds of the description defined in Art. 33(a), Scheduel I-A of the Madras Stamp Act (VI of 1922) in these words: Mortgage deed... when possession of the property or any part of the property comprised in such deed is given by the mortgagor or agreed to be given.

(2.) In the Stamp Act (XVIII of 1869) the description ran differently. It was a mortgage deed of this class only when possession of property comprised therein was given by the mortgagor at the time of execution. Then in Act I of 1879, the words "at the time of execution" were transposed from the end to the beginning of the sentence and the description ran thus: When at the time of execution possession of the property or any part of the property comprised in such deed is given by the mortgagor or agreed to be given.

(3.) In the present Act, the words "at the time of execution" have been altogether dropped. Therefore we have only to consider whether possession of the property is either given by the mortgagor or agreed to be given under the document that is before us. The decisions in the Anonymous case (1884) I.L.R. 10 C 274 and Hinganghat Mill Co., Ltd. V/s. Rekchand Bhikamchand (1884) I.L.R. 8 B 310 (F B) being decisions upon Acts which are not now in force, serve rather as guides for the interpretation of the present Act than as authorities.The mortgage deed before us is in the form of an English mortgage. The mortgagor gives a certain parcel or piece of land to the mortgagee "have and to hold", "subject to the proviso for redemption" therein contained. Then there is a covenant that the mortgagee shall permit the mortgagor to retain possession of the premises so long as he shall make the annual payments as stipulated, the net result of which is that the mortgagor remains in possession and thus possession is not immediately given by the mortgagor of the property comprised in the deed. But there is a provision at the end of the document providing that, if default is made in payment of certain annual instalments, the mortgagee may at any time thereafter enter into and upon the said piece of land and premises and shall thenceforth quietly possess and enjoy the same. The question is whether this covenant amounts to an agreement to give possession. I think that the main agreement between the parties is that possession should not be given to the mortgagee in the first instance as the result of the execution of the mortgage deed and that this covenant for the mortgagee entering on the property in case of the mortgagor making default in payment is a subsidiary agreement which is only to take effect upon a certain contingent event happening which may never happen. Under these circumstances