KRISHNA BHAICHAND Vs. HARI JANARDHAN

JUDGEMENT

(1.) The terms of the mortgage deed which in this case we have to consider are unquestionably of a somewhat doubtful character, and it is - therefore incumbent upon us to endeavour to ascertain the intention of the parties by scrutinizing that intention as disclosed in the deed itself : see Jafar Husen V/s. Ranjit Singh (1898) L.R.R.21 All. 4.

(2.) Now when one comes to read the mortgage deed, the first impression it produces is that it is an instrument of usufructuary mortgage. That is what it purports to be; that is plainly its general intendment and effect and that is what it ought to be considered to be, unless there are very clear indications to the contrary.

(3.) The only difficulty in the way of regarding it as a mere usufructuary mortgage is that there is a personal covenant to pay. That covenant is no doubt made on conditions, but still there is the promise to pay, and the question is whether that promise converts the deed into a deed of another character or not.