SUJIR RAGHUNATHAIYA Vs. SOBINA SALDANHA ALIAS REBELLE

JUDGEMENT

(1.) Although a large number of decisions were quoted before us, we think that on a question of construction we should be guided in the first instance by the language of the instrument and by the facts of the particular case. There are circumstances in this case which justify the view taken by the courts below. In the first place, the conveyance is not an absolute one. The document begins and ends by saying that it is a conditional sale : Secondly there is a provision for payment of interest and the loan is spoken of as principal. Thirdly, the mortgagor is asked to pay the premia. Further there is no provision for reconveyance even, and lastly there is a provision for obtaining a receipt on payment of the loan. All these circumstances indicate that there is the relationship of creditor and debtor and also that of accountability between the parties. We think the courts below held rightly that the Ex. A was a mortgage.

(2.) Mr. Sitarama Row then raised an interesting question on which there is not much authority in India. He argued that the Judicial Committee enunciated in Pattabhiramier v. Vencata Rao (1870) 13 M.I.A. 560 a general principle applicable to all Indian mortgages whether they be of realty or of personalty, that the contract between the parties should be given effect to and that the rule " once a mortgage always a mortgage " ought not to be extended to India. But in Thambusami Mudali v. Hossain Rowthan (1875) I.L.R. 1 M. 1 this judgment was modified to the extent of holding that if parties had contracted with reference to the Madras course of decisions. Pattabhiramier v. Vencata Rao (1870) 13 M.I.A. 560 would not govern those transactions The Board further intimated that the legislature should settle the law The legislature did enact the Transfer of Property Act in 1882 but the provisions were limited to immoveable property. The learned vakil argued that as no express law was passed relating to the pledge of moveables, Pattabhiramier v. Venkata Row (1870) 13 M.I.A. 560 should govern the transaction It must be remembered that the above case related to immoveable property. There is no ground for presuming that the Judicial Committee intended to enunciate a rule applicable to moveable properties also by that judgment. Again, the rule in England seems quite settled that in the case of a pledge of moveables the light of redemption would subsist notwithstanding any Contract to the contrary. This was forcibly illustrated in the case of the mortgage of Policies in Salt v. Marquess of Northampton L.R. (1892) A.C. 1 There it was held that notwithstanding a construction that after the death of the mortgagor his legal representatives should have no light of redemption, the clause was held to be inoperative. In India, although there is no express law with Reference to moveables the principles embodied in the Transfer of Property Act have generally been applied to them Vide Mahamaya Debi v. Haridas Haldar (1914) I.L.R. 42 C. 455. Therefore, if we are to invoke the and of justice, equity and good conscience in dealing with such cases, whether we apply the English Law or accept the analogy of the Indian Law relating to immoveables, the result is that notwithstanding terms debarring redemption the mortgage can be redeemed if the trans action in its inception was a mortgage. We think it is undesirable to place moveables on a different footing from immoveables on a matter like this.

(3.) For all these reasons we confirm the decree of the District Judge and dismiss the second appeal with costs.