RAMDHAN SINGH Vs. RANJIT KHAN

JUDGEMENT

(1.) This was a suit to redeem a usufructuary mortgage, dated 17 May 1873. The mortgage provided for redemption at the expiration of ten years. The usufruct was to go against interest. The defendants pleaded that there were five other deeds and that the property could not be redeemed without paying up the amount due for principal and interest on the said five other deeds. The question for decision is whether this plea is good. The five other deeds are practically in the same form. The first is dated 27 November 1873, and is in the words and figures following: I, Ahmad Ullah, son of Muhammad Baksh, Sheikh by race, resident of Qasba Sikandrabad, District Bulandshahr, do declare as follows: That 24 bighas and 9 biswas pukhta of resumed land, situate in Khalisa mahal, village Kanora, pargana and Tahsil Sikandrabad, owned by me, is mortgaged for Rs. 700 to Umrao Khan, Dalmir Khan, Daljit Khan and Banjit Khan, sons of Darah Khan, Musalman Rajputs, residents and zamindars of village Kanora, pargana Sikandrabad, under the document, dated 17 May 1873, whereunder the mortgagees are up to this time in possession of the mortgaged property. I have now; in addition to the mortgage money, borrowed Rs, 200 in cash from the said mortgagees fixing interest at Re. 1-8-0 per cent, per mensem and agreeing that I would repay this sum, principal and interest, to the mortgagees along with the mortgage money when I obtain redemption of the mortgaged property on payment of the mortgage consideration, and have brought the same to my use. I therefore covenant in writing that I shall repay the aforesaid sum principal with interest, along with the mortgage consideration, and then the mortgaged property will be redeemed, and that redemption of the mortgaged property will is no way be obtained without the repayment of this sum. Is waste ye chand kalme batariq tamasuk mashrutul rehan wa qabzul wasul moblighan ke likhdiye ki sanad ho.

(2.) The plaintiff had obtained a simple money decreo against the mortgagor and had purchased the equity of redemption or mortgagors rights in the property with a notification of the claim under the usufructuary mortgage and the bonds tacked on to the mortgage. The first point for consideration is whether the deed set forth above operates as a mortgage or charge on the property. I think it certainly does operate as one or the other, and it is not very material to consider which. To hold otherwise would be to ignore the plain intention of the parties as expressed in the deed itself. Redemption of the usufructuary mortgage meant obtaining of possession by the mortgagor, and by the terms of the second deed redemption, that is possession, was only to be obtained on payment of the amount mentioned therein. Was there anything illegal in this? I think not. After the usufructuary mortgage had been execited, the equity of redemption remained with the mortgagor. He was entitled to deal with it as he thought fit and to repledge it to secure further advances. He did repledge the equity of redemption, and the transaction was carried out by an agreement that possession would not be given back to the-mortgagor until the amount of the further advances were repaid. Mortgage is defined by Section 58 of the Transfer of Property Act as the transfer of an interest "in specific immoveable property." A mortgage in the strict sense of this definition is rare in these provinces, and I think that the framers of the Act must have had in their mind the English idea of a mortgage. In England a mortgage is created by the transfer of an interest, generally a transfer of the mortgagor's own estate, followed by a proviso for redemption of the mortgaged property. In these provinces in what is called a simple mortgage there very seldom, if ever, is a transfer of any interest of the mortgagor. The mortgagor generally uses words equivalent to "I hypothecate" or "I pledge." He does not transfer the estate, he hypothecates. In a mortgage by conditional sale an interest U transferred, and in a usufructuary mortgage also the mortgagor, though he does not convey his estate, he transfers a right to possession which is perhaps "an interest)" within the meaning of the definition. A charge is defined by Section 100 of the Transfer of Property Act as being where immoveable property is by act of the parties or by operation of law made security for payment of money to another, and the transaction does not amount to a mortgage. In the present case the mortgagor agreed that the mortgagees might remain in possession until the amount of the original mortgage and the amount of the further advances were repaid. It might perhaps be urged that this was a transfer of an interest within the meaning of Section 58, the interest transferred being the right to remain in possession. However this may be, I am clearly of opinion that the deeds at least amounted to charges, Is there anything in the Act itself to prevent this? I think not. Section 60 deals with redemption and adds a proviso that redemption may be defeated if by the act of parties or by order of a court the right to redeem is extinguished. Section 61 seems to provide that a mortgagor can only insist on redemption of individual mortgages when the several mortgages comprised different properties. The law in England as to the rights of mortgagees making further advances is I think correctly stated at page 1168 of Coote on Mortgage, 7 edition. "It is a settled rule of equity that a mortgagee, whether his security is legal or equitable, shall not be deprived thereof without payment of all sums of money due to him from the mortgagor which form a general or specific lien on the land; and therefore if the mortgagee advance other sums of money to the mortgagor expressly by way of further charge, thereby creating a specific lien, or on a judgment, whereby an actual charge is created, or on statute, thereby creating a general lien, neither the mortgagor, nor generally speaking, any one claiming under him though for valuable consideration and without notice, is allowed to redeem without payment of the full amount advanced." It is said however that the subsequent deeds in the present case are clogs on the equity of redemption. The doctrine of clogging the equity of redemption is the creature of the English Courts of equity, and it would be strange indeed if the plaintiff, who comes here seeking equitable relief, should be allowed to set up such a doctrine to work what would be inequitable and to set aside a "settled rule" of the English Courts of equity. I know of no English case in which the doctrine of clogging the equity of redemption has ever been applied where the mortgagor had pledged his equity of redemption to secure further advances. Speaking generally the doctrine of clogging the equity of redemption is comprised in this that "a mortgagee will not be allowed as such to avail himself of the necessities of his debtor so as to obtain a collateral or additional advantage beyond the payment of principal, interest, and costs." Vide Coote on Mortgage, 7 edition, page 15.

(3.) The only question that remains to be considered is whether there is any binding authority of this Court standing in the way of the view I take. I think not. In the case of Allu Khan V/s. Roshan Khan (1881) I.L.R. 4 All. 85 is in favour of my view. The case of Muhammad Abdul Hamid V/s. Jairaj Mal Weekly Notes 1906 267 there was a usufructuary mortgage followed by a simple mortgage containing a covenant that the usufructuary mortgage should not be redeemed without redeeming the simple mortgage. Stanley, C.J., and Rustomji, J., say: "It appears to us that it would be altogether inequitable to permit the mortgagor, despite his express covenant to pay both debts together, to redeem one mortgage without redeeming the other. The relief which we are asked to give is equitable, and it is only just that we should see that the party to whom equitable relief is given should do equity and fulfil the obligations which he undertook. It has been contended that the covenant contained in the later mortgage for payment of both debts simultaneously is a clog on the equity of redemption and therefore unenforceable. But it seems to us that we should be extending the rule which forbids the imposition of a clog or fetter on redemption were we to hold that the agreement under consideration in this case falls under it." This case cannot be distinguished from the present case save for the fact that in the case quoted the second document was held to be a mortgage whereas in the case before us the document perhaps amounts to not more than a charge. The case of Bhikam Singh V/s. Shankar Dayal (1909) 6 A.L.J.R. 255 cannot be distinguished from the present case. There are no doubt some authorities in which perhaps a contrary view was taken. They may be distinguished from the present case on the ground of the particular construction placed on the particular documents by the courts. If those cases cannot be so distinguished, I cannot with all respect agree with them. If there is a conflict of authority, I think the conflict is such as to entitle us to consider the questions involved apart from authority. Alston, J.