(HAJI) MAHOMED HAJI WALI MAHOMED Vs. RAMAPPA

JUDGEMENT

(1.) JACKSON , A.J.C. 1. The question we have to decide is whether, in a Lahan Gahan mortgage, that is, a mortgage in which the remedy provided is foreclosure in default of payment by given date and in which the only remedy expressly given is that of foreclosure, there is by implication no covenant of personal liability. The reference has been made necessary by the decision in Gopikisan v. Mt. Mankuarbai A.I.R. 1924 Nag. 97 which applied Ram Narayan Singh v. Adhindra Nath Mukherji A.I.R. 1916 P.C. 119 as interpreted in Jiwandas Md. Haji Wali Md. v. Mt. Janki A.I.R. 1922 Nag. 58. According to Seth Gopikisan v. Mt. Mankuarbai A.I.R. 1924 Nag. 97 the Privy Council decision in Ram Narayan Singh v. Adhindra Nath Mukherji (2) must be considered to have overruled Govind v. Jagannath [1916] 12 N.L.R. 19, in which it was laid down that where in a mortgage-deed the remedy of the mortgagee is expressed to be foreclosure the mere fixation of a date by which the mortgagor undertakes to pay the mortgage-money does not amount to a stipulation binding him to repay the same within the meaning of Clause (a), Section 68, T.P. Act.

(2.) AS has been held in Jag Sahu v. Mt. Ram Sakhi Kuer A.I.R. 1922 Pat. 167 and Dattambhat Rambhat v. Krishnabhat [1910] 84 Bom. 462, the insertion in a usufructuary mortgage of a covenant by the mortgagor to repay the consideration money on a particular date may entitle the mortgagee to a personal decree against the mortgagor; but it does not follow that that would be the effect of inserting such a covenant in a mortgage by conditional sale or in a mortgage of a similar nature to one by conditional sale. It has been pointed out in Govind v. Jagannath [1916] 12 N.L.R. 19 that a Lahan Gahan mortgage does not come within the definition of a mortgage by conditional sale in Section 58 (c), T.P. Act. Nevertheless, the effect of a Lahan Gahan mortgage is the same as that of one by conditional sale and mortgages in forms similar to that of Lahan Gahan, such as "kutkubala" or "bai-bil-wafa," were re-cognized by their Lordships of the Privy Council in Balkishen Das v. W.F. Legge [1900] 22 All. 149, in a passage that occurs at p. 159, as standing on the same footing as mortgages by conditional sale. In that case their Lordships said that it is not necessary in such mortgages that the mortgagor should make himself personally liable for the repayment of the loan. Again, in Kalha Singh v. Paras Ram [1895] 22 Cal. 434, another Privy Council decision, the following occurs: In the next place, although an unqualified admission of a debt no doubt implies a promise to pay it, their Lordships are not prepared to hold that that is necessarily so where there is an express promise to pay in a particular manner.

(3.) IT has now to be considered whether the Privy Council have taken a different view in Ram Narayan Singh v. Adhindra Nath Mukherji A.I.R. 1916 P.C. 119. At p. 400 (of 44 Gal.) the following passage occurs: In considering this question it must be borne in mind (i) that a loan prima facie involves such a personal liability; (ii) that such a liability is not displaced by the mere fact that security is given for the repayment of the loan with interest; but (iii) that the nature and terms of such security may negative any personal liability on the part of the borrower.