Charles Sargent, Kt., C.J.
1. The important question, in this case is, whether the plaintiff is entitled to redeem the property in question without also paying the amount of a simple contract debt owing to the mortgagee by the original mortgagor from whom the plaintiff derives his title. It was admitted for the appellant that the original mortgagor, Krishnarav, could have redeemed without paying it; but it was contended that the conveyance to the plaintiff, Balvant (exhibit 2), under which he derives his title, was a voluntary conveyance, and that, as Krishnarav had by that instrument made over all his property to plaintiff in his lifetime with the obligation of paying all his debts, the Court ought to allow the mortgagee to tack on the debt in question to avoid circuity of actions on the same principle as by English law a mortgagee is entitled to take on a simple contract debt as against executors or volunteers under the mortgagor: Rolfe v. Chester 20 Beav. 610. It was also slid that the deed created & trust for the payment of debts, and that as there were no other creditors to be paid, the defendant should be allowed to tack on the debt.
2. Now, exhibit 2 is a native document of a very informal character. After reciting that Krishnarav was well stricken in years and without sons or any hope of finding a boy to adopt; that he had debts, to secure which he had mortgaged his property, and that 'living had hence become hard', it proceeds as follows:
3. 'As for the desires of my mind [they are]: 1, that I should be free from debts; 2, that I should be comfortable in living; 3, that a good provision should be made for my declining age; 4, that all the estate should remain in my own family (swagotra); 5, and that my name should, somehow or other, remain famous, And after such arrangements [as these] are made, I should spend my [remaining] days in the service of God. I made known these desires to my bhaubands more closely related than yourself. They thought over the matter for these two years. But as they were void of means, such as money, &c.;, and as my daughters, too, were equally helpless, I lost all hope of getting any help. It is difficult to discharge the debts and [also] to manage the household within the remaining estate. Hence, though you were one degree more distant in lineage, knowing that your father was on friendly terms with me, you have been behaving towards me up to this day with the same regard for me. Being convinced of this and being aware of your competency, I threw [myself] a burden upon you, with confidence for the fulfillment of the aforesaid desires. Thereupon [you] said [to me] If provision be made to release [you] from debt, other matters will, by [your] blessing, be easily accomplished. And accordingly you are to execute a separate document to me.
4. Thus considering in a satisfactory manner, I, while in sound mind, and with full apprehension and understanding, have made over to you the absolute ownership of the entire estate, and have [also] informed you of the debts and outstandings. It [i.e., the particulars there of] is as follows:
1. The particulars of debts due up to this day to other persons besides yourself, On mortgage, loans, bonds, and without bond are as follows:
Rs. a. p.
2,631 11 9 The total amount due to Ragho Govind Parajpe
is Rs. 2,831-11-9. deducting therefrom Rs. 200
which are to be paid directly by Kaleshwar
Gopal Gole, [there remains a balance] Rs.
100 0 0 due to Dhondaji, son of Somaji Navala Mali.
50 0 0 due to Anant Govind and Vishvanath Govind
Bhopale Joshi Kulkarni.
25 0 0 due to Vasudev Vithal Gadre.
25 0 0 due to Dhondiba, son of Ranoji Setge.
600 0 0 due to my own daughters and other miscellaneous
3,431 11 9
In all rupees three thousand four hundred and thirty-one and annas eleven and three-quarters are due. You are directly to pay the same, together with interest thereon according to law, to several persons at your convenience. For the purpose of paying it off I have given you the ownership of the property, which is as follows:Particulars thereof are (as follows: * * * * * * * * * The absolute ownership of the estate mentioned in the first paragraph is given to you in consideration of [your having undertaken to pay off my] debts, and the papers, sanads, takids, sale-deeds, and dumalapatras, and deeds of gift, and each and every paper of evidence in respect thereof have been made over to you along with a separate index [ferist]. Except the debts written as aforesaid there is no occasion under this deed to pay the debt due to yourself.
5. Such being the document, it does not, we think, as was contended for the defendant, create a trust for creditors; on the contrary, the object was that the family property might be preserved, but, we think, due effect cannot be given to the whole of the instrument, unless it be construed as a conveyance to plaintiff charged as between him and Krishnarav with the payment of Krishnarav's debts. During Krishnarav's life the creditors could not (in the absence of any communication between plaintiff and the creditors capable of being construed as an admission by him that he held the property as a trustee for them) claim to be paid under this instrument, although possibly they might impeach it. However, on Krishnarav's death, his creditors would be entitled in an administration suit to have the charge of Krishnarav's debts enforced in their favour, and under these circumstances it being admitted that the defendant is the only unpaid creditor, or at any rate that the property is far more than sufficient to pay them, we think that the principle established in the above cited case may well be applied, and so avoid the circuitry of suits which would otherwise be necessary. As to mortgage, exhibit 64, we cannot interfere with the District Judge's finding of fact that Krishnarav had acknowledged the mortgage debt as his own. The decree must, therefore, be reversed; and it is hereby ordered that the District Judge do take an account of what may be found due in respect of monies lent to the deceased Krishnarav by the defendant on personal security, and that in the event of the plaintiff paying to the defendant the sum so found due on taking the said account together with the sum of Rs. 1,926-8-0 found by the District Judge to be due on the mortgage debt and the costs of suit and both appeals within six months that he do recover possession of the mortgaged lands from the defendant, and that in default of his so paying as aforesaid that he do stand foreclosed.