1. In our judgment, on the proper construction of the two deeds on which the respondent relies, by neither of them was such a security created as would entitle the mortgagee to call for the sale of the mauza.
2. By the first deed, executed on the 17th April 1860, in consideration of a loan of Rs. 710, the mortgagor gave the mortgagee one half of the profits of the mauza up to the end of the then current settlement, and ho charged the remaining one half share of the profits with the payment of the mortgage-debt and interest. It was also stipulated that the mortgagee should take the management of the mauza, rendering accounts to the mortgagor, and that, if the mortgagor should fail to pay the debt therein mentioned, or should take another loan and fail to pay it within the term therein mentioned, the mortgagee should remain in possession of the entire mauza until payment of all that might be due. This deed clearly created no hypothecation of the mauza itself. It assigned one half of the profits to the mortgagee for the period of the then current settlement, and charge the residue of the profits with the mortgage.
3. The original mortgagor having died, his heir executed a second deed on the 6th February 1873, in which he admitted the creation of the original charge and the existence of a further debt of Rs. 1,000. The further debt of Rs. 1,000 he undertook to discharge by payment of Rs. 500 in Chait, 1920 Sambat, and he agreed that the balance should be realised by the mortgagee from half the profits of the mauza in his possession according to the terms of tin: bond for Rs. 710, dated the 17th April 1860, and that, until the realisation of the amounts entered in both bonds as well as of any amount borrowed in future, the mauza should continue in the possession of the mortgagee, and that the mortgagor should have no power to sell, mortgage, nor alienate it. Had this last condition stood alone, it may be conceded that it would have been sufficient to constitute a simple mortgage of the estate,* and the respondent would have been entitled to an order for sale, but the clause must be read with what preceded it, and so road it is to our minds clear that the parties intended to mortgage the profits and not the mauza itself nor any share in it. This construction is favoured by the direction which immediately follows the agreement not to alienate, and which is to the effect that an arrear of revenue which had been defrayed by the mortgagee should be realised from the profits. We must therefore bold that the respondent is not entitled to the relief lie seeks in this suit, and reversing so much of the decree of the Court below as decreed the claim in part we must dismiss the suit with costs.
* See Raj Kumar Ramgopal Narayan Singh v. Ram Dutt Chowdhry 5 B.L.R. F.B. 264 : S.C. 13 W.R. F.B. 82 Where it was held that a bond for the payment of money containing an agreement by the obligor not to alienate certain lands until such money was paid, operated as a mortgage of such lands. See also Martin v. Parsram H.C.R. N.W.P. 1867 p. 124.