1. This is a Letters Patent appeal, preferred by the plaintiffs, arising out of a suit for sale brought upon the basis of a document, dated the 12th of May, 1884, executed by Chaudhri Raj Kumar, which the plaintiffs put forward as a deed of simple mortgage. The learned Judges who constituted the Bench before whom the appeal came, have differed in opinion, hence the present appeal. The question which we have to decide is whether or not the deed of the 12th of May, 1884, constitutes a deed of simple mortgage. If it does, then the suit, having been brought within the period allowed by Section 31 of the Limitation Act, is within time, and the case will have to go back to the court below for trial on the merits. If, however, it does not, the suit must fail and this appeal must also be dismissed. On the date in question Chaudhri Raj Kumar borrowed Rs. 1,000 from Baldeo Das and Sheo Dat Rai, and executed the document in suit. The suit is to recover the amount due including interest. The total amount due was something over Rs. 7,000. The claim is laid at Rs. 6,000. The decision of the case in my opinion, depends simply upon the meaning that can be attached to the language of the deed. The document (taking the essential portions) runs as follows: 'I have borrowed Rs. 1,000, from so and so '...' and 1/3rd out of the entire 20 biswas zamindari property in mauza Kankauli, pargana Bhojpur, belonging to me, and have brought the same to my use. I therefore covenant and give it in writing that I shall repay the aforesaid amount with interest, etc. Until the repayment of the aforesaid amount I shall not transfer the aforesaid property either by sale, mortgage, gift, security or any other way; if I shall do so, then such transfer shall be invalid, I have therefore executed these few presents by way of a bond (tamassuk) for Rs. 1,000 so that it may serve as evidence and be of use when needed.' The court below dismissed the claim, holding that the above document was not a deed of mortgage. On behalf of the plaintiffs it is urged before us that there has clearly been some omission in the fairing out of the document and that the words 'rehan kiya' or 'maqful kiya' ought to have been there, that the intention to create a mortgage, is shown by the fact that the executant relates in the body of the document that he will not transfer the property mentioned therein until the debt has been repaid; and that if such transfer is made, it should be deemed invalid. A large number of cases have been quoted to us, but it seems to me that the decision of the case depends simply upon the meaning which is to be attached to the document, the intention of the parties being derived from the language that they have used in expressing it. In the case of a simple mortgage there is a transfer of an interest in specific property and a promise by the mortgagor to pay the mortgage money, and an agreement, express or implied, that if the money be not paid according to the contract, the mortgagee shall have a right to have the mortgaged property sold. In the document, as it stands, I personally am unable to find the transfer of any interest whatever to the moneylender, nor does the language disclose to me that the executant of the deed gave to his creditor a right to put the property to sale. It is impossible to read into the document the words which we have been asked to read into it, as it is also impossible to read into it other words which have been held in more cases than one in this Court, not to denote a mortgage but merely a charge. The mere fact that the executant of the document agreed not to transfer the properly until he had repaid the debt, does not constitute the deed a mortgage, nor does it necessarily indicate that a mortgage and only a mortgage was intended; nor does it give a right to put the property to sale. If anything, it is merely a restriction of the executant's right to sell his property : that is not the same as giving the creditor a right to put the property to sale. In the case of a simple mortgage, such language is quite unnecessary. The mortgagee can always have the property sold no matter into whose hand it may go. Lastly, there is the fact that the executant to this document himself describes it not as a mortgagee-deed but as 'tamassuk,' a word commonly used in this province, to denote a simple money bond. In my opinion this document by no means can he held to constitute a mortgage, and it is very doubtful also whether it can be said to create a charge on the property; but even if it could be said to do the latter, the present suit admittedly would he barred by time and would fail.
2. For these reasons I would dismiss the appeal, holding that no mortgage has been created.
Mohammad Rafiq, J.
3. I am also of opinion that the deed of the 12th of May, 1884, does not create a mortgage in respect of the property mentioned in it. It purports to have been executed by one Chaudhri Raj Kumar in favour of Baldeo Das and Sheo Dat Rai in lieu of Rs. 1,000. The language of the deed is involved and at one place is not quite intelligible. After the usual recital of the names and parentage of the borrower and the lenders and the amount of the loan, the deed refers to certain property without saying anything as to whether the property is to be security for the loan. It then mentions convenants as to repayment and rate of interest for and after the period for which the loan is taken and an undertaking by the borrower not to alienate the property by sale, mortgage, gift, or in any other way till repayment of the loan. It is admitted, and indeed it is clear from its language that the document does not in express terms create a mortgage on the property of the executant.
4. The argument for the obligees is, however, two-fold. It is contended on their behalf that there is an omission, by an oversight of the scribe probably, of the word 'hypothecate,' or 'mortgage,' where the property of the executant is referred to. If such an assumption is not made, the sentence which refers to the property is both ungrammatical and meaningless. And, secondly, the undertaking by the borrower not to transfer the property until repayment of the loan nessarily implies the grant to the creditors of the right and authority to sell the property in case of default by him, for realizing the amount due. Such a grant amounts to a transfer by the borrower of an interest in his property to the creditors and thus creates a simple mortgage as defined in Clause (6) of Section 58 of Act IV of 1882.
5. It may be conceded that there is some omission probably of the scribe by an oversight in the passage that refers to the property of the executant, for in its present form the passage is both ungrammatical and meaningless. But there is no warrant for the assumption that the word 'hypothecate' or 'mortgage' was intended to be mentioned and has been omitted. The word intended to have been used may have been 'charge' and if the borrower intended to create a charge only over the property the present claim would be out of time. The only assumption that would help the obligees would be the omission of the word 'hypothecate' or 'mortgage' and there is no reason to make such an assumption. The contention that the covenant against alienation until repayment of the loan read with the incomplete passage referring to the property necessarily implies the creation of a mortgage has also no force. A mortgage, as defined in Section 58 of Act IV of 1882, involves a transfer of an interest in specific immovable property. An undertaking by a borrower not to alienate his property until the loan is repaid imposes a restriction on his power of disposal of the property which may or may not be binding, but does not transfer an interest in the property to the creditor. I do not think that such an undertaking grants to the creditor the right to sell the property in case of default.' The deed in question read as a whole does not expressly or impliedly create a mortgage over the property mentioned therein. In fact a plausible argument may be based on the use of the word 'tamassuk' (bond) which occurs in the closing sentence of the deed. It may be said that the word, 'tamassuk,' negatives the construction of the document as a mortgage-deed. I would therefore dismiss the appeal.
6. I am also of the same opinion. With regard to the definition of mortgage generally, and of the different classes of mortgages, contained in Section 58 of the Transfer of Property Act, (No. IV of 1882), I have heard it contended before that the section in question is unhappily worded, and that it might be possible to prove a document to be a simple mortgage without proving it to be a mortgage at all. On this point it is worth while to note that the definition of a simple mortgage in Clause (b) of the said section makes use of the words 'mortgagor,' 'mortgagee,' and 'mortgage money;' which have just been defined in Clause (a) of the same section. It must be taken therefore that, in the definition of the expression 'simple mortgage,' these words are used in the sense assigned to them in the preceding clause. It follows that a document must be shown, first of all, to be a mortgage, that is to say the transfer of an interest in specified immovable property, before any question can arise as to its being a simple mortgage. On the general question it seems to me that the law has been very clearly laid down by the learned Judges of this Court who decided the case of Dalip Singh v. Bahadur Ram (1907) I.L.R. 34 All. 446, (448). In a simple mortgage the interest transfered is the right to have the property sold, and whether or not there has a been transfer of this interest is to be inferred from the language used in the document. In the present case we are asked to infer from the covenant against alienation that there has been such a transfer. A covenant against alienation may be said to be a covenant divesting the executant of a document of a portion of his interest in the property in question, but it does not vest that interest in anyone else. From a more general point of view, it may be said that a covenant against alienation does no more than offer an assurance to the person advancing the money that there will be property available for the realization of a simple money decree, in the event of his being driven to obtain one. Something more than this is required before it can fairly be said that the executant of the document, either expressly or impliedly, conferred on the mortgagee a right to cause this particular property to be sold. I would therefore also agree in dismissing the appeal.
7. The appeal is dismissed with costs.