1. This was a suit for redemption of a usufructuary mortgage. The defence was that the sum of Rs. 400 was due upon a subsequent bond, dated 5th October 187o, and should be paid off by the mortgagee along with the mortgage money. The Court of first instance held that the document, which evidenced the loan of Rs. 400, was not a mortgage, nor did it create any charge on the property and decreed the suit. That decree was upheld in appeal by the lower appellate Court. The defendant comes here in second appeal and his contention is, that on a proper construction of the document dated 5th October 1876, it creates a further charge upon the mortgaged property and that, therefore, the defendant, in accordance with the terms of the hold, is entitled to recover the amount of the deed along with the mortgage money.
2. It is contended on behalf of the respondent that the document does not in express terms create a mortgage or a charge. We have, however, to see what is the intention of the parties as expressed in the document. We have to remember that the document was not drafted by a trained lawyer and it is our duty to give effect to the intention of the parties although that intention may not, through the ignorance of the person drafting the document, have found adequate expression at the time. The document recites that a share of the mortgagor had been mortgaged to secure an advance of Rs. 250 and that the mortgagee was in possession; then it goes on to state that the mortgagor had taken a further advance (avr qarz liya) 'without interest' and then there is the covenant that the mortgagor will not be allowed to redeem the original mortgage without paying up the amount of this bond. The bond concludes with the words yeh tamasuk mashrut-ul-rahan likhdiya take sand rahe.
3. We have no doubt in our minds that the expression mashrut-ul-rahan was introduced to convey the meaning that this document secured a further advance by the mortgagee upon the-same security as in the original mortgage deed. In this respect it is a very significant fact that the document sets forth the three facts that the mortgagee was in possession and that the further advance was not to carry interest and that the two sums Rs. 250 and Rs. 400 were to be re-paid together. We think it is quite clear that the parties considered that the property was to be the security for both loans and that the income there from was to cover the interest, due on both. We must, therefore, hold that the document of 5th October 1876, creates a charge. This being the case, the observations of the learned Chief Justice qouted in Muhammad Abdul Hamid v. Jairaj Mal A.W.N. (1906) 267 apply to the facts of this case:
The second mortgage contains a covenant on the part of the mortgagor for payment of debts simaltaneously. It creates in effect a further charge on the property in respect of the further advance made by the mortgagees to the mortgagor and, no doubt, the fact that the mortgagees were in possession of the mortgaged property was some inducement to them to make that advance. 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.
4. We, therefore, allow the appeal, modify the decree of the Court below and direct that the plaintiff do deposit in Court the further sum of Rs. 400 in addition to the sum of Rs. 250 within a period of 5 months from this day. Let a decree be drawn no in terms of Order 84 Rule 7(b), (c) and (d). The defendant-appellant will have her costs in all ourts.
5. We draw the attention of the Court below to the fact that in drawing up the decrees of their Courts, the provisions of the Transfer of Property Act were altogether ignored.