1. This was a suit by the appellants for the recovery of Rs. 1,794, and, in default of payment, for foreclosure on the basis of two deeds, dated July 19th, 1864, and September 1st, 1865. Both deeds were executed by the ancestors of the respondents in favour of the ancestors of the appellants. The Subordinate Judge decreed the claim after making. a slight correction in the appellant's account of interest. On appeal, the District Judge disallowed the claim so far as it rested on the later deed, which, in his opinion, was not a mortgage.
2. The only question for decision in this second appeal is whether the later deed is a mortgage.
3. The earlier deed is a mortgage by way of conditional sale in one of the usual forms. the date fixed for payment being June 24th, 1869.
4. The later deed contains a promise to pay a definite sum with interest thereon by the last day of Baisakh (presumably the next following Baisakh, which ended on April 29th, 1866), and provides that, if payment is not made, the obligees may recover the money from the obligors psrsonally and from their moveable and immoveable property (none being specified). Then there is a reference to the earlier deed, and the obligors say: 'When we offer to pay the amount due on the deed of conditional sale, we will first pay the amount with interest of the present deed and then pay the amount of the deed of conditional sale therefore, we have written this bond in order that it may be of use (is waste yih tamassuk likhdiya he waqb per ham awe)'. It was at one time supposed that such a stipulation was invalid as tending to hamper the mortgagor in the exercise of his right of redemption, but that notion is now exploded, and there is no doubt that such a stipulation is valid and can be enforced, but this suit was brought nearly forty-five years after the date of the second deed, and any claim to recover money on it is barred by limitation unless it is a mortgage.
5. The appellants have treated the sum payable under the later deed as a further advance on the security of the mortgage by way of conditional sale. They rely upon the decisions in Ranjit Khan v. Ramdhan Singh 31 A. 482 : 6 A.L.J. 654 : 2 Ind. Cas. 859 and Musammat Pancho v. Deo Karan 6 Ind. Cas. 165. In the later deeds under consideration in those cases, the promise was to pay the further advance along with the sum secured by the first deed, the later deeds were described as tamassuk mashrut-ul-rahan, and it was found, on a consideration of all the terms of the deeds, that the further advances were made on the security of the property already mortgaged. The later deed in the present case contains a personal covenant to pay the money more than three years before the earlier deed could have been enforced, the deed is described as a tamassuk only, the word usually employed to describe a money-bond, and it is stamped as a money-bond not as a mortgage. The obligees have under it a right to proceed against the obligors personally and against their property of every kind. In all these respects, the later deed now in question differs from the deeds which were considered in the two cases cited. It is plainly impossible to treat the later deed as a deed of farther 'mortgage or charge in the ordinary sense, for the terms and conditions of the later deed differ widely from those of the earlier deed.
6. But it is contended that a bond containing an agreement that the obligor shall not redeem a mortgage already made by him until he pays the amount of the bond, is in itself and necessarily a second mortgage of the property. The judgments of Richards and Alston, JJ. in Ranjit Khan v. Ramdhan Singh 31 A. 482 : 6 A.L.J. 654 : 2 Ind. Cas. 859 were relied upon as authority for this proposition. But the deeds under consideration in that case were, as I have shown, different in many respects from the deed now in question. Richards, J., did not decide whether the deeds created mortgages or charges, and Alston, J., held that they were charges. Both learned Judges recognized the possibility of a deed of this kind not creating either a mortgage or charge; indeed, they distinguished some previous cases from the case before them on the ground that, in those cases, the later deed was found to evidence neither a mortgage nor a charge, but to be a simple money-bond containing a stipulation that a certain mortgage should not be redeemed except in a certain event.
7. In order to constitute a mortgage, there must be a transfer of an interest in specific immoveable property. In the case of Ranjit Khan v. Ramdhan Singh 31 A. 482 : 6 A.L.J. 654 : 2 Ind. Cas. 859 it seems to have been suggested that the interest transferred was the right to remain in possession of the property. This view was not definitely accepted by the Court, nor, in my opinion, should it have been accepted. At the date of the later deeds in that case and at the date of the later deed in the present case, the obligors were out of possession. They had parted with their rights to possession under the first deed. There was no transfer of the right to possession under the later deed, but only an undertaking not to re-take possession except in a certain event. It may be urged that such an undertaking is commonly found in second mortgages of property already mortgaged with possession to the person who makes the further advance. That is perfectly true, but in the case of a second mortgage, it is generally provided that the further advance is to be added to the original mortgage-money, and all the conditions of the first deed are to apply to the further advance. The question in each case is whether the later deed shows that the property already mortgaged shall be held as security for the further advance. The later deed in the present case does not apply to the conditions of the first defed to the further advance; on the contrary, it contains provisions inconsistent with the terms of the first deed. The rights of both parties under the later deed are entirely different from their rights under the earlier deed.
8. In my opinion, the later deed does not amount to a mortgage. It does not effect a transfer of an interest in any property and it does not add the further advance to the original mortgage-money or make the conditions of the earlier deed applicable to the further advance. It may amount to a charge, but it is not enough for the appellants to make out that the later deed created a charge for a suit to recover money on the basis of a charge was barred many years ago under Article 132 of the second Schedule to the Limitation Act of 1877. Whatever maybe done in a suit for redemption, the Court cannot, in a suit of this kind, pass a decree for the pay men of money, the recovery of which is barred by limitation, and then go on to provide for foreclosure if the money is not paid.
9. In my opinion, the decision of the lower Appellate Court in this case is correct. I, therefore, dismiss this appeal with costs.