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Bhola Das Vs. Bishnath Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in16Ind.Cas.982
AppellantBhola Das
RespondentBishnath Lal and ors.
Cases ReferredJadu Nath Poddar v. Rup Lal Poddar
Excerpt:
mortgage - construction of deed--transfer of property act (iv of 1882), section 58--securing future advances upon mortgaged property. - - 'he shall enjoy the profits of the mortgaged lands in lieu of interest......of the same in any year, the mahajan shall, in that year, have power to recover it from a nine-anna zemindari share, the proprietary title and other moveable and immoveable property.' the 7-anna 6-pie zemindari share, it is alleged, is part of this 9-anna zamindari share referred to in the deed. it is quite clear that the principal amount is not secured on 9-anna zemindari share. we think it is equally clear that the deficiency in the interest, that is to say, any deficiency which might arise after giving credit for the profits of the 14 bighas, 17 biswas and 15 dhurs of land, was secured on the 9-anna zemindari share. it was known that there would be a deficiency at the very time the mortgage was executed, although, we do not think that this matter was very material. we know of no.....
Judgment:

1. This appeal arises out of a suit hi which the plaintiff sought to realise Rs. 3,000 principal, together With a large amount of interest, by the sale of a 7-anna 6-pie zemindari share in certain property. The document upon which the plaintiff relies is dated the 3rd of February 1894. It will be found at page 7 of the appellant's book. It first recites that the mortgagor has borrowed Rs. 3,000, bearing interest at the rate of 12-annas percent, per mensem. It then goes on to state that in lieu of this money, he has mortgaged 14 bighas, 17 biswas and 15 dhurs of land and placed the mortgagee in possession of it. This 14 bighas, 17 biswas and 15 dhurs comprised an occupancy-holding. The plaintiff, in the present suit, does not seek to enforce the mortgage against this property. The mortgage, then, proceeds as follows: 'He shall enjoy the profits of the mortgaged lands in lieu of interest. I, the executant, shall continue to pay to the mortgagee every year the deficiency in the amount of interest; and in case of default in payment of the same in any year, the Mahajan shall, in that year, have power to recover it from a nine-anna zemindari share, the proprietary title and other moveable and immoveable property.' The 7-anna 6-pie zemindari share, it is alleged, is part of this 9-anna zamindari share referred to in the deed. It is quite clear that the principal amount is not secured on 9-anna zemindari share. We think it is equally clear that the deficiency in the interest, that is to say, any deficiency which might arise after giving credit for the profits of the 14 bighas, 17 biswas and 15 dhurs of land, was secured on the 9-anna zemindari share. It was known that there would be a deficiency at the very time the mortgage was executed, although, we do not think that this matter was very material. We know of no law which prevents a party from securing future payments by a charge or mortgage upon immoveable property. It is contended on behalf of the respondents that even if the deficiency in interest was secured on the 9-anna zemindari share, on the true construction of the deed, it is secured by way of a charge and not by way of a mortgage, and reliance is placed upon the case of Jadu Nath Poddar v. Rup Lal Poddar 33 C. 967 : 10 C.W.N. 650 : 4 C.L.J. 22. The expression 'mortgage' is defined in Section 58 of the Transfer of Property Act in the following terms: 'A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability' If the true meaning of this definition is that there never is a mortgage unless the whole estate in the property is either transferred subject to redemption, or there is a transfer for a term of years, the definition is inapplicable to the vast majority, of the documents that have always been recognised as 'simple mortgages' in these Provinces. Such documents never take the form of a transfer of the mortgagor's estate. The mortgagor is expressed to 'hypothecate' or 'pledge' the property. Clause (6) of the same section is as follows:

Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee. Now, it is quite clear that in the present case, the mortgagor, without delivering possession of the 9-anna zemindari share, bound himself personally to pay the deficiency in the interest on the Rs. 3,000, and the deed provides that in case of default, the Mahajan shall have power to recover it from the 9-anna zemindari share; that is to say, that he either expressly or impliedly contracted that the mortgagee should have a right to cause the 9-anna zemindari share to be sold. We think that the document must be held to amount to a mortgage in respect of deficiency. The Court below decided the case upon this preliminary point. There are other questions which have to be decided. We accordingly allow the appeal, set aside the decree of the Court below, and remand the case with directions to re-admit the suit upon its original number in the register and to proceed to hear and determine the same according to law. Costs here and hitherto will be costs in the cause.


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