I.D. Dua, J.
1. Waryam Singh respondent before me is alleged to have approached Bachan Singh, plaintiff-appellant in this Court, on the 20th March, 1954, for a loan of Rs. 734/- and in consideration of the loan he (Waryam Singh) agreed to mortgage 3 bighas and 16 biswas of agricultural land with Bachan Singh. It is alleged that this amount was paid to Waryam Singh through Gajjan Singh, because Bachan Singh had to go out on that day on some urgent piece of business. Waryam Singh, after receiving the amount, made a report with the patwari on the same day that he had actually received Rs. 734/- from Bachan Singh and that in lieu of the said amount he had mortgaged 3 bighas and 16 biswas of agricultural land with him i.e. Bachan Singh. The patwari duly recorded his report in his daily diary and secured Waryam Singh's signatures thereon. Labh Singh and Surjit Singh are also alleged to have signed the report as attesting witnesses. Mukhtiar Singh thumb-marked it also as an attesting witness.
2. On 14th July, 1954, Waryam Singh, defendant-respondent, filed a suit for possession of the same land against Bachan Singh alleging that he had been defrauded and was made to sign the report on a threat that his son would be implicated in a case of robbery if he did not do so. This suit was decreed on 26th of August, 1954, on the ground that the transfer of land worth more than Rs. 99/- could only be made by means of a registered deed, with the result that Waryam Singh got back possession of the land mortgaged. It is as a result of that litigation that the present suit has been instituted by Bachan Singh for the recovery of Rs. 734/- which he had given to the defendant in consideration of the mortgagee rights of the agricultural land.
3. The defendant contested the suit alleging that he had not received any amount from the plaintiff and that he was made to sign the report made with the patwari by putting him in fear of his son being implicated in a robbery case
4. The only issue on which the parties went to trial is whether the plaintiff paid Rs. 734/- to Waryam Singh on the 20th March, 1954.
5. The learned Subordinate Judge after considering the evidence led in the case disbelieved the version given by the defendant and gave a positive finding that the defendant had received Rs. 734/- from the plaintiff and then made the report with the patwari as stated above. On this finding, the plaintiff was held entitled to recover Rs. 734/- from the defendant and a decree for the said amount was granted to the plaintiff with costs.
6. Waryam Singh went up in appeal to the Court of learned District Judge, Kapurthala, where the counsel for the defendant did not contest the finding of the learned Subordinate Judge so far as the payment of Rs. 734/- by the plaintiff to the defendant was concerned. The lower appellate Court, however, in spite of affirming this finding, non-suited the plaintiff on what it described to be a point of law that since in the case of usufructuary mortgage no personal covenant to repay the amount to the mortgagee arises, Bachan Singh could not ask for a decree for money against Waryam Singh personally. According to the Court below, this point was allowed to be raised, because the facts applicable were patent on the face of the record.
7. On behalf of the plaintiff, an attempt was also made to raise a point that since the consideration for the mortgage had failed, he was entitled to get the mortgage amount from the defendant, but, curiously enough, the learned District Judge disallowed this prayer. Holding that Bachan Singh was not entitled to claim a decree for money from the person of Waryam Singh, the appeal was allowed and the plaintiffs suit dismissed.
8. It is against this decree that the plaintiff has come to this Court on second appeal. It has been urged that the payment of Rs. 734/- by Bachan Singh to Waryam Singh having been upheld by the two Courts below (and this finding was not assailed on behalf of the respondent before me), the lower appellate Court was wholly wrong in dismissing the plaintiff's suit on a plea which was not raised in the pleadings and which did not form the subject-matter of any issues. In my opinion, this contention has force.
It is well-settled that no new point, which has not been put into issue and which has not been the subject-matter of trial in the Court of first instance, can be permitted to be raised in appeal unless it is clear that such a procedure would not prejudice the trial of the dispute. In the present case, had this plea been raised, the plaintiff would, in my opinion, have tried to put forward the claim, which he attempted to do in the Court of the learned District Judge, but which the learned Judge refused to permit. In the previous litigation, the learned Subordinate Judge, who decreed Waryam Singh's claim, expressly came to the conclusion that as there was no written contract of mortgage, Bachan Singh, alleged mortgagee, could not urge that the land had been mortgaged with him. On this finding, Waryam Singh was granted a decree for possession of the land of which Bachan Singh had possession in pursuance of the mortgage which was intended to be created.
9. On the finding obtained by Waryam Singh in the previous litigation that it could not be urged that the land in question had been mortgaged with Bachan Singh, it is exceedingly doubtful if it could, in law, be open to Waryam Singh, respondent in the present proceedings, to urge that a mortgage had actually been created and that the said mortgage being usufructuary in character, his personal liability is excluded. Having secured a decree for possession in proceedings inter paries by alleging that there was no mortgage effected by him in favour of Bachan Singh, Waryam Singh would appear to me to be completely estopped from taking up a contradictory position in the present proceedings by urging that Bachan Singh being a mortgagee under a usufructuary mortgage, he is not entitled to ask for a decree for money personally against Waryam Singh.
If the doctrine of approbate and reprobate Is applicable to a case, in my opinion, the present is, on the arguments addressed, eminently the fittest one to which it should be applied. See in this connection Mt. Malan v. Karta Mal-Mangta Mal, 42 Pun LR 140. It can hardly be open to a party both to reject and accept a transaction. I would, however, not base my decision on this ground, because Bachan Singh too did not raise this point in the suit, though, in my opinion, if the defendant had raised the ground, on which the learned District Judge decided the appeal in his favour, in the Court of first instance, the plaintiff might well have thought of raising the plea of estoppel.
10. I would set aside the judgment of the learned District Judge on the short ground that he should not have permitted an entirely new point to be raised by the defendant, and once that part of the judgment is set aside, the decree of the Court of first instance, must, obviously, deserve to be restored and upheld.
11. I am also unable to concur with the learned District Judge that the present is a case of usufructuary mortgage. The mortgage deed is not on the record; nor are its terms otherwise-discernible with any amount of certainty; all that the learned counsel for the respondent could refer to, is, the report said to have been made by his own client, who later tried to go-back on it, by alleging that he had not mortgaged the land at all. The question whether or not the mortgage was usufructuary mortgage is clearly a mixed question of fact and law, and unless the necessary facts are either admitted by both the-parties or are found established by legally admissible evidence, such a question should never be permitted to be raised for the first time on appeal.
12. In order to see whether the learned District Judge was right in observing that relevant i'acts were patent on the face of the record, I should like to set out at this stage the essential prerequisites of a usufructuary mortgage. Such a mortgage is defined in Section 58(d) of the Transfer of Property Act, and is in the following terms :
'58 (a) X X X (b) X XX(c) X XX(d) Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee'.
13. In Mt. Maina Bibi v. Chaudhry Vakil Ahmad. 52 Ind App 145 : (AIR 1925 PC 63), Lord Atkinson described the distinction between the usufructuary and an ordinary mortgage in the following words ;
'The main difference between a usufructuary mortgage and an ordinary mortgage is that in the former it is part of the initial agreement by which the security is created that the mortgagee shall at once go into possession of the mortgaged property and apply the proceeds he may derive from the use and occupation of it to discharge the mortgage debt; while in the case or an ordinary mortgage of the usual sort it is in general not the initial intention of the parties that the mortgagee should go into possession of the property pledged immediately or at all--al-though he is empowered to do so if the interest on the mortgage money be not paid. Should he go into possession, he must account for the receipts just as must the usufructuary mortgagee'.
This clearly shows that the essential pre-requisite of a usufructuary mortgage is the term that the mortgagee immediately goes into possession and applies the rents and profits towards the interest or the principal or both. Such a mortgage is said to be analogous to what is known as a 'Welsh mortgage' in England; and in this State 'Lekha Mukhi' mortgage also partakes of the same characteristics. In the absence of a term with respect to possession in the agreement no usufructuary mortgage can legally come into existence. On the present record, my attention has not been drawn to any such term of mortgage, which is now pleaded by Waryam Singh in defence, and indeed the respondent has actually taken back possession of the land in question on the plea (which he successfully asserted in a competent Court in the previous litigation) that he never lawfully bound himself to mortgage the land. This conclusively negatives the usufructuary nature of the mortgage, if at all one can lie put forward now in the present proceedings.
14. It may here be pointed out that a mortgage, as defined in Section 58(a), Transfer of Property Act, is merely a transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, or an existing or future debt etc. This definition does not by itself exclude personal liability of the debtor, and. indeed, the very act of talcing a loan or incurring a debt, would, without more, imply a liability to pay, and unless this liability in some permissible manner excludes the personal liability, the debtor or the obligee can scarcely be heard to say that he is not personally liable. But this apart, in the instant case. the property having actually been taken back by Waryam Singh, it would, generally speaking, be open to Bachan Singh to sue for money, even by virtue of the provisions of section 68(1)(d), Transfer of Property Act.
If, as is contended by the respondent, he had agreed and purported or intended to effect a usufructuary mortgage, then he has obviously committed default in carrying out his part of the obligation to deliver possession to the mortgagee, with the result that Bachan Singh can prima facie sue for money. That Waryam Singh has relied on a legal flaw would hardly affect Bachan Singh's right prejudicially.
15. Lastly, it may also be open to the appellant to contend that consideration for the usufructuary mortgage having failed he is entitled to get back the benefit taken by the respondent in pursuance of the contemplated mortgage.
16. The above discussion clearly shows that whichever way one looks at the case, it is not possible to uphold Waryam Singh's contention, which, to say the least, is dishonest and is also wholly unmcritorious. The judgment of the learned District Judge is thus most unsatisfactory and can by no means be sustained; it discloses a lack of grasp of some of the basic and fundamental principles of law.
17. For the reasons given above, this appeal succeeds, and, setting aside the judgment and decree of the learned District Judge, I restore those of the Court of first instance. The appellant must get his costs in all the Courts.