D.M. Bhandari, J.
1. This is a Civil Second Appeal in a suit filed by Badri Narain, who is now represented in this appeal by his three sons, Chauthmal, Baboo, Radhey Shyam and Mst. Naraini his widow against Mst. Sanjya defendant-appellant and Bhoora Mal, another defendant.
2. The case as set up in the plaint is that on the 28h of July 1951, Mst. Sanjya, the defendant-appellant borrowed Rs. 901/- from the plaintiff and in security thereof mortgaged a shop situate in the town of Monoharpur and deliversd possession thereof. It was also agreed that the defendant-appellant shall pay 1 per cent per mensem as interest towards which Rs. 25/- per annum were to be adjusted as rent of the shop. This agreement was recorded in the khata (Ex. P/1) which beam the thumb impression of the defendant-appellant. It is further alleged that the defendant-appellant delivered the possession of the shop but the plaintiff was dispossessed therefrom on the 20th of May 1953 and refused to pay the money borrowed by her. It was further stated that as the khata (Ex. P/1) was also executed in favour of Bhura Mal (Defendant No. 2), he was also made a defendant in the case. The plaintiff prayed for a mosey decree for the amount of Rs. 1,180/- with interest. The defendant-appellant denied the execution of the khata as well as taking any loan from the plaintiff Badri Narain. She also pleaded that the document was un-registered, and, as such, it could not form the basis of the suit. The trial court decreed the suit holding that Ex. P/1 was executed by the defendant-appellant and that Rs. 901/- were paid to her at the time of the execution of the khata, by Badri Narain plaintiff. The defendant-appellant filed an appeal before the District Judge, Jaipur District. The learned District Judge agreed with the findings of the trial court and held that although the document was not admissible for creating any charge on the property, yet it was admissible for proving the loan. Hence this Second Appeal on behalf of the defendant-appellant.
3. Before I refer to the respective contentions of the parties, I may refer to the contests of the khata (Ex. P/1). The khata (Ex, P.1) mentions that Rs. 901/- were borrowed by the executant of the khata on the security of the shop. Thea the details how the consideration of Rs. 901/- passed are given. It is mentioned that Rs. 535/- were paid to Bhura Mal Berathi (not Defendant No. 2) and the shop was redeemed from him and the balance of Rs. 366/- was taken for maintenance. Then follow the following conditions which are freely translated in English -
'In all, Rs. 901/- were borrowed. Before the shop is redeemed, the aforesaid (money) wish interest shall be deposited; till such deposit was made the executant would not put forward any claim over the shop, and interest shall be added to the aforesaid (money) and Rs. 25/- for one year for the rent of the shop shall be deducted therefrom.'
4. It is contended on behalf of the defendant-appellant that Ext. P'/ r embodies the tenaas of an usufructuary mortgage which cannot be enforced for want of registration, and as there is no personal covenant to pay any money, the plaintiff's suit must fail. It is also urged that the plaintiff had not paid Rs. 901/- or any other amount to the defendant-appellant at the time of the execution of the khata and Ex. P/1 was altogether without consideration and the learned Judge of the lower appellate court has not discussed the evideace with regard to the payment of consideration fully and satisfactorily with the result that be has given a wrong finding on this point.
5. On behalf of the respondents, it is urged that in Ex. P/1 there is an agreement to pay interest and also the conditions referred to above which clearly show that the defendant-appellant had agreed to pay the amount borrowed toy her and thus there was an express undertaking on her part to pay the aforesaid amount for which the suit was maintainable even if the charge on the property mortgaged could not be enforced. It is also submitted that even if it be held that there was no personal undertaking for the payment of the aforesaid amount by the defendant-appellant, the plaintiff was entitled to recover back the amount of Rs. 901/- as it was proved that this amount was lent by the plaintiff to the defendant-appellant. It is also urged that the document (Ex. P/1) was admissible for the purpose of proving that Rs. 901/-were paid to the defendant-appellant by the plaintiff. On the question of consideration, it is urged that both the lower courts have given a concurrent finding on this point against the defendant-appellant and she should not be permitted to agitate it in the Second Appeal.
6. There is no serious controversy that Ex. P/1 is a mortgage deed which should have been registered. The controversy is on the point whether the transaction embodied in Ex. P/1 is an usufructuary mortgage or an anomalous mortgage containing a personal undertaking by the defendant-appellant to pay the amount of Rs. 901/- which it is said she borrowed from the plaintiff. Section 58(d) of the Transfer of Property Act defines 'usufructuary mortgage', as follows:-
'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 an usufructuary mortage and the mortagee an usufructuary mortgagee.'
Here there was delivery of possession of the mortgaged property to the mortgagee and he was authorized to retain it till payment of the mortgage amount and he was to receive rents and profits of the mortgaged property in lieu of interest. Thus, all the ingredients of an usufructuary mortgage are satisfied in the present case. The argument of the learned counsel Mr. Mardia on behalf of the legal representatives of the plaintiff is that in the heading of mortgage deed (Ex. P/1) there is a promise to pay interest and this heading must govern the entire khata and it must be taken that the defendant-appellant had undertaken to pay interest personally. This argument, in my opinion, has got no merit, because even in an usufructuary mortgage as defined in Section 58(d), there can be an agreement to pay interest. The next argument is that Ex. P/1 contains an undertaking to pay the amount of Rs. 901/- with interest before the shop was redeemed and as such jt must be taken that there is a personal undertaking to pay Rs. 901/-with interest. Reliance is placed by the learned counsel (Mr. Mardia) on Kangaya Gurukul v. Kalimuthu Annavi, ILR 27 Mad 526 (FB); Lachhmi Narain v. Kalyan, ILR (1959) 9 Raj 1121 : (AIR 1960 Raj 1); Shri Lal v. Babu Basudeo Prasad, ILR (1960) 10 Raj 948; Mool Singh, v. Pokardas, AIR 1959 Raj 15; Shesh Dan v. Kishan Lal, AIR 1957 Raj 299. In AIR 1957 Raj 299, it was observed that -
'If the claim for recovery of money can be deduced from the document, as a separate matter from the condition of mortgage, or if there is a personal undertaking to pay the amount of the loan, a claim on such ,agreement or in such circumstances for the balance of the amount of the loan is entertainable by the Courts.'
7. In AIR 1959 Raj 15, there was the finding of the learned Judge that the document embodied an express promise to pay the mortgage money, and it was held that
'......... a personal covenant in a mortgage deed constitutes an independent and separable transaction apart from the portion of the document affecting the property and, therefore, even an unregistered mortgage deed can be admitted as evidence of the simple debt.'
8. In ILR (1960) 10 Raj 948 it was held that-
'...... an unregistered document affecting immovable property could be taken as evidence of part performance of a contract as contemplated by Section 53A of the Transfer of Property Act.'
9. The first two rulings of the Rajasthan High Court lay down the law where there is a personal undertaking which is separable from the contract of mortgage to pay the mortgage amount, a suit based on that undertaking may be filed. The third case is governed by the proviso to Section 49 of the Registration Act. These cases, therefore, are not helpful for the purpose of determining whether the terms of the document (Ex. P/1) under consideration are such as import a personal undertaking on the part of the defendant-appellant to pay the mortgage amount to the plaintiff.
10. I shall deal with the Full Bench case of ILR (1959) 9 Raj 1121 : (AIR 1960 Raj 1) at a later stage.
11. In ILR 27 Mad 526 (FB) the relevant condition in the document was as follows: -
'Thereafter, on (naming a date) on paying (the amount advanced), we shall redeem our land. If on the date so fixed the amount be not paid and the land recovered back, in whatever year we may pay (the amount advanced) on (naming the date) of any year, then you shall deliver back our lands to us.'
It was held by the Full Bench that the first sentence of the extract from the mortgage instrument contained a promise by the mortgagor to pay on the date named, in which case there was a right in the mortgagor to get back his lands for which a decree for sale of the mortgaged property could be passed.
12. On behalf of the defendant-appellant, learned counsel has relied on Luchmeshar Singh v. Dookh Mochan Jha, ILR 24 Cal 677, which was followed in a number of cases.
13. Now in Luchmeshwar Singh's case, ILR 24 Cal 677 of the Calcutta High Court, the relevant stipulation ran as follows (p. 679) -
'..... .having paid the principal money in the month of Chait 1279 we shall take back the document and the land. In case we fail to repay the principal money at due date this sudhbharna bond shall remain in force.'
It was held that these words did not take away the document from the definition of usufructuary mortgage as given in Section 58(d) of the Transfer of Property Act. It was further held that there was no express contract to submit to a decree for sale or to one for foreclosure, and as such, the operation of Section 67 of the Transfer of Property Act was not excluded, and in the absence of the fulfilment of the conditions in Section 68, the plaintiff in that case was held not entitled to maintain the suit for a money decree.
14. In my humble opinion, the proper approach for resolving the problem is to see whether there is any undertaking on the part of the mortgagor to pay the amount borrowed by him on the security of the immovable property. If such an undertaking is there, it may be inferred that the mortgagor had taken a personal liability to pay. Any obligation in the deed on the part of the mortgagor should not be treated as an undertaking to pay. For example, if the mortgagor has imposed upon himself any obligation not to claim the property until the debt is satisfied, it cannot be taken that he has promised to pay the mortgage money personally. This, in my humble opinion, is the view taken in Luchmeshar Singh, ILR 24 Cal 677. The Full Bench case of ILR 27 Mad 526 of the Madras High Court is distinguishable as there was an undertaking on the part of the mortgagor to pay the mortgage money. The crux of the problem is, whether there is anything in the document from which it can be inferred that the mortgagor had taken upon himself to do anything else than leave the property untouched by him till the amount with or without interest is paid off. If it can be spelt out from the document that the mortgagor had undertaken any personal obligation in the matter of payment of the mortgage money, the document would be an anomalous mortgage and will not remain merely an usufructuary mortgage. There is a lot of difference in saying that 'I shall pay the amount and reedeem the property' and I shall not redeem the property till I pay the amount'. In my humble opinion, the document in the present case is of the latter class and it cannot be inferred from Ex. P/1 that there was any personal undertaking by the defendant-appellant to pay the amount of Rs. 901/-.
15. But the matter does not end here. The question whether the mortgage instrument contains a stipulation for payment of the mortgage-money by the mortgagor personally has its importance for various purposes. Without such a stipulation the mortgagee is not entitled to bring a suit for the sale of the property. Without such a stipulation the mortgagee may not be entitled to a personal decree against the mortgagor if the sale proceeds of the mortgaged property do not wipe out the entire debt. These cases arise when there is a regular mortgage by a registered document. But here there is no mortgage at all because there is no registered document. Section 59 of the Transfer of Property Act makes registration of a mortgage deed compulsory with the exceptions mentioned thereunder. Section 49 of the Indian Registration Act lays down that no document required to be registered shall affect any immovable property comprised therein. Thus, in the present case, there is no transaction of mortgage at all. It is urged by the learned counsel for the defendant-appellant that an unregistered mortgage is not admissible in evidence to prove what the consideration for the mortgage was and reliance is placed on Sukhlal v. Bisesar, AIR 1929 Nag 115. The view taken in that case is that consideration is not a collateral fact, and as such, the document cannot be admitted in evidence. Consideration may not be a collateral fact and the document may not be admissible in evidence under the proviso to Section 49. In this respect, even before the amendment of the Transfer of Property Act by Section 10 of the Transfer of Property (Amendment) Supplementary Act, 1929, which added the proviso to Section 49 of the Indian Registration Act, the view was that the document could be admitted in evidence of a collateral transaction not required to be effaced by a registered instrument, but the main section does not bar the total admissibility of the document. It only says that 'no document shall be received as evidence of any transaction' affecting such property unless it has been registered. It is only when the document is sought to be used as evidence affecting any immovable property comprised therein that the document is inadmissible under Section 49 of the Indian Registration Act. In the present suit, the plaintiff has given up his claim on the immovable property and he has come with the suit for the money lent. Can it be said that even for such a limited purpose, the document Ex. P/1 is not admissible? It is not necessary for me to refer to a large number of authorities in this connection. In the Full Bench case of this Court in ILR (1959) 9 Raj 1121 : (AIR 1960 Raj 1), the view taken by this Court is that an unregistered document can be availed of for the purpose of showing the character or nature of the possession, if possession is transferred under the document as also the quantum of interest claimed by the party in possession. This case is, however, distinguishable in one respect. The purpose for which Ex. P/1 is sought to be admitted in evidence, in the present case is that the defendant-appellant had received the consideration from the plaintiff and there was an acknowledgment of the receipt of payment of the consideration. In the Full Bench case, such a receipt was held admissible as there was no law in force when the document in that case was executed requiring the instrument acknowledging the receipt of consideration to be registered. Under Section 17(1)(c) of the Indian Registration Act, non-testamentary instrument which acknowledges the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest in the immovable property is to be registered. In this view of the matter, it is not possible to admit in evidence that portion of Ex. P/1 which relates to the receipt of the consideration.
16. In spite of this, as observed by their Lordships of the Privy Council in Imperial Bank of India v. Bengal National Bank Ltd., AIR 1931 PC 245.
'..... the creditor is entitled to take a judgment for the debt without having recourse to his security.'
17. I may also refer to Fisher and Lightwood's Law of Mortgage, (7th Edition -- 1931), p. 349 -
'Every mortgage implies a loan, and every loan implies a debt, for which the borrower is personally liable, though he has entered into neither bond nor covenant for payment of it; but the debt is of the nature of simple contract only, unless there is a bond or an express or implied covenant to give it the character of speciality.'
18. The creditor may prove that he had advanced a sum of money to his creditor which he was entitled to recover it back. For that purpose, he may lead such evidence as is available to him. If the unregistered instrument contains two stipulations which may be treated as independent of each other, one creating a charge on the property and the other undertaking a personal liability to pay the amount advanced, the latter may be enforced and the document may be put in evidence in proof of such undertaking but if there is no such undertaking and the only purpose for which the amount was advanced was for creating the charge on the property, in that case, under Section 17(1)(c) of the Indian Registration Act, if there is anything in the document purporting to be an acknowledgment of the receipt of payment of any consideration on account of the creation of a charge, such writing is inadmissible. In the instant case before me, both the lower courts appear to have relied on this document for the purpose of holding that Rs. 901/- were paid by the plaintiff to the defendant-appellant. In so far as they have done so, they have gone wrong. They were to give a finding 'on the basis of the evidence on record ignoring the document and treating it as inadmissible on the point whether the plaintiff has proved that Rs. 901/- were paid by him to the defendant-appellant. I am, therefore, constrained to remit the case back to the lower appellate court for giving a finding on this point without taking the document (Ex. P/1) into consideration.
19. As a result of the aforesaid discussion theappeal is allowed, the judgment and decree of thelearned District Judge, Jaipur District, Jaipurdated the I3th of April 1957 are set aside and thecase is remitted back to that court to decide itin accordance with law, keeping in view the aforesaid observations. Costs in this appeal shall abidethe result.