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Kamayya and ors. Vs. Yerakota Alias Rentakrishnayya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported in19Ind.Cas.221; (1913)24MLJ479
AppellantKamayya and ors.
RespondentYerakota Alias Rentakrishnayya and ors.
Cases ReferredVenkatasami Reddi v. Rangatnma
Excerpt:
- - ' the intention to create a charge was taken to be clearly expressed and the real question that the learned judge considered was whether the description of the security was so vague that effect could not be given to the intention of the parties......interest profit at rs. 0-8-0 per rupee and pay the aggregate. for this i and my heirs with all my property moveable and immoveable as thanaka (security) shall be liable.' we do not think that this can be regarded as apt language to create a mortgage or charge. in norton v. florence land and public works co. (1877) l.r. 7 ch.d. 332, sir george jessel observed as follows : 'the mere fact that the obligor binds not only himself but also his estate, property and effects, is not sufficient to constitute a charge. every bond does in a sense bind the property of the debtor. in legal course it binds his property generally as property is bound to pay a judgment debt.' the language of the document in this case is not stronger than that in the above case where the company (the debtor) purported.....
Judgment:

1. We are of opinion that the document Exhibit A did not create a mortgage or charge over any property. It purports to be only a simple bond. After promising to discharge the amount due under the bond and interest on the date fixed the executant proceeds to say 'If I do not so pay I shall add to the amount of principal and interest profit at Rs. 0-8-0 per rupee and pay the aggregate. For this I and my heirs with all my property moveable and immoveable as thanaka (security) shall be liable.' We do not think that this can be regarded as apt language to create a mortgage or charge. In Norton v. Florence Land and Public Works Co. (1877) L.R. 7 Ch.D. 332, Sir George Jessel observed as follows : 'The mere fact that the obligor binds not only himself but also his estate, property and effects, is not sufficient to constitute a charge. Every bond does in a sense bind the property of the debtor. In legal course it binds his property generally as property is bound to pay a judgment debt.' The language of the document in this case is not stronger than that in the above case where the company (the debtor) purported 'to bind themselves, their successors and assigns and all their estate property and effects.' In Joyson v. Kelser (1899) 2 Ch 530 relied on by the respondent, where Kekewich J. held that a valid charge was created, the language used was much stronger. 'I hereby charge all my real and personal estate whatsoever and wheresoever and of what nature or kindsoever the same may be or consist.' The intention to create a charge was taken to be clearly expressed and the real question that the learned judge considered was whether the description of the security was so vague that effect could not be given to the intention of the parties. But the question here is whether there was an intention to create a charge. As pointed out by the Judicial Committee of the Privy Council in Peacock v. Bajnath I.L.R. (1891) C. 573. There can be no charge where there was no intention to create any. It may be as observed by Dr. Rash Behari Ghose in his learned treatise on mortgages, that a valid charge could be created in this country at least before the enactment of the Transfer of Property Act over all the property owned by a person, though the property may not be specifically described, bat the Court will not lightly construe a document as evidencing such an intention in the absence of clear words to that effect. The inclusion of the moveable property of the executant of the instrument is a material circumstance in ascertaining the intention, for it is unlikely that he meant to tie up all his moveable assets and it is equally unlikely that he intended to create a floating charge over his moveables. The fact that the instrument purports to be only a simple bond is also not without some value. The use of the word thanaka after the expression 'all my moveable and immoveable property' is not sufficient to justify the inference that a charge or mortgage was intended to be created, Ramsidh Pande v. Balgobind I.L.R. (1886) A. 158 has been referred to; but in that case the language of the instrument was stronger. There was a promise not to alienate the debtor's property and there were other circumstances which, in the opinion of the Court, disclosed an intention to create a charge. Bheri Dorayya v. Maddhipathi Ramayya I.L.R. (1881) M. 35, Ram Baksha v. Sook Deo Salig Ram and Debichurn (1867) 1 N.W.P. 155 and the Collector of Itawa v. Beti Maharani I.L.R. (1892) A. 162 on the other hand support the defendant's construction of the document.

2. Venkatasami Reddi v. Rangatnma (1900) 11 M.L.J. 271 referred to by the Subordinate Judge is not in point as the instrument in that case was one of gift and the question at issue was whether it was void for indefinite-ness. On the whole we are of opinion that the Subordinate Judge was wrong in holding that Exhibit A is an instrument of mortgage: We set aside the order of remand and restore the Munsif's decree with costs here and in the Lower Appellate Court to be paid by the plaintiffs.


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