Sadasiva Aiyar, J.
1. The 20th defendant is the appellant in this second appeal. The suit is brought upon a panayam deed of 1883 to recover, by sale of the property mentioned in the deed, the sum of Rs. 400 principal and interest at 18 per cent, per annum from the date of the bond till date of repayment. The lower Appellate Court decided against the contentions of the defendants and gave the plaintiff a mortgage decree for sale for the sum of Rs. 400 and interest thereon at 18 per cent, per annum till 5th January 1896 and for interest thereafter at 6 per cent, per annum.
2. In second appeal Mr. Chamier, the learned Counsel for the appellant, raised several contentions which might be shortly formulated thus: (1) Exhibit A is not a simple mortgage document but only created a charge and hence the plaintiff is not entitled to take advantage of the provisions of Section 31 of the new Limitation Act of 1908 and his claim had become barred long before the filing of this suit. (2) The lower Appellate Court was wrong in its finding that, the debt is binding upon the tarwad of the defendants Nos. 1 to 19, as in arriving at this wrong decision, it has misconstrued Exhibit B. (3) The lower Appellate Court's decision that the plaintiff was not the benamidar of Kalliat tarwad is erroneous. (4) The plaint debt has been extinguished and the lower Appellate Court's finding that it was not so extinguished is due to its misconstruction of Exhibit II; and (5) The lower Appellate Court ought not to have allowed any interest after the expiry of the one year's period mentioned in Exhibit A for the repayment of the debt.
3. The last point is not taken in the memorandum of second appeal and there is nothing in it.
4. As regards the first point, namely, the question of limitation, the document is a panayam deed and the word panayam' when used in documents executed in Malabar means a mortgage, if the property governed by the panayam. deed is immoveable property. Further the provision in Exhibit A that the sum of Rs. 400 with interest will be paid to the mortgagee within one year' clearly implies a personal covenant by the mortgagors to pay the amount and when there is such a personal covenant, it has been held by a long course of decisions of which I need only mention those in Balasubramania Nadar v. Sivaguru Asari 11 Ind. Cas. 629 Rama Brahmam v. Venkatanarasu Puntulu (1912) M. W. N. 1124. Rangappa v. Thammayappa 24 Ind. Cas. 372. ands Venkatarama Aiyar v. Suppa Nadan 24 Ind. Cas. 24: (1914) M. W. N. 501. 58. that a document of this character is a document of simple mortgage under the Transfer of Property Act.
5. Next 1 shall deal with the contention that Exhibit D was misconstrued by the lower Appellate Court when it arrived at its finding that the debt, is binding upon the tarwad of defendants Nos. 1 to 19. Exhibit D clearly refers to a debt of Rs. 1,350 as due by the whole tarwad on kanom and panayam deeds mortgaging (among others) the plaint properties, and I think that the lower. Appellate Court was entitled to infer from that recital (as explained by the evidence of the plaintiff's 5th witness) and to arrive at the conclusion that the plaint debt was also admitted in Exhibit D as a debt binding upon the tarwad of defendants Nos. 1 to 19.
6. Then as regards the question whether the plaintiff was the benamidar of the 20th defendant's rival jenmi, the judgment of the Subordinate Judge is no doubt very unsatisfactory. But I am unable to see how in second appeal we can interfere with his finding of fact on that question. The really important question, however, is whether the debt was extinguished by the razi arrangement arrived at in July 1908 under Exhibit II between the 20th defendant and the rival jenmi, whose benamidar the plaintiff is alleged to be. Having heard Exhibit II read and commented upon by the learned Counsel for the appellant,, I cannot hold that there is anything in it which can be construed as an acknowledgment by the 20th defendant's opponent that the 20th defendant was entitled to the plaint lands free from any encumbrances even in the shape of a simple mortgage. The question whether the debt has been extinguished, apart from the construction of Exhibit II, depends upon the appreciation of evidence, and we cannot interfere in second appeal with the lower Appellate Court's finding of fact on that evidence that the debt has not been extinguished.
7. One other question (not raised in the original memorandum of second appeal but) sought to be argued under an additional memorandum filed recently by the appellant is that the plaintiff is not entitled to a decree for the sale of the entire properties mortgaged under Exhibit A, as the mortgagors (defendants Nos. 1 to 19) were entitled only to a moiety of the suit properties. Exhibits A and B do establish that the defendants Nos. 1 to 19 owned only one half of the plaint properties. There is an observation in the judgment of the District Munsif that it was admitted before, him that the mortgagors were not justified in mortgaging more than their rights in the plaint properties, namely, their right to one half share. The decree of the lower Appellate Court will be modified by giving a mortgage decree for the sale of only a moiety of the plaint properties. In other respects, the second appeal must be dismissed with costs.
8. As regards the memorandum of objections, the lower Appellate Court has given no legal reasons for allowing only 6 per cent, interest on the principal amount of the mortgage after 1896. The plaintiff is entitled to get interest at the original rate of 18 per cent, till the date fixed in the decree for repayment of the mortgage amount, interest and costs according to the usual provisions in a mortgage decree for sale.
9. The memorandum of objections must, therefore, be allowed with costs. Time extended till the expiry of four months from this date for redemption.
10. I entirely agree and I have only to add that as it has been argued that the Subordinate Judge was not justified in his findings of fact on the questions of (1) tarwad necessity and (2) the extinguishment of the plaint debt and (3) the benami nature of Exhibit A, it is to be regretted that when reversing the District Munsif's judgment on these points he did not entirely meet the reasoning given in the first Court's judgment for the conclusions then arrived at. At the same time the Subordinate Judge does give reasons of his own for the conclusions at which he arrives and his findings of fact cannot be upset in second appeal so long as there is some evidence to support them.
11. On the point of law it has been argued that there must be some transfer of interest in property to constitute a simple mortgage, and that the suit document created only a charge over the property for which the limitation period is twelve years. I am of opinion that it is too late now to ask us to hark back to the decision in Rangasami v. Muttukumarappa 11 Ind. Jur. 452. The decisions in Balasubramania Nadar v. Sivaguru Asari 11 Ind. Cas. 629. Rama Brahmam v. Venkatanarasu Puntulu 16 Ind. Cas. 209: (1912) M. W. N. 1124. and Venkatarama Aiyar v. Suppa Nadan 24 Ind. Cas. 24. decided that a formal transfer of interest was an element of mortgage which need not be expressed in the document of mortgage. In the last two decisions the case of Rangasami v. Muttukumarappa 11 Ind. Jur. 452. was considered and distinguished. Moreover Rangasami v. Muttukumarappa 11 Ind. Jur. 452. dealt with a mortgage prior to the Transfer of Property Act. Here the panayam deed in suit is one of 1883 subsequent to the Transfer of Property Act. I am not prepared to say that this document, which describes itself as panayam or mortgage, created only a charge upon the property. The case of Ramachariar v. Dorasami Pillai 29 Ind. Cas. 605. was one in which it was merely stated that the property in question was made a security for the debt. There are no such words in the document now in suit-I, therefore, consider that the second appeal must fail on all points and the memorandum of objections must be allowed.