Maclean, C.J. and Banerjee, J.
1. The appellants complain that the Judge in the Court below has not given them the interest to which they are entitled on the mortgage created in their favour by the defendants, the realisation of which security was the subject matter of the present suit. The questions we have to decide are first, whether, upon the construction of the mortgage deed, the plaintiffs as mortgagees are entitled to post diem interest at the rate stipulated for in the deed.
2. If upon the construction of the deed, we arrive at a conclusion adverse to the plaintiffs, the appellants, then a further question would arise whether the plaintiffs are entitled to any and what interest upon the mortgage money up to the date of payment.
3. In the view we take of the construction of the deed the second question does not arise. In my opinion, there is, though not an express, an implied, stipulation that post diem interest is to be paid and to be paid at the rate stipulated for in the deed. We can only determine the intention of the parties upon the question of interest from the terms of the deed itself. One deed cannot be construed by reference to the construction judicially put upon another deed, but it is impossible to avoid noticing the marked resemblance between the terms of the deed in this case and those in the deed in the case of Mathura Das v. Narindar Bahadur Pal (1897) I.L.R. 19 All. 39: L.R. 23 I. A. 138 a case which has been much commented upon in the course of the present argument. But I refer to and rely upon that case, not by reason of the similitude of language between the deed in that and in the present case, but with reference to the arguments upon which, in construing the deed in that case, the Privy Council relied and based their conclusion. The reasoning in that case appears to me to be very pertinent to the present. Looking at the provisions of the deed in this case, I think it was the intention of the parties,---and in a simple mortgage transaction it is not an unusual intention,---that if the principal money be not paid by the stipulated time, interest should continue to run and run at the stipulated rate. Such a construction is consistent with the ordinary intention of mortgagor and mortgagee in an ordinary mortgage transaction.
4. I will now consider certain of the provisions of the deed itself. At the top of page 21 of the Paper Book, we find this, 'we shall pay interest on the said amount at the rate of one per cent, per mensem. 'I pause there for a moment. There is nothing there confining the payment of interest only until the time stipulated for payment off of the principal. As regards time the payment of interest is unlimited. The deed then proceeds: 'Until the said principal and interest thereon are paid up, we shall not sell or make a gift of the said mehal, or in any way prejudice our rights in the same.' The 'said interest' in that clause refers of necessity to the interest mentioned in the preceding clause,---interest, as I have pointed out, unlimited as to the period over which it was to be payable.
5. Now I find, in the case to which I have referred, an almost similar provision in the deed in that case. I find in that deed this clause: 'Until the payment in full of this amount, principal and interest, I shall not transfer, either directly or indirectly, the mortgaged property to any one else, and if I do, such a transfer should be deemed false and inadmissible.' Now what do their Lordships of the Privy Council say upon such a condition as that---'If it be true,' they say, 'that covenants not to transfer till principal and interest be paid are sometimes inserted, when the intention is only to secure interest for a single year, such intention must be gathered from other parts of the deed itself. If such a covenant, not being controlled by other parts of the deed, does not mean that interest is to run till payment, it is very difficult to say what it does mean.' I may also rely upon the reasoning of their Lordships at page 145 of the report I.L.R. 19 All., at p. 49, as applying with equal force to the present case.
6. There are other provisions in the deed which appear to me to support our present view. For instance there is the provision that, if the mortgagors fail to pay interest for 'one year,' then, after the lapse of that year, the amount was to be treated as principal. The time stipulated for repayment of the principal was at a date between one and two years from the date of the mortgage. This reference to the failure to pay one year's interest appears to ma to indicate that it was in the contemplation of the parties that interest was to be paid until the principal was repaid, and that the transaction was not to be closed when the day fixed for payment of the principal arrived. Then the provision for sale in default of repayment of the principal sum 'together with interest' thereon, the provision for realising 'the whole amount,' the reference to the non-realisation of 'the whole sum,' are expressions which appear to me to indicate that the interest referred to in the deed is interest up to the time of realisation. As I have pointed out before, such construction is in accordance with the usual intentions of parties to such a transaction. In my opinion, therefore, upon the construction of the mortgage deed the parties intended that if the principal were not paid by the stipulated date, interest should continue to run at the rate mentioned in the deed. Being of that opinion I think the Court below was in error as to the amount of interest allowed to the plaintiff, and the decree must be varied by directing that the plaintiff be entitled to principal with interest, at the rate mentioned in the mortgage-deed, up to the date of the decree in the first Court, and after that date at the rate of six per cent, per annum until payment. The appeal must be allowed with costs in proportion to the amount decreed and disallowed respectively. The costs in the Court below will be increased proportionately by the additional sum to be recovered on the security.