Bombay High Court
Krishna Bhaichand vs Hari Janardhan on 15 April, 1908
Equivalent citations: (1908)10BOMLR615
JUDGMENT Batchelor, J.
1. The terms of the mortgage deed which in this case we have to consider are unquestionably of a somewhat doubtful character, and it is - therefore incumbent upon us to endeavour to ascertain the intention of the parties by scrutinizing that intention as disclosed in the deed itself : see Jafar Husen v. Ranjit Singh (1898) L.R.R.21 All. 4.
2. Now when one comes to read the mortgage deed, the first impression it produces is that it is an instrument of usufructuary mortgage. That is what it purports to be; that is plainly its general intendment and effect and that is what it ought to be considered to be, unless there are very clear indications to the contrary.
3. The only difficulty in the way of regarding it as a mere usufructuary mortgage is that there is a personal covenant to pay. That covenant is no doubt made on conditions, but still there is the promise to pay, and the question is whether that promise converts the deed into a deed of another character or not.
4. We have been referred to certain decisions of the Madras High Court where the learned Judges have held, construing the particular deeds which were then before them, that in those deeds the covenant to repay did imply a power to sell in default of payment. It is not necessary for us to express dissent from any of those cases, for, after all they do no more than decide the proper construction of the deeds then before the learned Judges,
5. Then we have been referred to the case of Kashi Ram v. Sardar Singh (1905) I.L.R.28 All 157, where it was held that where a mortgage is in other respects a usufructuary mortgage, the insertion therein of a personal covenant to pay the mortgage debt on demand unaccompanied by any hypothecation of the property the subject of the mortgage cannot alter the character of the mortgage and give to the mortgagee a right to sell in the event of non-payment.
6. It appears to us that we ought to follow this decision, and apply it to the document before us. We do not find that this document contains anything more than a personal and condi- tional promise to pay. We do not see any indication that the property was hypothecated or that it was ever the intention of the parties that it should be liable to be brought to sale in case the promised payment was not made.
7. The result is therefore that the appeal must be allowed, the decision of the District Judge must be reversed and the case must be remanded to the District Court in order that the appeal be re-heard in the light of the foregoing observations.
8. Upon our decision at least one issue still remains open, namely, whether the plaintiff is entitled to claim possession. There may be other issues open also, but that will be for the lower Court to determine.
9. Costs will abide the result.