JUDGMENT Pramada Charan Banerji, J.
1. The facts of this case are these: Two brothers, Jhamman and Dhani Ram, made a usufructuary mortgage of two-thirds of certain zamindari property is favour of Har Prasad on the 28th of January, 1880, for a sum of Rs. 332. Under that mortgage the mortgagee obtained possession and got mutation of names in his favour. Subsequently Jhamman executed a document in favour of the same mortgagee, Har Prasad, by which he borrowed Rs. 50, with interest at the rate of 2 per cent. per mensem, and the contention is that this document created a usufructuary mortgage and placed on the property a further burden for the payment of the money secured by it. That is the question we have to consider in the present case. Jhamman sold a part of his share in the property to the defendant Ram Chandar. The heirs of Dhani Ram also sold part of Dhani Ram's share to the same defendant and to defendants nos. 4 and 5. The defendants last mentioned have not appeared and they have not contested the claim. Ram Chandar made a deposit of Rs. 332 under Section 83 of the Transfer of Property Act. This sum the mortgagee Har Prasad refused to withdraw, alleging that the amount payable under the mortgage of the 28th of June, 1881, should also have been deposited, and without payment of that sum the property could not be redeemed and could not be taken out of his possession. Ram Chandar, however, did not make any further deposit, but he applied to the Revenue Court for mutation of names on the allegation that the mortgage of 1880 had been redeemed and that he had become the owner of the property. Mutation of names was granted in his favour and apparently Har Prasad, the mortgagee, was deprived of his possession as mortgagee of the proprietary interests. He thereupon instituted the present suit, claiming possession of the two-thirds share mortgaged to him on the 28th of January, 1880, and some mesne profits. The court of first instance dismissed his claim; the lower appellate court decreed it; but on appeal to this Court the learned Judge who heard the appeal restored the decree of the court of first instance. Hence this appeal under the Letters Patent. It has been conceded before us on behalf of the appellant that, so far as the half share of Dhani Ram is concerned, the claim for possession by the plaintiff is not maintainable. Dhani Ram was no party to the subsequent bond of the 28th of June, 1881, and therefore all that he was liable for was the amount of the prior mortgage of 1880. We have, therefore, to consider in this appeal whether the plaintiff is entitled to recover possession of the remaining half of the mortgaged property on the ground that the amount of the subsequent document of the 28th of June, 1881, has not been paid. The decision of this question depends upon the construction of the document last mentioned. It must be observed that no hard and fast rule can be laid down and that each case must be decided upon the construction of the particular document and the circumstances connected with it, and that upon the question of construction no light can be derived from the construction of similar documents in other cases. Coming now to the document of the 28th of June, 1881 it refers at its commencement to the one-third share of Jhamman, the executant of that document, which was already under mortgage to the plaintiff Har Prasad under the earlier document of 1880. He then proceeded to state that he was borrowing a further sum of Rs. 50 from the same creditor, and he added the following covenant, as translated in the paper book before us: "The stipulation is that when I shall redeem the land mortgaged I shall also pay the said amount, with interest at the stipulated rate, and then the mortgaged property shall be redeemed. Without payment of the said sum the property shall not be redeemed". We have to consider what the intention of the executant of this document. was in inserting this clause in it. In my opinion the effect of this clause was to create a further mortgage on the share of Jhamman which was already under mortgage with the creditor under the document of the 28th of January, 1880. The provision in the document is, as quoted above, that the property shall not be redeemed or released from the possession of the mortgagee unless the amount of the subsequent document was also paid. Therefore it is clear that in order to release the property from the possession of the mortgagee, Jhamman or his successors in title had to pay, not only the amount of the prior mortgage of 1880, but also the amount secured by the subsequent document of 1881. The property already under mortgage, to which reference was made at the commencement of the document, was in my opinion made security for the additional debt incurred under the document of 1881. So that the document of 1881 is a mortgage within the meaning of Section 58 of the Transfer of Property Act. At the conclusion of the document it is described as "mashrut-ul rahn", that is, a mortgage, or, more correctly speaking, an additional mortgage. It is thus obvious that the intention of Jhamman was that he would not have the right to redeem the property unless he paid the two amounts already mentioned. It is urged that the subsequent document could not be deemed to be a usufructuary mortgage. I may observe in the first place that I do not agree with this contention, I may, however, also mention that the document which we have to consider in the present case was executed before the Transfer of Property Act was enacted, and therefore we have not to consider whether the document creates a pure usufructuary mortgage within the definition contained in the Transfer of Property Act; in any case it is a document which would fall within the purview of Section 98 of the said Act. In my opinion a document of this description should be deemed to be a document which creates a further encumbrance on the property and adds to the amount of the original usufructuary mortgage, and is a mortgage for the amount secured by it. As I have stated at the commencement of this judgment, each document should be construed with reference to its own terms and the circumstances under which it was executed. The document in the present case seems to me to be a further mortgage on the same property, and having regard to its terms, the mortgagee was entitled to continue in possession until the amount payable under this document was discharged. A large number of rulings have been cited to us, but in the view which I have taken of this document I do not deem it necessary to discuss those rulings. The case most near the present is the case of Ranjit Khan v. Ramdhan Singh (1909) I.L.R. 31 All. 482. In that case the learned Judges did not clearly decide whether the subsequent document created a further mortgage or a further charge, but they held that in any view the earlier mortgage could not be redeemed unless the amount of the second document was paid. There are no doubt other cases in which, under circumstances almost similar to those of the present case, a contrary view was held; but, holding the view that I do, as stated above, I think it unnecessary to refer to those rulings, Dr. Agarwala laid great stress upon the fact that if a suit for redemption had been brought, the question would have been whether the mortgage of 1880 could be redeemed without payment of the amount of the subsequent document, especially in view of the fact that Dhani Ram, one of the original mortgagors, was no party to the subsequent document. In support of his contention he has referred to the case of Muhammad Husain v. Sheodarshan Das (1907) 4 A.L.J. 176. That case no doubt supports his contention to a great extent, but it must be borne in mind that the present suit is not a suit for redemption of the prior mortgage. The question is whether the present plaintiff, the mortgagee, is entitled to remain in possession of the property until the amount secured by the two documents has been paid to him. In the opinion which I have expressed, he is so entitled. The second document, so far as the share of Jhamman is concerned, being a mortgage created by him on the same property and as this mortgage is in substance an addition to he amount of the prior usufructuary mortgage, the mortgagee could not be dispossessed until the whole of the two sums secured by the two documents had been paid up. The case of Hari Mahadaji Savarkar v. Balambhat Raghunath Khare (1884) I.L.R. 9 Bom. 233 was referred to The subsequent document in that case may be deemed to be a simple mortgage and under the terms of that document, the convenant was that the document should be discharged at some time prior to the discharge of the earlier mortgage under which the mortgagee was in possession. If the learned Judges intended to hold that the subsequent document was not a mortgage on the property comprised in the earlier document, I feel myself unable, with great respect, to agree with that view. The case of Lala Ram Narain Lal v. Lala Murlidhar (1920) 5 Pat. L.J. 644 was also cited. The facts and circumstances of that case were different and it is not necessary to say whether I agree with the decision in that case or not. The next contention on behalf of the respondents was that under the document of the 28th of June, 1881, the creditor could sue to recover his money and that therefore his claim upon that document is time-barred and cannot at present be enforced. I do not agree with this contention. That document does not confer on the creditor the right to sue for his money at any time. If the document is, as I hold it to be, an additional usufructuary mortgage, the mortgagee could not sue for his money and therefore no question of limitation can arise. The last contention on behalf of the respondents Is that Ram Chandar must be deemed to be a tenant and therefore the suit could not be brought in the Civil Court for recovery of possession by his ejectment. In the first place I may mention that this plea was not put forward either in the courts below or in this Court when the case was before the learned Judge who decided it. In the next place the suit does not relate to agricultural land and it is not asserted that the defendant Ram Chandar is a tenant of agricultural land. The property in dispute is zamindari property and the suit is one for recovery of such property. Therefore no question of tenancy can arise in this case. In the above view the result will be that the plaintiff would be entitled to recover possession of half of the property claimed by him. There is a further claim for mesne profits, but Dr. Sen, who appears on behalf of the appellant, does not press this part of the claim. I would, therefore, make a decree in the plaintiff's favour for half of the property claimed by him, and to this extent reverse the decree of the learned Judge of this Court.
Stuart, J.
2. The document of the 28th of June, 1881, commences by a reference to the previous deed of mortgage and continues that the executant has borrowed Rs. 50 from Har Prasad. It states that when the previous mortgage is redeemed that amount will be repaid with interest at 24 per cent. and that without payment of the amount due, the mortgaged property is not to be redeemed. The executant concludes by describing the document as "mashrut-ul-rahn". I had previously some doubts as to whether such a document was a mortgage within the meaning of Section 58 of Act IV of 1882; but I have now arrived at the conclusion that it is a mortgage. It is true that there is no explicit transfer of an interest in specific immovable property, but taking the document as a whole, and in particular looking at the clause postponing redemption until the money is paid, it must, I think, be considered that the executant agrees that the mortgaged property shall remain in possession of Har Prasad until the additional amount secured by the deed, with interest, is repaid. The document can thus only be read as an addition to the previous document. The executant, who is the mortgagor under the previous deed, has taken a further advance, the property remains in possession the mortgagee, and in addition to receiving the usufruct of the property the mortgagee is entitled to receive interest at 24 per cent. on the new loan. While agreeing that it is idle to endeavour to lay down that the interpretation of one document is to be according to the interpretation of another, I think it necessary to note that the present document is a very typical "mashrut-ul-rahn" as executed in the western districts. It may be stated generally that an omission explicitly to transfer an interest in specific immovable property does not necessarily show that the deed in which that omission is made is not a mortgage, for there may be an implied transfer of an interest which is equally efficacious. Subject to these remarks I am in complete accord with the judgment of my learned senior brother and would arrive at the same order.
Wallace, J.
3. I agree with the judgment of Mr. Justice Banerji.
4. The order of the Court is that the appeal is allowed in part, the decree of this Court is modified and a decree is made in the plaintiff's favour for possession of half of the property claimed by him. The remainder of the claim is dismissed. The parties will pay and receive costs in all courts in proportion to failure and success.