JUDGMENT Stuart, J.
1. This second appeal has arisen in the following manner. On the 14th May 1914 the defendant executed a simple unregistered money bond for good consideration of Rs. 3,999 at 12 per cent, simple interest in favour of the plaintiff. The defendant was not liable to pay the amount till 5th June 1917. On the 3rd June 1920 an endorsement was written on the back of the bond by one Sumer Singh on the, instructions of the plaintiff. This was signed by the defendant. We translate the endorsement as follow:
Accounts having been made up, the sum of Rs. 6,500 has resulted as principal and interest in which" (this is a literal translation : the words are jismen) " a usufructuary mortgage of villag Samogarh for Rs. 4,000 has been executed today : Rs. 10 in cash; have been paid.
2. The same day a deed was executed by the defendant in favour of the plaintiff in respect of the village Samogarh. This deed it the " usufructuary mortgage" to which reference is made in the endorsement The deed is not a usufructuary mortgage.
Missing-618
10. In these circumstances it is unnecessary to consider the point raised by the appellant which does not appear to have been pressed-in the Court of the District Judge and is not raised explicitly in the grounds of appeal here that the acknowledgment is bad for being unstamped.
11. The appeal is allowed and. the suit is dismissed.
12. The plaintiff will pay his costs and those of the defendant in all Court-fees on the higher scale.
Boys, J.
13. I am in entire agreement with my learned brother on the questions with which he has dealt fully, the questions of acknowledgment of liability and limitation. But we have had fully discussed before, us the interpretation of the so-called mortgage-deed and I think it is desirable in the' just interests of the plaintiff if he is right and in the just interests of the defendant if he is right that we should also express our opinion as regards the interpretation of the terms of that deed and of the endorsement on the earlier bond.
14. A perusal of both documents, particularly of what I will call the mortgage-deed of which the terms arc very unusual gives the impression that it might be correctly described as a "conversational document" that is to say a document which has not had its origin in any carefully pre-conceived view of the exact terms in which the parties were going to define their obligations but which has started with expressing the main idea and then as various questions have occurred to either party clauses have been added. So we find in this document first of all, a simple declaration that such and such property is mortgaged for a period of twenty years in consideration for a sum of four thousand rupees. Then it appears that somebody said "that does not make it clear whether the four thousand rupees refers to the principal only or the principal and interest" and then a phrase is added, not defining this in clear terms but simply stating that the "lcul zar-i-saman" has been taken into account.
15. This latter is followed by what has been described as a clause providing for redemption. Here again no amount is specified but simply the phrase "kul zari saman" again appears. Then lastly after apparently the whole document has been completed, a kind of foot-note is added in which it is said that (I quote from the Court translation )"The document account whereof has been adjusted and in lieu of which the mortgage-deed has been executed was executed on the 14th May 1914."
16. The endorsement on the bond gives us no further indication than such as is to-be found in the words "jismen char hazar rupea." We have clearly then to determine the effect to be given to the words "jismen" and the effect to be given to the words "kul zar-j-saman." We find it impossibly to determine the exact meaning of the, words "jismen" in the context in which they are here used, as to. whether they.. mean "against which" "towards the account -of which" and so on. The words are ambiguous. To turn to the words "kul zar-ir saman" we note that the learned District Judge says: "The mortgage-deed contains, a statement that the sum of four thousand rupees is accounted for (mahsub) in {men) the money bond, i e., set against the money-bond." A perusal of the transliteration of the mortgage-deed has not enabled me to find any such statement" at all. What, has been said in the document is "kul zar-i-saman mahsub valia" To say that the document contains the words "four thousand rupees is accounted for" is to beg the whole question.
17. I have already described the first passage where the term "kul zar-i-saman" occuis as indicating that that passage was merely an additional statement which was intended to make it clear but entirely failing to make it clear whether the whole Rs. 6500 was being settled or only the Rs. 4,000. But there is to my mind clear indication in the second passage, where the second "kul zar-i-saman" occurs, showing the true meaning to be given to that phrase. It is admitted that it must mean either Rs. 4,000 or Rs. 6,500. Let us suppose that it meant Rs. 4,000. Then it would effect this that after a week, ten years or any period he pleased. after the execution of that deed the mortgagor could by the payment of Rs. 4,000 without even any interest, have discharged the deed That would mean that the mortgagee would lose" his whole security. The whole purpose of the execution of the second deed would be frustrated. It js impossible to believe the that could possibly have been the intention. On the other hand if it meant Rs. 6,500 there is a very obvious meaning in the clause, namely, that if the mortgagee was to be allowed to keep possession for his twenty years well and good, the whole debt was wiped If, on the other hand, the mortgagor cost to redeem, and it was made unlikely that he would choose to redeem, he would have to pay the Rs. 6,500. Seeing that to put the interpretation "Four thousand rupees" on the words "kul zar-i-saman" Avhere the occur in the second place would be to make the whole document absolutely futile, which to interpret it as meaning Rs. 6,500 would make it logical, reasonable and intelligible.
18. we think it must mean inevitably the sum of Rs. 6,500. If that is so, there can be no possible justification for holding the it meant anything else where exactly the same phrase occurs clearly without qualification.
19. The final note at the end of the document supports this view that the second document was executed in lieu of the first document and entirely superseded it.
20. We think for these reasons, therefore, that the second deed was intended to entirely supersede the first deed and that the plaintiff's case should have been dismissed. I agree in the order passed by my learned brother.