JUDGMENT Dalal, J.
1. The plaintiff, Mt. Ashraf Zadi, wife of Aziz Alam, sued one Lalta Prasad, transferee of her husband's property for enforcement of a charge by sale of the property. Under a registered deed the husband had promised to pay his wife Rs. 4 a month by way of maintenance in case there was disunion between himself and her, and she resided in his house. He further stipulated that if he did not pay the maintenance monthly the amount shall be realized from him by suit. The property was hypothecated (mustaghraq o kafil) for further assurance. What he agreed was that he would not execute any deed of sale or gift or alienate the property and that such a document would be void if he did so. He called the security a ' zamanatnamah." It was argued on behalf of the plaintiff that this document created an interest in the property and that therefore she was entitled to recover the money by sale of the property. The learned Judge of the lower appellate Court held that no interest in the property was created by the deed. Though he has not specifically said so, he held Section 40, T. P. Act, applicable and held that the plaintiff was not entitled to recover the money out of the property because the transferee had no notice of her right on her husband's obligation. This is a second appeal not only by Mt. Ashraf Zadi but also by her husband, the defendant. This indicates that in reality it is not the woman who wants the money but her husband who after making a complete alienation of the property, desires to take advantage of a document long since executed by him in favour of his wife. As pointed out by the lower appellate Court, the wife never came forward to claim any maintenance since 1909 to the present day though the husband made several transfers by way of mortgage between 1921 and 1925.
2. The question at issue therefore is whether an interest in the property is created by the document of 1909. In Kishan Lal v. Ganga Ram [1890] 13 All. 28 that great jurist Mahmood, J., approved of the observations of Dr. Ghosh in his Transfer of Property Act:
A charge must be distinguished from a mortgage as defined in the Act, more specially from a simple mortgage. In every mortgage there must be a transfer of interest in a specific immovable property, while in the case of a mere charge no interest is transferred.
3. These observations were referred to and sought as a support by Mookerji, J., in Royzuddi v. Kali Nath Mookerjee [1906] 33 Cal. 985 at 992. He observed under authority of what was said by Mahmood, J., in the Allahabad ruling that a mortgagee can follow the mortgaged property in the hands of a transferee from the mortgagor whereas a charge can be enforced against a transferee only if it is shown that he has taken with notice of the charge The learned Counsel for the appellants here quoted a Bench ruling in the case of Mahadeo Prasad v. Anandi Lal A.I.R. 1925 All. 60 , where the learned Judges agreed with the observations of the learned Chief Justice in Maina v. Bachchi [1906] 28 All. 655 that it was much too broad a proposition to state that in all cases where by act of parties or by operation of law immovable property of one person is made security for payment of money to an-other and the transaction does not amount to a mortgage, the security will not be enforced against such transferee with-out notice. These observations do not lay down any principle but are merely by way of a warning that an enquiry must be made in every case whether a making it recoverable by sale of a. certain Property. Such however is not the case here. The plaintiff's claim does not depend on any decree of Court in her favour making the property in suit liable for payment of the maintenance allowance. The agreement executed by her husband was of a vague character and hedged round with conditions. It is obvious that it was intended to be used only against a stranger and not against the husband himself. The fact that the husband is prosecuting this appeal at a time when according to the wife, the conditions are such that the husband is unfriendly to her clearly indicates the bogus nature of the document. In my opinion it has not created any interest in the property, and therefore a transferee for value without notice cannot be held liable for payment of the amount mentioned in the agreement out of the property. The question of notice is a question of fact. The lower appellate Court has decided this issue against the plaintiff woman. In this connexion it was argued that registration was sufficient notice. This argument is met by the observations of their Lordships of the Privy Council in Tilak Dhari v. Khedan A.I.R. l921 P.C. 112. It was held there that the proposition involved is not one of law but of fact, and as each ease arises it should be determined whether in that individual case the omission to search the register taken together with the other facts, amounts to such gross negligence as to attract the consequence which results from notice. This point has been considered by the learned Judge of the lower appellate Court and I agree with the findings recorded by him. This appeal is dismissed with costs. Permission is granted to appeal by way of Letters Patent.