JUDGMENT Mukerji, Ag. C.J.
1. This appeal has been referred to a Full Bench because of some difficult points of law involved in it. The facts of the case briefly are these: One Gobind Singh owned a two annas 8 pies share in several villages. He had eight sons, namely, Rajpal, Ajit, Ram Ghulam, Din Dayal, Ram Roshan, Harnam, Ahbaran and Kalu. All the sons except Rajpal made a usufructuary mortgage of a two annas four pies share for 15 years with one Har Mangal Singh. 'Harmangal Singh is now represented by the defendants in the suit out of which this appeal has arisen. The plaintiff, who is respondent 1 in this appeal, has sued to recover the entire property mortgaged except a two pies share which was purchased by the mortgagee, on payment of a proportionate amount of the mortgage money, which was Rs. 600. The plaintiff is the purchaser of 18 2/7 pies and the share is made up in this way: He purchased the shares belonging to the branches of Din Dayal, Ram Roshan, Harnam and Ajit. It appears that Kalu's branch became extinct and the four pies share belonging to Kalu was inherited by the remaining seven branches. Thus the share of each branch was augmented by 4/7 pies. The four branches who sold their shares to the plaintiff thus became entitled to 4x4/7 pies in addition to their original shares. Thus the plaintiff has become entitled to 18 2/7 pies.
2. The plaintiff's suit was met with the plea that at different dates, to be presently mentioned, different branches of the mortgagor's family executed certain deeds by way of a further charge and that the plaintiff could not recover the property claimed without payment of the money borrowed by and due on foot of these deeds of further charge. These documents are as follows: (1) Mata Prasad Singh, grandson of Ajit, borrowed Rs. 99 from Harmangal on 16th July 1884 and agreed to pay interest at 2 percent per mensem. The money was repayable, initially on 27th June 1885 and in any case it was to be paid before the mortgage of 1883 was redeemed. (2) Deo Narain Singh, a grandson of Harnam Singh, and Mata Prasad, grandson of Ram Ghulam, mortgaged between them a four pies share to Harmangal for Rs. 85 on 6th September 1884 and agreed as to payment in almost similar terms to those agreed to by Mata Prasad in document No. 1. (3) Bishnath and Jageshar Singh, sons of Ram Roshan, borrowed Rs. 85 from Harmangal on 11th April 1885 on terms similar to the documents Nos. 1 and 2 (4) Sheo Kumar Singh, son of Kalu Singh, borrowed Rs. 50 from Harmangal on 4th September 1885 on terms similar to the terms of the bonds Nos. 1, 2 and 3. The point that was seriously considered in the Courts below was whether these four deeds created any charge on the properties mortgaged in 1883 and therefore the moneys due on these bonds were repayable at the time of redemption of the mortgage deed of 1883.
3. The Courts below have differed on this point. The learned Munsif was of opinion that documents Nos. 2 and 4 created a charge and documents Nos. 1 and 3 did not. The learned Subordinate Judge held that the documents 1 and 3 did not create a charge, that document No. 4 did create a charge and document No. 2, although it did create a charge, was not operative inasmuch as when the document was executed the integrity of the mortgage had not been broken. The documents have been translated for our benefit and we have perused them. They are more or less in the same language and the important portions of the language used are these:
When I redeem my zammdari share in taluka Bibipur...which is mortgaged for Rs. 600 to the aforesaid creditor....I shall first pay this sum of Rs. 99 together with interest and then I shall pay the mortgage money of the zamindari share. Until I pay up this amount I shall not sell or mortgage this mortgaged zamindari.
4. This is an extract from the document No. 1. In document No. 2 the following occurs:
When we redeem this mortgage (of 1883) we shall first pay up this amount--principal and interest--at the rate of two percent, per mensem. Until we pay this amount we shall not mortgage or sell the aforesaid zamindari.
5. The following occurs in document No. 3:
When we or our heirs redeem the above mentioned property (mortgaged in 1883) we shall first pay this sum together with interest, then the mortgaged zamindari aforesaid will be redeemed. Until the principal and interest of this deed are not paid we shall not mortgage or sell the aforesaid property.
6. The following is an extract from document No. 4:
When I redeem the mortgage (of 1883) I shall first pay up this sum--principal and interest--at the rate of two percent per month. Until I pay up this amount I shall not mortgage or sell the aforesaid zamindari.
7. The agreement that the mortgagor shall pay the amount due on the subsequently executed bond before he redeems the prior mortgage is an agreement to create a charge on the property previously mortgaged. This was the view taken by their Lordships of the Privy Council in Aditya Prasad v. Ram Ratan Lal AIR 1930 PC 176. In addition to the language which was found sufficient by their Lordships of the Privy Council to create a further charge, we have got the stipulation on the part of the mortgagors that they would not mortgage or sell the property previously mortgaged till the money due on the subsequently executed document had been paid. This stipulation meant that the previously mortgaged property was made security for the payment of the money subsequently borrowed. We are I accordingly of opinion that all the four I documents create further charges on the property mortgaged in 1883. The learned Counsel for the respondents has urged that according to certain facts, which will be presently stated, a sale deed of 20th July 1920 by reason of the fact that it is registered and the four documents No. 1 to 4, are unregistered, the sale deed has a priority over those documents under the provisions of Section 50, Registration Act. It appears that certain descendants of Gobind Singh belonging to the branches of Din Dayal, Ram Roshan and Ajit sold their shares by the sale-deed of 28th July 1920 for a sum of Rupees 700 in favour of Harnam Singh's branch and the plaintiff.
8. The sale-deed makes no mention of the four deeds of further charge enumerated above although it mentions the mortgage of 1883. Jaipal, the plaintiff and one of the purchasers under the deed of 1920, reliquished his rights acquired under the sale-deed in favour of his co-vendees (descendants of Harnam's branch). Subsequently the members of Harnam's branch made a mortgage of the property acquired in 1920 and also their original shares, in favour of Jaipal. Jaipal brought a suit for sale on that mortgage and in execution of the decree that followed purchased the property himself. The argument therefore was advanced that the sale-deed of 1920 for all practical purposes annulled the four unregistered documents. This plca however was not rasied before the arguments were addiesscd in the Court of the Munsif. The learned Munsif noticed the fact that the plea had been raised very late. The belatedness of the plea precluded the defendants from raising the possible plea that the plaintiff made the purchase of 1920 with notice of the pre-existing unregistered documents. We find that the plaintiff purchased with members of Harnam Singh's branch and Harnam Singh's branch belong to the same family to which the vendors belong. It is quite possible therefore that Harnam Singh's branch, and through them the plaintiff, were all aware of the existence of the four unregistered documents. The plaintiff in our opinion should have raised his plea, which he now wants to substantiate, as soon as the defendants pleaded the four unregistered documents. In our opinion we should not allow the plaintiff now to raise the plea.
9. The next point to be considered is what is the liability of the property under the four unregistered documents. Mr. Baleshwari Prasad has very correctly argued that for the purposes of determining the liability we should separate the several shares which belonged to the several branches. The fact that the defendants, the mortgagees, tinder the deed of 1883 purchased a two pies share out of the property mortgaged to them broke up the integrity of the mortgage and therefore it is not open to the plaintiff to redeem more than the share purchased by him. That share, as we have already pointed out is 18 2/7 pies. The document No. 1, the deed of further charge dated 16th July 1884, was executed by Ajit Singh's branch and therefore the original four pies share of Ajit Singh can be redeemed only on payment of 1/7 of Rs. 600 the mortgage money under the deed of 1883 and the amount due under the document dated 16th July 1884 (document No. 1.) Din Dayal's original share of four pies is free from any further charge because nobody belonging to his branch ever created any. Therefore the four pies share originally belonging to Din Dayal may be redeemed on payment of only 1/7 portion of Rs. 600. Ram Roshan Singh's original four pies share is charged under document No. 3. This will therefore be redeemable on payment of 1/7 of Rs. 600 plus the amount payable under the document of 11th April 1885. As to the further charge created by the document No. 2 dated 6th September 1884, that document was executed by two persons, namely, Deo Narain, grandson of Harnam, and Mata Prasad, grandson of Ram Ghulam. Ram Ghulam's two pies share is now in the possession of the defendants-mortgagees. Harnam's two pies share is liable to be redeemed and it would be redeemable on payment of 1/14 portion of Rs. 600 plus one-half of the money due under the document No. 2 dated 6th September 1884. The other half of Harnam's original share, namely two pics, is redeemable on payment of only 1/14 portion of Rs. 600. Kalu's four pies share was inherited to the extent of 2 2/7 pies by the four branches of the plaintiff's vendors. Kalu's successors created the 4th further charge under document No. 4 dated 4th September 1885. The plaintiff would be entitled to redeem this 2 2/7 pies share on payment of 4/7 share of 1/7 of Rs. 600 plus 4/7 of the amount due under document No. 4 dated 4th September 1855.
10. We accordingly modify the decree of the Courts below and make a decree under Order 34, Rule 7, Civil P.C., and grant six months' time for payment. A fresh decree will be prepared in this Court specifying the several amounts payable under the several documents in accordance with our judgment. The several portions redeemable under our decree will be specified separately so that the different amounts chargeable to different properties may be clearly specified. Interest at the stipulated rate will be calculated up to the period of six months, thereafter interest will be payable, in case of delay in redemption at 6 per cent per annum to the several bonds for further charge. In case of non-payment of the mortgage money it would be open to either of the parties to ask for the property mortgaged to be sold to recover the amount charged on several portions of the property. The mortgagee having succeeded must have his costs throughout and proportionate costs will be calculated in respect of the several items of property decreed for redemption so that the plaintiff in case of redemption will pay a proportionate amount of costs for each item redemed by him.