P L D 1953 Lahore 45 (PLP)

KAIKAUS, J.‑

This is an appeal against the decree of the learned District Judge, Campbellpur, dated the 30th August, 1950, by which he maintained the decree of the learned Civil Judge 1st Class, Campbellpur, dismissing the present appellant's suit for possession of mortgaged property. On the 31st July 1943, Karman, the father and predecessor‑in-interest of the appellant, mortaged with possession land measuring 114 Kanals and 1 Marla in favour of Khuda Bakhsh, father of respondents Nos. 1 to 3 and husband of respondent No. 4, for Rs. 1,

100. In lieu of interest on Rs. 800 the mortgage was to take the profits of the land the balance of Rs. 300 was to carry interest at Re. 1 percent per mensem. On the 27th October 1949, the plaintiff‑appellant filed the present suit pleading inter alia that the mortgagee having already received more than double the amount advanced he was entitled to the possession of the land without any further payment according to the rule of Damdupat incorporated in section 30 of the Punjab Relief of Indebtedness Act. The defendant‑respondent denied that double the principal amount had already been realised and pleaded further that the rule of Damdupat had no application to the case. It has been found that the mortgagee has received Rs. 2,286 from the rents and profits of the mortgaged property and that finding has not been challenged before us. The suit has, however, been dismissed by both the Courts on the ground that the mortgage of the 31st July 1923, being a usufructuary mortgage, does not, under the authority of Lachhman Singh v. Natha Singh through Hornam Singh and others, (A I R 1940 Lah. 401 (F B)) fall within the definition of debt as defined in section 7 of the Punjab Relief of Indebtedness Act, and that, therefore, section 30 of the said Act does not apply. It is agreed by the parties that only two questions arise for decision in this appeal, firstly. whether the mortgage in question constituted a debt under the Punjab Relief of Indebtedness Act, and, secondly, whether the present suit is one to which section 30 of the said Act applies. As regards the first question it is argued by the learned counsel for the appellant that the mortgage in dispute is not a purely usufructuary mortgage but makes provisions for the personal liability of the mortgagor and also arms the mortgagee with the right to demand his money and to sue for it. It will be convenient to set out here in extenso the relevant portion of the mortgage deed:‑ "Zar‑i‑rahan se mubligh 800 rupae bila sud rahega our iwz sud mubligh 800 rupae ke paidawar arazi murtahin ba adae muamla sarkar khawega. Qabza rnurtahin ko dia gia hat. Baqi mubligh 300 rupae zar‑i‑rahan ke hamrah sua ba hisab ek rupia fi sadi mahwar shumar hoga. Miaad koi muqarrir nahin hai. Jis waqt kul zar‑i‑rahan mae sud yakmusht khud ya indul talab murtahin ada kare ga. Ba mah Har ba'ad diro fasal fakkur rahan kara lunga. Zar‑i‑rahan our sud Gh ka muakhza jaidad marhuna, waris muzhir par bhi hoga. Mubligh 1100 rupae waste kharid arazi ke murtahin se rubaru Sahib Registrar Bahadar Attoek wasul karunga. Agar rahn haza men koi nags qanuni ya waqiati nikle our arazi marhuna qabza murtahin se nikal jawe to us surat men zar‑i‑rahan ma'a sud kul ya juzv jaisi surat hogi pesh murtahin bazatehi wa niz digar jaidad muzhir adaegi ki zimmadar hogi." The appellants' counsel relies on a number of clauses in the deed for showing that the mortgagor was personally liable for the payment of the mortgage money. It is unnecessary, however, to consider the effect of each of them as one of them which says "zare rahan ke moakhaza ka bar meri zat par bhi hoga. " clearly and in express terms imposes a personal liability. This sentence may be translated as "the burden of the liability for the mortgage money shall be on my person also". The learned counsel for the respondents is unable to suggest any interpretation of this clause except that the mortgagor was himself personally liable to pay it. He refers us however, to Narotaln Dass v. Sheo Pargash Singh (I L R 10 Cal. 740 (P C)), Jamuna Singh and others v. Sheonandan Singh and another (A I R 1941 Pat. 486), Bhutnath Janan and another v. Gopal Prosad Sahu (A I R 1940 Cal. 436) Abhoy Charan Malo and another v. Harendra Chandra Mandal and others (A I R 1940 Cal. 437), Syed Nazim Hussain v. Lala Mahabir Prasad (30 I C 224) and Sham Sundar v. Dilgan jan Singh and another (39 I C 540). In I L R 10 Cal. 740, their Lordships of the Privy Council had occasion to consider the provisions of a mortgage‑deed executed by a taluqdar in order to find out whether he intended to enter into a personal contract also for the payment of the mortgage money. Though the document at places used the words "I will pay". Their Lordships reached the conclusion that reading the document as a whole the intention of these words was that the taluqdar would pay out of the taluq and that it was a hypothecation bond pure and simple without any personal. In A I R 1941 Pat. 486, there was a provision in the mortgage deed saying that after the expiry of particular period the mortgagor would on paying the entire amount of the money redeem the property and that if he does not pay the mortgagee will continue to be in possession till the payment of the mort gage money. It was held that this did not imply at all a promise to pay the money. In A I R 1940 Cal. 436 and A I R 1940 Cal. 437 the undertaking to redeem the property was held not to imply any personal liability and was characterised as a mere redemption clause. 30 I C 224 and 39 I C 540 are cases of mortgage by conditional sale where the stipulation for redemption was given a similar effect. It is obvious that none of these cases is of any help in interpreting the clause in dispute which imposes in distinct language a personal liability. I would, therefore, hold that this mortgage deed clearly implies a personal liability to pay the mortgage money. It was next argued by the learned counsel for the respondents that even if there was personal liability still the mortgage remains a usufructuary mortgage and would not constitute a debt within the meaning of section 7 of the Punjab Relief of Indebtedness Act. He relied in this connection on Hakim Kanhalya Prasad v. Mst. Hamidan and others (A I R 1938 All. 418 (F B)) which does support the pro position that the existence of a personal covenant does not necessarily change the nature of a usufructuary mortgage. There is on this point a conflict of a authority. Some Madras and Calcutta cases have laid down that whenever there is a promise to pay there is a presumption that the mortgagor has a right to bring the mortgaged property to sale and the mortgage at once becomes an anomalous mortgage. I am relieved, however, of the responsibility of going into the question for two reasons. Firstly, it has been laid down in A I R 1940 Lah. 401, that it is one of the characteristics of a unsufructuary mortgage that the mortgagor is not personally liable for the mortgage money. Therefore, if the mortgage does import a personal liability it would not be a usufructuary mortgage. However, the second reason is the more important and in fact conclusive. We are not in this case directly concerned with the question whether the mortgage is or is not a usufructuary mortgage. The question before us is whether the mortgage in dispute constitutes a debt or not. The reason given in A I R 1940 Lah. 401 for holding unsufructuary mortgage not to be a debt is that it imports no personal liability. That is the C deciding factor. If a mortgage includes a personal liability it is a debt. It does not matter what name we give to such a mortgage. As I have already found that a personal liability exists it is obvious p that the mortgage in question constitutes a debt within the meaning of section 7 of the Punjab Relief of Indebtedness Act. The next question for consideration is whether to a suit such as the present, section 30 (1) of the Punjab Relief of Indebtedness Act applies. Section 30 (1) runs: "In any suit brought after the commencement of this Act in respect of a debt as defined in section 7, advanced before the commencement of this Act no Court shall pass or execute a decree or give effect to an award in respect of such debt for a larger sum than twice the amount of the sum found by the Court to have been actually advanced, less any amount already received by a creditor in excess of the amount due to him under clause (e) of subsection (2) of section 3 of the Usurious Loans Act, 1918." The present suit is one substantially for redemption of a mortgage. It has been so treated by all concerned. In fact the defendants raised an objection that it was a suit for redemption and should be stamped as such, and by order of Court that Plaintiff paid Court‑fee as in a suit for redemption on the principal amount of the mortgage. The apparent form of the suit is no doubt one for a declaration that the mortgage has been discharged and that the mortgagor is entitled to the possession of the land without any further payment. It may be mentioned, however, that even a suit for possession on the ground that the mortgage has been discharged is a suit for redemption as will appear from the pro visions of Order XXXIV, rule 9 of the Code of Civil Procedure. In Abdur Rahim v. Sewa Ram and others (73 P R 1899), it was held that a suit where the plaintiff asserts that the mortgage has already been paid off and claims possession, is still one for redemption. The next question is whether a suit for redemption is a suit in respect o a debt and a decree for redemption a decree in respect of a debt, these being the conditions necessary for the application of section 30 (1). It could not be denied that it is a suit in respect of a mortgage and if the mortgage is a debt it is obvious that the suit is in respect of a debt. Similarly a decree for redemption is a decree in respect of a mortgage and, therefore, in respect of a debt. The question of the applicability of section 30 to suits for redemption has not come up for discussion 9n any decided case but I find that Jiya Lal v. Rajindar Kumar and others (A I R 1944 Lah. 115), was a redemption case and the learned Judges were prepared to apply section 30 if it could be held that the plaintiff was a debtor within the meaning of section 7 of the Punjab Relief of Indebtedness Act. I would, therefore, hold that to the present case the provisions of section 30 of the Punjab Relief of Indebtedness Act apply and as the defendants have already received more than double the amount of the principal amount the plaintiff is entitled to possession without any payment The plaint did include a prayer for a declaration that the mortgage was illegal, but this claim, which was based on a misconception of the provisions of the Regulation of Accounts Act, has been given up and was are no longer concerned with it. I would, therefore, decree this suit with the exception of the prayer about the illegality of the mortgage but would leave the parties to bear their own costs throughout. KHURSHID ZAMAN, J.‑

I agree. A. H. Suit decreed.