Gupta, J. - (1.) THIS second appeal of the defendants arises out of a suit filed against them by the respondents for payment of mortgage money and sale of the property mortgaged under a mortgage deed Ex. P-1 dated the Chaitra Shukla 13th Samwat 1998, executed by Bastichand, father of the appellants for Rs. 1413/- After reciting that Rs. 1415/- was found due to the mortgagee on taking account of the past dealings between the parties, the deed of mortgage contains the following stipulations which were agreed upon between the parties and which are relevant to the contention in this appeal : - (1) That the said amount will be paid with interest at 12 annas per cent per month. (2) That as a security for payment of the above sum, three pattasud houses situated in Mohalla Meharwara of Jalor belonging to the mortgagors, a description of which was given in the deed and which were already in possession of the mortgagees will continue to remain in their possession. (3) That the rent of the house recovered by the mortgagees would be applied towards payment of the interest on the mortgage money. (4) That the amount of interest that would remain unpaid out of the rent of the house will be debited to the mortgagors. (5) That at the time of redemption, the mortgagors will pay the principal sum secured together with the amount payable under stipulation (4) and then redeem the houses.
(2.) THEN follows the description of the houses followed by the following further stipulations : - (6) That the above mentioned houses are mortgaged. (7) That the mortgagors will pay the mortgage money on demand and redeem the houses and that on default, the mortgagees in whose favour the deed is executed will be entitled sue. (8) That the mortgagees will be entitled to carry out necessary repairs etc. and the amount spent on them will be paid with interest at the aforesaid rate at the time of redemption. It is clear from the above stipulations that the mortgage is not a pure usufructuary mortgage. It is a combination of a mortgage and usufructuary mortgage in as much as there is a personal liability to pay the mortgage money. The plaintiffs claimed, besides the principal amount, a sum of Rs. 992/8/- on account of interest because, it was averred, the mortgagors did not pay the rent of the house which they had taken on lease under a separate Kabuliyat executed on the same day the mortgage deed was executed. In their claim, the mortgagee plaintiffs also included a sum of Rs. 167/8/- on account of two bonds of Chaitra Shukla 8th Samwat 1998 for Rs. 49/- and of Magh Krishna 8th Samwat 1988 of Rs. 71/14/9 both of which carried interest. Though in their written statement, an objection was raised on behalf of the Defendants on the ground of misjoinder of claims, neither any ground has been taken in their behalf in this appeal nor any arguments have been addressed. It is not, therefore, necessary to consider this question. As the executant of the mort-gage deed Bastichand had since died, the suit was filed against Jeetmal, Ratanchand, Bhawarlal, and Partap-chand, his minor sons through their guardian Poonamchand. The sub-Judge, Balotra who tried the suit has decreed the plaintiffs' claim in full, but has ordered that the humors of Rs. 167/8/- will not be a charge over the mortgaged property but will be recovered from the defendants out of the property inherited, if any. Against the decree of the sub-Judge, Balotra, the defendants took an appeal to the District Judge, Balotra but were unsuccessful. They have now brought this second appeal to this court. In this appeal, as in the appeal below, the learned counsel for the appellants has confined himself to the contention that the plaintiffs were not entitled to sue for the mortgage money nor to bring the property to sale. It was pointed out during the course of arguments at the Bar that the Transfer of Property Act of India was applied to Marwar in 1948 A. D. and that inasmuch as the mortgage transaction in question was entered into between the parties long before 1941, it was not to be governed by the provisions of the Transfer of Property Act. However, there are authorities in which it has been held that though in the Marwar Transfer of Property Act was not applicable with all its technicalities, its provisions as to matters of principle were commonly to be followed especially when the provisions of the Act were consistent with the principles of equity, Justice and good conscience (vide 1944 M. L. R. 63 and 1941 M. L. R. 119 ). In our opinion, the provisions contained in section 67 and 98 of the Transfer of Property Act are such as incorporate in themselves equitable principles and can be applied by the courts of Marwar. They are not, in our opinion, merely technical. Section 67 of the Indian Transfer of Property Act relevant to the matter in issue reads as follows: - "67. In the absence of a contract to the contrary, the mortgagee has at any time after the mortgage-money has become due to him, and before a decree has been made for the redemption of the mortgaged property, or the mortgage money has been paid or deposited as here-in-after provided, a right to obtain from the court a decree that the mortgagor shall be absolutely debarred of his right to redeem the property, or a decree that the property be sold. . . . . . . . . . . . Nothing in this Section shall be deemed - (a) to authorize any mortgagee, other than a mortgagee by conditional sale or a mortgagee under an anomalous mortgage by the terms of which he is entitled to foreclose, to institute a suit for foreclosure or a usufructuary mortgagee as such or a mortgagee by conditional sale as such to institute a suit for sale; or" and section 98 reads; "98. In the case of an anomalous mortgage, the rights and liabilities of the parties shall be determined by their contracts as evidenced in the mortgage deed, and, so far as such contracts does not extend, by local usage. " After some arguments the learned counsel for the appellant conceded that the mortgage in question was an anomalous mortgage and not a usufructuary mortgage. He, however, contended that the mortgagees were not entitled to bring the property to sale. The mortgagees according to him were, at the most, entitled to obtain a simple money decree. He based his contention mainly on the language of section 98 which has been reproduced above. His contention was that inasmuch as the mortgage deed contained no specific stipulation that the mortgagee could bring the mortgaged property to sale this right could not be held to be implied in the mortgagor's covenant to pay the mortgage money. The learned counsel cited a number of rulings in his support and laid great stress on the principle laid down in the decisions reported in A. I. R. (i) 1939 All. 260, (2) 1942 All. 326, (3) 1941 Pat. 486 and 1940 Gal. 436. The counsel for the respondents, on the other hand relying upon the decisions reported in AIR (2) 1935 Lah. 103, (2) 1947 Lah. 40, (3) 1927 P. C. 32, and {4) 1929 P. C. 139 and I. L. R. 17 Mad. 131, 26 Mad. 662, and 27 Mad. 526, contended that where a personal covenant was found in a mortgaged deed side by side with the right of the mortgagee to enjoy and possess the lands, it is implied that the mortgagee had the right to bring the property to sale. We now consider the cases cited by the appellants' learned counsel. In the bond in question in the case reported in A. I. R. 1942 Allahabad, the mortgagee was given the right to sue for his money in certain circumstances and not the unconditional right to demand payment whenever he so liked as is the case in the mortgage bond before us, and it was held that the mortgagee in a suit based upon a covenant was entitled only to a simple money decree. The learned judges appear to have negatived the mortgagee's request for a decree for sale because he had never made a case, in the trial court, that he was entiled to such a decree under any of the provisions of section 68 and because to allow him to change the whole nature of the case and to recover his money by sale of the mortgaged property at that stage would have possibly caused considerable injustice to the contesting respondents who were subsequent mortgagees and were not parties to the various transactions between the mortgagors and the mortgagee, otherwise it seems their Lordships felt themselves bound by the Fall Bench decision reported in A. I. R. 1938 All. 418 in which the learned judges purporting to follow the Privy Council decision reporter in A. I. R. 1929 P. G. 139 passed a decree for sale in favour of the usufructuary mortgagee. In our opinion, this case does not at all help the appellants. On the contrary it lends support to the opposite view inasmuch as it very clearly appears that, had it not been for the fact that the mortgagee had not made out a case in the trial court which his counsel made out in the second appeal and for the fact that the change of the nature of the case, if allowed at that stage would have caused considerable injustice to the contesting respondents who were neither the mortgagors nor the mortgagees their Lordships would have given the mortgagee a decree for sale of the mortgaged property. In the case reported in A. I. R. 1939 All 260 the mortgage deed contained a covenant to pay the principal and interest within three years. It was further stipulated that, in default of payment within the time specified, the mortgagee would be entitled to sue for foreclosure; the mortgage bond would be regarded as a deed for sale, consideration being the unpaid portion of the money advanced under the mortgage. The mortgagee filed a suit for foreclosure of the mortgage and claimed a personal decree against the mortgagors or their heirs. It was held that there was no personal covenant on the part of the mortgagors to pay the mortgage debt and the mortgagee was not entitled to a personal decree. In the mortgage before us, as already stated, there is a stipulation to pay the principal and interest on demand by the mortgagee and the decision has no bearing on the case before us. The Mortgage in the case reported in A. I. R. 1940 Cal. 436 was with possession and it was provid-ed that the mortgagee was to remain in possession till the sum advanced was paid and to enjoy the usufruct in lieu of interest. It was further provided that the mortgagor would, after a fixed period, redeem the property on payment of the principal money. The learned judges relying on a previous judgment of the court reported in I. L. R. 24 Cal. 677 held that the provision of a fixed period in a usufructuary mortgage was contemplated by the provisions of section 62 (d) of the Transfer of Property Act. The mortgagor's undertaking to redeem the property after a fixed period was held not to entitle the mortgagee to demand the money after expiry of the due date. But in the case before us there is a covenant in express terms to pay the mortgage money and the case stands out of all the classes of usufructuary mortgages. Besides the covenant on behalf of the mort--gagor to pay the mortgage money, the mortgagee has been given the right to demand payment at any time he likes which was not the casein the Calcutta case under discussion. Under the circumstances, the case is clear and distinguishable. In our opinion, the Calcutta decision also does not support the appellants' learned counsel. In the Patna case relied on by the appellant's learned counsel all that was provided was: - "when the term of this deed will expire-----------then at that time the executant on paying the entire mortgage money will get back the deed and the Rehan will be redeemed. In case of nonpayment, this deed with all the above conditions will precisely remain intact and hold good till the payment of the said Rehan money---- -. When we shall pay the said Rehan money, we shall pay it towards the end of Bhadon of any year:" and it was held that there was merely a provision that. the bond may be redeemed at the end of Bhadon 1338; but if it was not, the term of the bond was extended. There was no promise by the mortgagor to repay the amount and therefore a suit to recover the amount of money advanced could not succeed. As remarked by his Lordship Harries C. J. each case must depend upon the particular terms of the bond and in the case before us, there is an express covenant to pay the mortgage money whenever demanded by mortgagee, and therefore, in our opinion, this Patna case also has no bearing to the facts of the case before us. In our opinion, the case is covered by Sec. 67 quoted above and the mortgagee having made a demand for his money, he has become entitled to sue for his money and obtain a decree for the sale of the mortgaged property. At any rate, as the mortgagor has failed to pay the mortgagee has become entitled to obtain a decree for sale of the mortgaged property. The case is fully covered by the full Bench decision reported in A. I. R. 1947 Lah. 40. In that case a Division Bench of that court had referred the following question for decision by a Full Bench. "when a mortgage with possession contains a personal covenant to pay the principal by a certain date or a covenant to pay interest which may not be wholly covered by the usufruct of the property, does it for either of these reasons cease to be a purely usufructuary mortgage and dose it become at the same time a simple mortgage on which the mortgagee can bring the mortgaged property to sale?" The Full Bench judgment was delivered by Justice Mahajan who after discussing the case law has remarked; "to my mind, it is a settled proposition of law that if a deed of mortgage contains a personal covenant to pay the principal mortgage debt or interest by the mortgagor such a covenant implies the right of sale unless there is some specific term to the contrary. " We see no force in the criticism of the learned counsel for the appellants that the above observation is an obiter dictum. The above view was also the view of a Division Bench of the same Court expressed in the decision reported in A. I. R. 1935 Lah. 103. The same appears to be the view of the Privy Council in A. I. R. 1929 P. C. 139 which has already been referred.
(3.) THE latest decision on the question is one reported in A. I. B. 1950 Assam, 18 wherein a number of authorities have been discussed and his Lordship Ramlabhaya J. has expressed himself in the following words : "where there is an express undertaking to pay money contained in a deed of mortgage, even though the mortgage is with possession, it is not an out and out a usufructuary mortgage. It partakes of the character of a simple mortgage also and is thus converted into an anomalous mortgage being a simple cum usufructuary mortgage. An undertaking or a promise to pay money or rather the personal covenant is found in this document side by side with the right of the mortgagee to enjoy and possess the lands on payment of land revenue. Wherever there is a personal covenant in a mortgage it implies that the mortgagee has a right to bring the property to sale. " In the case before us, the learned counsel for the appellants has laid great emphasis on the provisions of sec. 98 and argued that an anomalous mortgage is to be governed by the provisions contained in the mortgage bond and that where the mortgage does not contain a stipulation that the mortgaged property could be brought to sale, no such stipulation should be taken implied in the mere covenant to pay the mortgage money. This contention of the learned counsel in our opinion, has no force. Section 98 of the Transfer of Property Act cannot be read as if it were absolutely independent of 67. In our opinion section 67 and 98 have to be read together. In the light of the settled proposition of law enunciated in the above decision and many other decisions, we hold that in the case before us the mortgagee is entitled to a decree against the mortgagors appellants for money and to a decree for sale of the mortgaged property. This appeal has, therefore, no force and is dismissed with costs. Bapna, J.- I agree. .;