Ram Labhaya, J.:— This is an appeal from the judgment and decree of the Additional District Judge, Cachar, dated 25th November 1946 by which he affirmed the order of the Subordinate Judge dated 5th June 1945 granting plaintiff a decree declaring his title to and granting khas possession of the suit land by eviction of the defendants therefrom.

2. The land in suit belonged to Atan Chouba. On 11th July 1926, he mortgaged it to Abantan, defendant 3. The mortgage consideration was Rs. 300 and the mortgage was for a period of three years. Possession wag, according to the recitals contained in the document, handed over to the mortgagee, who was to continue to enjoy and possess the land on payment of revenue every year. The relevant portion of the deed of mortgage is reproduced below:

“I take Rs. 300 in cash from you by mortgaging the lands for a period of 3 years. From today you continue to enjoy and possess the lands as per schedule below on payment of revenue every year. I shall redeem the lands by paying your money within the period mentioned; until the amount is paid, the said lands will remain in your possession. I shall not be able to transfer, or fit or mortgage the said land until the amount is paid, I have not sold or gifted or mortgaged the property to anyone. I shall be punished according to law if that it found out. I have no objection to the Ejara being registered according to law. Finis 11th July 1926.”

3. The parties described the document as an Ejara, it is agreed before us that the document embodies a mortgage notwithstanding the fact that it is described as an Ejara. On 6th May 1927, Atan Chouba executed a simple mortgage in favour of plaintiff's father. The consideration for the mortgage was for Rs. 100. Plaintiffs sued on the mortgage for sale of the property. They got a decree and purchased the property in execution sale on 1st February 1937. Their case is that they also obtained delivery of possession through Court on 17th March 1938 and after obtaining possession they settled the land on tenants. Defendant 1, who claimed to have purchased the rights of Abantan, the prior mortgagee, instituted proceedings, under Section 145 of the Cr PC, against them and succeeded in getting possession through the Criminal Court. Plaintiffs have sued for a declaration of title and khas possession of the land.

4. The plaintiffs have averred in their plaint that the mortgage in favour of defendant 3 whose right defendant I claimed to have acquired, had been redeemed before their mortgage. It was mortgaged to them on this representation. Defendant 1, it is claimed, had then no subsisting right. Another ground of claim put forward was that the mortgage if not redeemed had been extinguished by operation of the law as contained in Section 9(2) of the Assam Money-lenders' (Amendment) Act, 1943.

5. Defendant 1 resisted the suit. The Courts below have come to the conclusion that defendant 1 has stepped into the shoes of the prior mortgagee, His mortgage was never redeemed as alleged in the plaint but that it stood extinguished by operation of the provisions of law contained in Section 9(2) of the Assam Money-lenders' (Amendment) Act.

6. Defendant 1 has appealed to this Court. His learned counsel urges that plaintiffs could not invoke the aid of S. 9(2) of the said Act in this suit as framed. He also contends that the mortgage in favour of the defendants not being usufructuary, S. 9(2) had no application.

7. I see no force in the first contention. Plaintiffs had purchased the property in the course of the execution of their decree for sale. The rights of the mortgagor were thus acquired by the plaintiff. The sale of the property no doubt would be subject to the rights of the prior mortgagee if his rights were subsisting. Plaintiffs' case was that either that prior mortgage had been redeemed before his mortgage or it has been extinguished by operation of law and defendant 1 has, therefore, no subsisting rights. Now, it is not disputed that plaintiffs purchased Page: 20the property in execution sale and they stopped into the shoes of the mortgagor. If the prior mortgage has been extinguished, he can claim possession on that basis. If on the other hand, the mortgage is still subsisting, he must redeem the prior mortgage in order to obtain possession of the property. Section 9(2) lays down that a usufructuary mortgage the consideration for which does not exceed Rs. 500 if made before the Act as in this case shall be extinguished on the expiry of a period of 12 years from the date of its execution. If the mortgage is usufructuary, it would stand extinguished on 11th July 1938, and defendant 1 will have no right to remain in possession of the property. If a mortgagor claims possession of the property on the ground that the mortgage has become extinct by reason of the expiry of the period of time laid down for it in S. 9(2), he could sue for title and possession. This suit is based on the right which S. 9(2) gives to the mortgagor whom the plaintiffs admittedly represents. This provision of the law deals with substantive rights and not with procedure. It lays down that a mortgage of the kind referred to therein would automatically stand discharged on the expiry of a period of 12 years. If, therefore, S. 9(2) applies, the mortgagor will be entitled to sue for possession without payment of any money and if he also asks for a declaration of title, he would not be offending against the letter or the spirit of the Act. I have no hesitation in repelling this contention.

8. The second contention raised is that the mortgage on which defendant 1 relies was not usufructuary in nature and therefore the provisions contained in Section 9(2) of the Assam Money Lenders (Amendment) Act, 1943, are not attracted. This contention must prevail though on grounds wholly different from those on which the learned counsel has based it. The relevant part of the mortgage deed has been reproduced above. It provided that the mortgage was for a period of three years and that from the date of the execution of the deed, the mortgagee was to enjoy and possess the lands on payment of revenue every year. The further provision is in the following terms—

“I shall redeem the lands by paying your money within the period mentioned; until the amount is paid, the said lands will remain in your possession.”

9. This is a clear undertaking to pay the money within three years. 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 the converted into an anomalous mortgage being a simple cumusufructuary mortgage. An undertaking or a promise to pay money or rather the personal covenant is found in this document Bide 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 the right to bring the property to sale. The mortgage, in these circumstances, cannot be treated as purely usufructuary. This view of the law finds support from Qadir Parast Khan v. Mehr Nur Mahomed, A.I.R (22) 1935 Lah. 103 : (16 Lah. 612). In this case, the mortgage deed provided that the mortgage money would be paid on the 1st of Poh, Sambat 1984, corresponding to 15th December 1927 when the land would be redeemed. It was held that the mortgage though partly usufructuary contained an express promise on the part of the mortgagor to pay the sum on a particular date and to redeem the land on that date. Taken as a whole the mortgage, therefore, was an anomalous one.

10. In the present case there is similarly an express promise to pay the money not on a specified date but within a specified period. This distinction is without a difference. The principle of the Lahore case; (A.I.R (22) 1935 Lah. 103 : 16 Lah. 612) therefore, fully applies to this case. It was further held in that case that “usually a personal covenant to pay is held to have the effect of implying a right of sale.”

11. In Mahomed Saeed v. Habdul Alim, A.I.R (34) 1947 Lah. 40 : (I.L.R (1946) Lah. 805), a Full Bench of the Lahore High Court held that the mortgage deed before them contained a personal covenant. Having found this, they held that

“it was 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 terms to the contrary.”

12. Other cases which support the Lahore case may now be examined. In (1) Hikmat-ullah Khan v. Imamali, 12 ALL. 203 : (1890 A.W.N 87), land was mortgaged for a terms of four years. The mortgage money was to carry interest. The mortgagee was put in possession of the property. It was further stipulated that the mortgagee will pay Government revenue and after defraying the village expense, whatever profit will remain will be credited towards the yearly interest and if there was any further balance it was to be credited towards principal. In case of any deficiency, the mortgagor was to make it good from his pocket and on his paying the whole of the money, principal and interest, at the time of the expiry of the term, the mortgaged property was to be redeemed. It was held that the instrument could Page: 21not be regarded as strictly falling within the definition of cl. (d) of Section 58 of the Transfer of Property Act ‘asit was lacking in a stipulation in terms that the mortgagee is to remain in possession until payment of the mortgage money.’ The learned Judges, in these circumstances decided to apply the principal enunciated in Section 98 of the Transfer of Property Act.

13. (2) In Chhatilal v. Bindeshwari Prasad, 8 Pat. 16 : (A.I.R (16) 1929 Pat. 605), a zarpeshgi deed executed for a term of years but which did not authorise the mortgagee to retain possession until repayment of the mortgage money was held to contain an implied covenant on the part of the mortgagor to pay the money even though the bond did not contain an express promise to repay. The transaction was held not to be usufructuary mortgage within the meaning of Section 58(d) of the Transfer of Property Act. It was held that in such a case the mortgagee was entitled on the expiry of the term to sue for the mortgage money irrespective of whether the security has been rendered insufficient or the mortgagee has lost possession of the mortgaged property.

14. (S) A Division Bench of the Bombay High Court considered the question in Dattambhat v. Krishnabhat, 34 Bom. 462 : (7 I.C 446). The mortgage provided that the mortgage money shall be repaid within two years. The recital in the mortgage deed was as follows “I shall repay your money in two years from today.” The mortgage was with possession. The mortgagee was to cultivate the land and enjoy it in lieu of interest. It was held that it was not a case of a purely usufructuary mortgage but a case in which the mortgage money was to become payable by the mortgagor and therefore in the absence of a contract to the contrary, the mortgagee had the right under Section 67 of the Transfer of Property Act, to an order that the property be sold.

15. (4) The facts in K. Gurukal v. Kalimuthu Anavi, 27 Mad. 526 (F.B) are identical with the facts of this case. The relevant portion of the mortgage deed was as follows:

“Thereafter, on (naming a date) on paying (the amount advanced) we shall redeem our land. If on the date so fixed the amount be not paid and the land recovered back, in whatever year we may pay (the amount advanced) on (naming the date) of any year then you shall deliver back our lands to us.”

16. It was held that the mortgage deed contained a promise by the mortgagor to pay on the date named and this entitled the mortgagee to a decree for the mortgage money under cl. (a) of Section 68 of the Transfer of Property Act and to a decree for sale under S. 67, the right to cause the mortgaged property to be sold in default of payment being implied within the meaning of S. 68(b). The learned Judges found that the mortgage was a combination of simple and usufructuary mortgage within the meaning of Section 98 of the Transfer of Property Act, and therefore the mortgagee was entiled to bring the property to sale for recovery of his money.

17. A discordant note, however, has been struck in a Division Bench decision of the Calcutta High Court reported in Bhut Nath v. Gopal Prosad, A.I.R (27) 1940 Cal. 436 : (193 I.C 26). The mortgage in this case was with possession and the stipulation was that the mortgagee should remain in possession till the sum advanced was paid and enjoy the usufruct in lieu of interest. The mortgage bond further mentioned a period after which the mortgagor undertook to redeem the property on payment of the principal money. Relying on a previous case decided by the Court Luchmeshar Singh v. Dukhmochan Jha, 24 Cal. 677 the learned Judges held that the provision of a term in a usufructuary mortgage was contemplated by Section 62(b) of the Transfer of Property Act. The undertaking on the part of the mortgagor to redeem the property after the fixed term was held not to entitle the mortgagee to demand the money after the expiry of the due date. The covenant in the mortgage that the mortgagee would go on holding and enjoying the property even after the default by the mortgagor was taken as indicating that the mortgagee could not sue for recovery of the money by sale of the property.

18. Clause (b) of Section 62 of the Transfer of Property Act, as it stands covers all the classes of a usufructuary mort gage as defined in S. 58(d) which are not included in cl. (a). It recognises that the mortgagee may be given possession and the right to pay himself from rents and profits or any part thereof for a term fixed in the deed of mortgage. Cases covered by cl. (b) are generally cases in which the mortgagee pays himself out of the property mortgaged or any part thereof. The arrangement contemplated by this section is conceivable without a personal covenant. Where, however, a document embodies in express terms or by necessary implication a personal covenant or an undertaking to pay the mortgage money, the case would be taken out of the ambit of S. 58, cl. (d). The determining factor in each case would be the terms of the document itself.

19. In the Calcutta case there was an undertaking by the mortgagor to redeem the property on payment of the principal money after the expiry of a term. This undertaking or obligation created a corresponding right on the mortgagee. If the mortgagor was bound by the terms of the mortgage to pay the principal sum and redeem the mortgage on a given date, the breach on his part would give the right to the mortgagee to recover the money. There can be no obligation without a corresponding right. The learned Judges held that though the undertaking to redeem on payment of the principal money was Page: 22there in the mortgage, the deed did not say that the mortgagee will be entitled to demand the money on that date. This need not be stated expressly. A personal covenant does imply that the mortgagee has the right to bring the property to sale on default. The condition in the document allowing the mortgagee to continue in possession even after the default till the amount is paid does not deprive the mortgagee of the right to demand money when the breach of the obligation to pay occurs. There would be no point in an undertaking if it is not capable of enforcement. It can be enforced only if there is a corresponding right to sue in the mortgagee. The view taken in this case conflicts with the view taken in the cases discussed above.

20. The Patna case referred to above represent the extreme view. It was held that where mortgage is redeemable after a term, there is an implied personal covenant. It is not necessary for the purposes of this case to go so far. In the case before us, there is a personal covenant contained in the document and the necessary implication of the covenant is that it gives rise to a corresponding right in the mortgagee to recover the amount by sale of the property if it is not paid within the period specified.

21. The mortgage deed in the. Full Bench case of the Madras High Court provided that the mortgage will be redeemed on a certain date and if it was not redeemed on that date, it could be redeemed on a fixed date in any subsequent year. In spite of this, it was held that there was a personal covenant contained in the deed. It is clear that the view taken in the Calcutta case is opposed to all other cases discussed above. We find ourselves in respectful agreement with the majority view and hold that the mortgage in this case is not purely a usufructuary mortgage containing as it does a personal covenant. It can be appropriately described only as an anomalous mortgage.

22. Mr. Ghose has relied on Towahir Ali v. Md. Moniruddin, 53 C.W.N 96, in support of his contention. This case is obviously distinguishable. Besides, my learned brother did not intend to lay down any rule of general application in that case. It may also be remarked that his observations as to the requirements of a usufructuary mortgage are obiter.

23. In view of our finding that the mortgage deed does not fall within the purview of Section 9(2) of the Assam Money-lenders' (Amendment) Act, it must be found that the mortgage is still alive and had not been extinguished by the expiry of a period of 12 years from the date of its execution. The plaintiff, in these circumstances, would not be entitled to a decree for possession against defendant 1, whose mortgage is yet alive without paying the mortgage money.

24. The mortgagor has the immediate right to redeem the property. Plaintiff, in these circumstances, may remove the encumbrance on the property by paying off the mortgage money due to defendant 1. Without this payment, he cannot demand possession of the property a against defendant 1. The decree in plaintiffs' favour therefore must be modified accordingly. We, therefore, order that on deposit of Rs. 300 due to defendant 1 on his mortgage in Court, plaintiff will become the owner of the property and will be entitled to possession. The appeal has succeeded partially. In view of the somewhat complicated nature of questions involved in the case, it is ordered that parties shall bear their own costs throughout.

Thadani, A.C.J:— I agree.

25. Order accordingly.