1. This is an appeal by the defendant in a suit to redeem two mortgages dated 15th December 1909 and 6th September 1901, executed by one Magni Ram, father of the plaintiff, in favour of Ram Kishore Ram, the predecessor of the defendants. In this appeal we are concerned with the mortgage dated the 6th September 1901, which was executed to secure a debt of Rs. 699. Under the terms of this document Magni Ram made a usufructuary mortgage of certain fixed rate and occupancy holdings for a sum of Rs. 500 and as the usufruct of the property was not sufficient to keep down the interest on the entire amount of Rs. 699, he agreed to pay interest at the rate of 1 per cent. per mensem on Rs. 199. There was a distinct stipulation in the mortgage bond that the mortgagor was entitled to take the document and the fields mortgaged on payment of the entire sum of Rs. 699 in one lump sum towards the close of the month of Jeth of any year. The document was signed by the mortgagor through the pen of Ramnaresh Lal, patwari, and the wording of the signature is pregnant with significance.
"Likhitan Mayni Ram dastawez rehannama 669-ke likhil so sahi, baqalam Ramnaresh Lal patwari ke Nishani Magni Ram Ahir."
2. The plaintiff seeks to redeem this mortgage on payment of Rs. 500 only and not on payment of Rs. 699 and interest due. It was contended on his behalf that Rs. 199 was not charged upon the mortgaged property; that the stipulation as to the payment of Rs. 199 at the time of redemption along with Rs. 500 was a clog on the equity of redemption: that Rs. 199 was a simple money debt payable on demand, and that the mortgagee's claim to this was time barred under Article 132, Indian Limitation Act.
3. The defendants pleaded that Rs. 199 was charged on the mortgaged property and was payable along with the sum of Rs. 500 towards the close of the Jeth of any year, and the stipulation as to its payment along with the sum of Rs. 500 was not a fetter on the equity of redemption, and the claim as to this sum was not time barred.
4. The Court of first instance sustained the plaintiff's pleas and allowed redemption on payment of Rs. 500 alone. The lower appellate Court has affirmed this decision. Hence this appeal.
5. The three pleas taken in the memorandum of appeal resolve themselves practically to one plea which hinges upon the construction of this document in dispute. The document was drafted by an ignorant and unskilled patwari whoso knowledge of grammar is elementary and whose education in the matter of drafting documents borders upon the freezing point. Document like this should not, therefore, be construed with such meticulous severity as though it was drafted by a skilled conveyancing lawyer of Lincolns Inn. In having to gather the intention of the parties the document has to be construed as a whole, and it would be an unsafe guide to consider one document, by borrowing light from the construction of another document, the terms of which are not identical or parallel. Examining the document closely, we find (1) that it was executed for a consolidated sum of Rs. 699, (2) that the entire amount was not payable piecemeal on different occasions but at one and the same time, namely, towards the close of the Jeth of any year, (3) that there was a distinct agreement that the mortgage bond was to be returned to the mortgagor and delivery of the mortgaged property made on payment of Rs. 699 and (4) that while signing the document the mortgagor described this document as a mortgage-deed for Rs. 699.
6. The cumulative effect of the facts set out above is that the document was intended by the parties to operate as a mortgage-deed to secure the sum of Rs. 699. There was a distinction between Rs 500 and Rs. 199 because the usufruct of the mortgaged holdings was insufficient to keep down the interest on the sum of Rs. 199. But there was no reason for the mortgagee not to have intended to charge the remaining sum of Rs. 199 together with interest on the mortgaged property. Disagreeing, therefore, with both the Courts below, we hold that the document in suit was a mortgage bond for Rs. 699.
7. In view of our decision on this point it follows that the stipulation as regards the payment of Rs. 199 simultaneously with Rs. 500 for which the holdings were usufructuarily mortgaged, does not and cannot amount to a clog on the equity of redemption. No collateral advantage is secured to the mortgagee independent of the mortgage contract, and there is nothing in the mortgage bond which would, in the words of Lord Hardwicke, in Mellor v. Lees 2 Atk. 494, amount to a design to wrest the estate fraudulently out of the hands of the mortgagor. Unless a collateral advantage is secured to the mortgagee which amounts to an imposition of a liability upon the mortgagor either by limiting the user of the mortgaged premises or by rendering him personally liable in damages, a mere stipulation to pay an amount due to the mortgagee simultaneously with other amounts due to him and which are charged upon the mortgaged premises, cannot in law be construed to be a clog on the equity of redemption. This may be taken to be the result of the decisions of the House of Lords in Noakes and Co. v. Rice [1902] A.C. 24 and Bradley v. Carritt [1903] A.C. 253 and there is nothing in the Indian law inconsistent with the above.
8. According to the terms of the bond, the sum of Rs. 199 was payable simultaneously with the sum of Rs. 500 for which the holdings were usufructuarily mortgaged. It was not open to the mortgagee to sue for recovery of Rs. 199 as a separate and independent transaction. In this state of things no plea of limitation can arise. The learned Counsel for the respondent, however, relies upon Kesar Kunwar v. Kashi Ram [1915] 37 All. 634 in support of the proposition that the claim to Rs. 199 was barred by limitation long before the present suit for redemption. In this case one Bhim Singh, on the 13th February 1880, executed a usufructuary mortgage for Rs 900 for four years in favour of Kirpa Ram. Later on, on the 22nd July 1882, a second mortgage was executed for Rs. 95 in favour of the same mortgagee, and there was a stipulation that the first mortgage was not redeemable till the amount of the second mortgage was paid. The legal representative of the original mortgagor sued to redeem the mortgage dated 13th February 1880, without offering to pay the money due on the second mortgage. The defendant, who was the legal representative of the mortgagee, pleaded consolidation and claimed that the first mortgage was not redeemable without paying the money due on the second mortgage. The contention of the defendant, however, was repelled by Richard, C.J. and Piggott, J., who held that the money due on the second mortgage was barred by limitation at the date of the suit, and that the plaintiff, therefore, was entitled to redeem the first mortgage without having to pay the money due on the second. The learned Judges do not set out at length their reasons for this view, nor quote any authorities. All that they say is that in effect the defendant was asking the Court to enforce against this property a claim which was barred by time. It is respectfully submitted that the law of limitation does not prescribe any period which is to operate as a statutory bar to a defence. The articles of the limitation act apply to suits and applications and not to pleas by way of defence. A defendant may always, by way of equitable defence, set up his mortgage-deed as a shield although his right to enforce the mortgage may have become statute barred. In the present case we have held that the defendants' right to Rs. 199 together with interest was not barred by time.
9. Out of respect for the learned Judges who decided the above case, we think it desirable to give a reference to a number of cases of this Court which are in accord with our view both on the question of the interpretation of the document as also limitation. In Letters Patent Appeal No. 57 of 1916, decided by Richards, C.J. and Banerji, J., on the 12th December 1917, Jayardip Rai v. Naubat Rai [1917] 38 I.C. 149, the terms of the mortgage bond were not dissimilar to the mortgage bond in suit, and the respondent specifically relied on the case of Kesar Kunwar v. Kashi Ram [1915] 37 All. 634, referred to above, as authority for the proposition that the claim for the smaller sum of Rs. 45 was time barred. It is significant that the learned Judges make no reference whatsoever to the last-mentioned ruling to which one of them was a party, but they repelled the contention of the respondent and observed:
that they had no doubt that the view that they had suggested was a correct one.
10. This view appears to be in conformity with other decided cases such as Ulfat Rai v. Kandhaiya Lal A.I.R. 1922 All. 41, Jaut Koeri v. Mathura Koeri A.I.R. 1926 All. 171 and Har Prasad v. Ramchandra A.I.R. 1922 All. 174.
11. We hold, therefore, that on a true construction of the bond in suit Magni Ram executed a mortgage for a consolidated sum of Rs. 699, the interest for the payment of Rs. 500 being secured by the usufructuary mortgage of the holding, and the balance together with interest was charged upon the same property, that the stipulation for the payment of Rs. 199 with interest at the time of the redemption of the fields mortgaged was not a clog on the equity of redemption and the mortgagee's claim to the sum of Rs. 199 with interest was not barred by time. We, therefore, allow the appeal, modify the decree of both the Courts below and direct that the plaintiff is entitled to redeem on payment of Rs. 199 together with interest at the stipulated rate in addition to Rs. 660. Let a fresh decree be prepared under Order 34, Rule 7, Civil P.C. We leave the parties to bear their own costs in both the Courts below. The plaintiff is liable to pay the costs of the defendant-appellant of this Court.
Iqbal Ahmad, J.
12. I agree generally with the judgment that has been delivered by my learned brother, but in arriving at the conclusion at which my learned brother has arrived, I have been influenced, solely and wholly, by the terms of the mortgage-deed in question. On a true construction of that deed, it appears to me that the property sought to be redeemed was mortgaged for the entire amount secured by that deed and the intention of the parties was that the sum of Rs. 199 with interest was to be paid at the time of redemption of the mortgage.
13. In short, the mortgagee, on a true interpretation of the deed, could not, before the mortgagor sought to redeem the mortgaged property, claim the sum of Rs. 199 with interest. In other words, a suit for the recovery of Rs. 199 with interest prior to the date of the redemption of the mortgage would have been premature. That being so, time for the recovery of that amount could not run against the mortgage till the mortgagor sought to redeem the mortgage. In this view of the case the question of limitation does not arise, and the mortgagee is entitled to insist that the mortgagor should pay the entire amount secured by the deed with interest on the sum of Rs. 199 as a condition precedent to the date of the mortgage.