1. We have no doubt, on a construction of Ex. A, that it is a deed of mortgage, as it expressly says in several places that it is executed as a mortgage of certain immovable property and the profits of the properties are to be spent for the expenses of the mortgagee, which is a religious endowment of which the plaintiffs are constituted trustees under that document: see Venkatarama Aiyar v. Suppa Nadan(1).
2. The arguments of the appellant's (defendant 5's) learned vakil, which are based on the construction that Ex. A is not a deed of mortgage, and hence that the provisions of Section 68, Clause (b) of the Transfer of Property Act, do not apply, need not be further considered though we might add that we tare not prepared to accept the argument of the learned vakil that in the case of a mere charge, as distinguished from a mortgage, the provisions of S. 68 as to the liability of a mortgagor who commits waste do not apply to the person creating a mere charge notwithstanding the very wide words of Section 100 of the Transfer of Property Act.
3. The only other contention on the appellant's side is that Section 68(b) of the Transfer of Property Act, makes only the “mortgagor” liable personally for the mortgage money when he commits a wrongful act or default to the prejudice of the security.
4. In other words, the contention is that the heir or the assignee of the equity of redemption is not intended by the section to be made liable personally for the mortgage money even when he himself is personally responsible for the waste. In the first place, even without a special legislative provision, every person whether the mortgagor or a stranger who commits waste to the detriment of the security of the mortgagee is liable under the general law to the mortgagee for damages to the extent of the damages of the security: Aiyappa Reddi…(Defendant) v. Kuppusami Reddi…(Plaintiff) .*(2), and S. 68(b) merely extends the rights of the mortgagee, if the wrong-doer is the mortgagor, to the length of enabling the mortgagee not only to sue for the exact amount of the damages caused but for the whole of the mortgage money itself.
5. In the next place, a provision in a statute which gives a right to or imposes a liability on a person must be deemed to confer that right and impose that liability on the person's legal representative and if it confers the right or imposes the liability on that person as the owner of a certain property, such right or liability is conferred or imposed on the as Signe of such ownership right, unless the reason of the rule of law cannot clearly apply to anybody but the original owner of the property or the original obligor.
6. There is not only no reason why the original mortgagor alone should be made liable by reason of the waste and not his representative or a purchaser of his right who is directly responsible for the waste committed: the reason of the rule applies to them also as much as to the original mortgagor. Defendant 5 who purchased the equity of redemption in a rent sale and committed waste is therefore clearly liable to the plaintiffs (mortgagees) by reason of the waste committed by him in any view of the case, and this second appeal is therefore dismissed with costs.
S.N/R.K
7. Appeal dismissed.