Huges, J. — The first question argued in this appeal relates to the alleged invalidity of the mortgage, on the ground that it was not properly attested. This question, in my opinion, has not really been considered by the District Munsif, in his judgment and he has given no decision about it. He says no doubt in paragraph 10:
“P. Ws. 1 and 2 have both attested Ex. A. Their evidence shows that they attested Ex. A, at the request of defendant and that they were not present at the time of execution of Ex. A by the defendant. In his written statement, defendant did not put plaintiff to proof of the suit mortgage deed, Ex. A. Plaintiff appears to have put these two witnesses into the box only to prove the consideration for Ex. A. The fact that P. Ws. 1 and 2 did not see the defendant execute Ex. A, by itself does not count much for defendant. Taking the evidence and the probabilities into consideration, I come to the conclusion that defendant has miserably failed to prove his case. I therefore find the first issue against the defendant.”
The first issue deals only with the question of consideration. Now the District Munsif was quite right in giving no decision as to the question of validity. The defendant did not raise this point in his written statement in the suit; in paragrph 6 of that statement, he treated the mortgage as valid; he said nothing about its invalidity in his own evidence; the trial proceeded on the footing that the deed was a valid mortgage and on that basis the whole trial was closed. If, as is stated, the matter was referred to in the arguments before the District Munsif, no request was made that an issue should be framed. If an issue had been framed, the witnesses, P. Ws. 1 and 2 and the defendant might have been properly questioned about it. The evidence of P. W. 2 on the point is ambiguous and certainly requires amplification. There was another attestor, who was not examined as a witness in the case and the plaintiff might certainly have been able to prove that there was proper attestation. In the case reported in Sricharan v. Makhan Lal, it was held that the objection that a mortgage bond is not duly attested cannot be allowed to be taken for the first time in the Appellate Court, as it raises a mixed question of law and fact. In the present case, the objection was not raised properly before the District Munsif and the Subordinate Judge was right in disallowing it. We have been referred by the appellant to some cases. Shamu Pattar v. Abdul Kadir Bavuthan, Vadla Nayiah v. Valunu Divakara Mudaliar(3), and Muniappa Chettiar v. Vallachamy Hannadi(4); but in these cases an issue had been framed in the trying Court, with reference to the question of validity and that distinguishes those cases from the present case. The respondent has referred us to Satish Chandra Mitra v. Jogendranath Mahalanabis(5). That was a case which dealt with the question of proof of execution and not with the question of validity; but it is there as pointed out that the admission of the party to the document of its execution would dispense with the necessity of all further proof as against him. This is of some importance as indicating that in such a case it is only where the question of invalidity is raised that it would be necessary to go into evidence with respect to the attestation. The question was not properly raised before the District Munsif; the evidence on that point before him was incomplete and even as it stood did not establish the fact that Ex. A was not duly attested; and on the record, the District Munsif was not bound to frame an issue and he was not asked to do so. The Subordinate Judge rightly disallowed the question and it cannot be allowed to be raised here. The second point argued in this appeal is that in Ex. A, the mortgage deed, there is no personal convenant on the part of defendant to pay. Several cases have been referred to, but where it is a question of construction of a document, cases are not very helpful, for each document has to be considered on its own merits. Ex. A recites:
“I have this day usufructuarily mortgaged to you Survey No. 500 A, 1 acre and 5 cents of land, which my wife Ranganayaki Ammal was enjoying and which I have got by exchange and am enjoying in the village of Poundareekapuram, attached to Thiruvadamaruthur Maganam, Thiruvadamaruthur Sub District, in Kumbakonam Taluk, and the amount which I got thereon as a loan is Rs. 1000 …. You shall yourself enjoy the said land from this date, in lieu of interest and having paid the amount of the principal by the 7th July, 1917, having endorsed on this deed I shall enjoy the said land, … If the amount be repaid at the cultivation season of any Ani month, after the due date on which it falls due, the same must be received in full and the land restored to my possession.”
The case in Hakeem Patte Muhammad v. Shaik Davood has been referred to; but in that case, it seems to have been taken for granted that there was no convenant to pay. In the case in Rangayya Pillai v. Narasimha Aiyangar, the report does not contain the full terms of the document and the judgment only construes the proviso, which is similar to the last sentence in Ex. A and states that there are no other recitals in the deed, to suggest that there was any personal covenant. I do not think that the case in Kunhimaikutty Beari v. Halekote Aisabi helps us. But the case in Sivakami Ammal v. Gopala Savundram Ayyan is useful, as it shows that the proviso at the end of Ex. A is simply to limit the discretion of the mortgagor to repay the money, at a season when the land could not be bringing the mortgagee any profit. The case in Kangaya Gurukkal v. Kalimuthu Annavi seems to me very much in point. It deals with a document drawn up, in terms very similar to the deed under consideration and decides there was a personal covenant to pay. Ex. A fixes a date for payment and recites that the mortgagor, having paid the money by the date, will take back the land. I am satisfied there is a personal covenant to pay.
The appeal must therefore be dismissed with costs.
Odgers, J.—With regard to the first point, I would content myself with saying that it is not proved on the evidence that the mortgage deed (Ex. A) was not duly attested according to law. The plaintiff's witnesses were called to prove a totally different point—now given up by the appellant—and the evidence of one of them may not be inconsistent with due attestation.
There was also admittedly a third attestor who was not called. The question of the validity of the mortgage was never put in issue—was in fact admitted by the defendant in his written statement. It is obvious that it would be dangerous to remit the case for a finding on this question now, even supposing it were open to us to do so. The point fails. As to covenant in Ex. A, we have had the material parts of Ex, A retranslated by the Chief Interpreter. They now appear as hereunder set forth. The mortgage is either a pure usufructuary mortgage, or a combination of simple and usufructuary, as recognised in Sect. 98, Transfer of Property Act. The appellant contends it is the former and that the clauses “Having paid the principal amount before the 7th of July, 1917, and having credited (endorsed) in this deed, I shall enjoy the said land” and “if even after the fixed time money is paid at the cultivation season of any Ani month, (you shall) receive in full and deliver the land to my possession” (the Chief Interpreter's translation) are undoubted proof for the benefit of the mortgagee, namely that he may have (1) the benefit of a fixed term and (2) may not be called upon to deliver up possession in the middle of a cultivation season. I cannot agree. The document Ex. A is executed by the mortgagor Rangaswami Aiyangar (the appellant) alone, and the reasonable construction is, in my opinion, that he took upon himself the obligation by these clauses. The words used are very similar to those considered in Kangaya Gurukkal v. Kalimuthu Annavi, where it was held they constituted a promise to pay. Cf., also Sivakami Ammal v. Gopala Savundram Ayyan, also a F. B. ruling. The case in Hakeem Patte Muhammad v. Sheik Davood was an instance of an anamolous mortgage, under Sect. 98 Transfer of Property Act, and the Court held that the words of the document must prevail and that Sect. 60, Transfer of Property Act, had no application. In Rangayya Pillai v. Narasimha Aiyangar, there was no definite date fixed for repayment as here and it is held that the word as to repayment was entirely for the benefit of the mortgagor, who could pay when he liked. In Luchmeshar Singh v. Dookh Mochan Jha, the stipulation was in a different form and the learned judges held that the words used only preserved a right of redemption to the mortgagor. If this case conflicts with the Madras Full Bench decisions, we are of course bound by the latter. As my learned brother has pointed out, a document of this sort must be construed with reference to its own terms and circumstances. I think here there is a distinct promise in Ex. A to pay by the 7th July, 1917, and that the second clause is not inconsistent with this view, as held by the Full Bench in Sivakami Ammal v. Gopala Savundram Ayyan.
I therefore agree that the second appeal fails and must be dismissed with costs.
C.KAppeal dismissed.