Kamayya and Others vs Yerakota alias Rentakrishnayya and Others

We are of opinion that the document Exhibit A did not create a mortgage or charge over any property. It purports to be only a simple bond.

After promising to discharge the amount due under the bond and interest on the date fixed the executant proceeds to say ""If I do not so pay I shall

add to the amount of principal and interest profit at Rs. 0-8-0 per rupee and pay the aggregate. For this I and my heirs with all my property

moveable and Immovable as thanaka (security) shall be liable."" We do not think that this can be regarded as apt language to create a mortgage or

charge. In Norton v. Florence Land and Public Works Co. (1877) L.R. 7 Ch.D. 332, Sir George Jessel observed as follows : ""The mere fact that

the obligor binds not only himself but also his estate, property and effects, is not sufficient to constitute a charge. Every bond does in a sense bind

the property of the debtor. In legal course it binds his property generally as property is bound to pay a judgment debt."" The language of the

document in this case is not stronger than that in the above case where the company (the debtor) purported ""to bind themselves, their successors

and assigns and all their estate property and effects."" In Joyson v. Kelser (1899) 2 Ch 530 relied on by the respondent, where Kekewich J. held

that a valid charge was created, the language used was much stronger. ""I hereby charge all my real and personal estate whatsoever and

wheresoever and of what nature or kindsoever the same may be or consist."" The intention to create a charge was taken to be clearly expressed

and the real question that the learned judge considered was whether the description of the security was so vague that effect could not be given to

the intention of the parties. But the question here is whether there was an intention to create a charge. As pointed out by the Judicial Committee of

the Privy Council in Peacock v. Bajnath ILR (1891) C. 573. There can be no charge where there was no intention to create any. It may be as

observed by Dr. Rash Behari Ghose in his learned treatise on mortgages, that a valid charge could be created in this country at least before the

enactment of the Transfer of Property Act over all the property owned by a person, though the property may not be specifically described, bat the

Court will not lightly construe a document as evidencing such an intention in the absence of clear words to that effect. The inclusion of the

moveable property of the executant of the instrument is a material circumstance in ascertaining the intention, for it is unlikely that he meant to tie up

all his moveable assets and it is equally unlikely that he intended to create a floating charge over his moveables. The fact that the instrument

purports to be only a simple bond is also not without some value. The use of the word thanaka after the expression ''all my moveable and

Immovable property'' is not sufficient to justify the inference that a charge or mortgage was intended to be created, Ramsidh Pande v. Balgobind

ILR (1886) A. 158 has been referred to; but in that case the language of the instrument was stronger. There was a promise not to alienate the

debtor''s property and there were other circumstances which, in the opinion of the Court, disclosed an intention to create a charge. Bheri Dorayya

v. Maddhipathi Ramayya ILR (1881) M. 35, Ram Baksha v. Sook Deo Salig Ram and Debichurn (1867) 1 N.W.P. 155 and the Collector of

Itawa v. Beti Maharani ILR (1892) A. 162 on the other hand support the defendant''s construction of the document.

Venkatasami Reddi v. Rangatnma (1900) 11 M.L.J. 271 referred to by the Subordinate Judge is not in point as the instrument in that case was

one of gift and the question at issue was whether it was void for indefinite-ness. On the whole we are of opinion that the Subordinate Judge was

wrong in holding that Exhibit A is an instrument of mortgage: We set aside the order of remand and restore the Munsif''s decree with costs here

and in the Lower Appellate Court to be paid by the plaintiffs.