Kishan Lal vs Ganga Ram and Another

Young, J.—Kishan Lal, appellant, was auction-purchaser in 1885 (4th March) of a shop belonging to one Baldeo alias Bal Kishan, of which he got possession on the 9th July 1885. The said Baldeo had previously, viz. on the 18th October 1875, hypothecated the same shop to one Nathu Ram (whose representatives are the present respondents). He had also mortgaged it to one Dalchand for a large sum in 1879.

On 27th January 1883, Nathu having sued Baldeo (alias Bal Kishan) and Dalchand on the above bond of the 18th October 1875) obtained a decree against them and proceeded to attach the shop in execution of his decree. Kishan Lal objected that he had bought it at auction in execution of Hazari Lal''s simple money decree against Baldeo Das.

The lower appellate Court finds that Nathu Ram is not chargeable with fraud, deceit or laches, and that he was not bound to disclose his prior lieu to the appellant. On the other hand, the Court finds as a fact that appellant was an innocent purchaser for value without notice. The Court following the ruling in Shambhu Nath and Others Vs. Durga Prasad, dismissed plaintiff''s, appellant''s, appeal.

Against that decision the present appeal is brought.

The sale at the auction in 1885 was the sale of the debtor''s interest at that time and no more. That interest in 1885 was subject to the respondent''s lieu under the bond of the 18th October 1875, which lieu had been affirmed by the decree of January 1883.

It is, however, strongly urged upon us here that the bond of the 18th October 1875, did not amount to a simple mortgage, as defined in the Transfer of Property Act (IV of 1882), s. 58, and merely created a charge of the character described in s. 100 of that Act, and that such charge would not be enforceable as against a subsequent innocent purchaser for value without notice, although a mortgagee under a simple mortgage would be so preferred. It was contended that the law on this matter in force prior to the passing of Act IV of 1882, was practically the same as that which was formulated by that Act, and the learned counsel for the appellant endeavoured to establish the proposition that documents wherein the power of sale was not expressly given did not amount to mortgages, but only created a charge or lieu on the property in question. Mr. Strackey (for appellant) admitted that the word "rehan" occurring in a document to denote the nature of the incumbrance created, would suffice to show it was a mortgage, and would give the prior incumbrancer a preferential title to the subsequent innocent purchaser for value without notice.

But he contended that no such inference would arise where the document used words such as are here employed, viz., "arh" and "mustaghraq" and, as here, conveyed no express power of sale in case of default.

The whole subject was considered by us at much length, and the very numerous authorities quoted by the learned counsel for the appellant and the able arguments based by him thereon were carefully weighed.

The primitive meanings of words sometimes assist in the better comprehension of their secondary significations. I do not know that we are much aided in the present instance by the original derivations of the terms used in the documents before us. "Arh" denotes a "support" or "propping up;" "mustaghraq" is literally "submerged."

There is a clause against alienation during the continuance of the debt, but the document contains no express provision conferring the power of sale in default. I give the document itself as follows:--(His Lordship here read the bond of the 15th October 1875 above set forth, and continued:--)

The learned counsel Mr. Strackey for appellant contended that the bond of 1875 in favour of Nathu Ram did not transfer any interest in the property to the obligee and merely amounted to a charge thereon, and that on this ground the appellant, the innocent purchaser without notice, had a preferential claim to the respondent whose incumbrance amounted (as he alleged) to a mere lieu on the property. He pointed out that the remedy by sale of the property would be alike whether the incumbrance were by way of mortgager or by mere charge on the property.

He admitted that where the transaction amounted to a mortgage, and certainly if the word "rehan" was used to denote the nature of the incumbrance, there the incumbrancer had a preferential title to the innocent purchaser without notice; but he contended that the words employed in the document of 1875, "arh" and "mustaghraq," did not amount to a mortgage, and merely constituted a lieu or charge on the property which would not give respondent any preferential title to the appellant.

The principles laid down in the Transfer of Property Act (IV of 1882) were examined, and the term "simple mortgage," as defined in s. 58 of that Act, was considered and contrasted with "charge" as defined in s. 100 of the Act.

S. 58 lays down that a simple mortgage is "where without giving possession of the mortgaged property the borrower agrees expressly or impliedly that in the event of his failing to pay according to his contract the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied so far as may be necessary in payment of the mortgage money."

A "charge" is defined as follows in s. 100:--

Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another and the transaction does not amount to a mortgage the latter person is said to have a charge on the property.

The words "hypothecation" and "lieu" which were also freely used during the argument, do not appear, to be terms used in the Transfer of Property Act. A "charge" in strictness not only empowers its possessor in many cases to hold the property charged if in his possession, but also gives him the right to come into Court and sue actively for the satisfaction of his claim. A "lieu" strictly is neither a jus in re nor a jus ad rem, but is simply a right to possess and retain property until some charge attaching to it is paid or discharged (Story, Equity Jurisprudence, s. 506; V.S. Doraiswami Aiyar, Commentary on Act IV of 1882, p. 140). Rangasami v. Muttu Kumarappa I.L.R., 10 Mad., 509 was quoted, where the question was whether a certain bond amounted to a mortgage or not. The document being in a language prevalent in Madras, it is of course only possible to judge of its tenor from the English translation given of it in the judgment, and this is the less satisfactory in regard to the question of its applicability to the case before us, as the point in issue before us is as to the scope and significance of the words "arh" and "mustaghraq," employed in the deed of 1875, it being admitted that if the word "rehan" had been employed instead of "arh" and "mustaghraq," then no doubt could have remained as to the document amounting to a mortgage. In the Madras case just cited, the bond, which was of the 1st June 1862, is called a hypothecation bond and runs:-- "Having pledged to you this day, &c., &c., the brick built house, &c., &c." No power of sale was expressly given.

Mr. Justice Kernan held it was not a mortgage, adding however the significant remark--"The term ''mortgage'' has not, I am informed, any corresponding vernacular term denoting a transfer of land as security." His Lordship expressed his dissent from the Allahabad High Court''s ruling in Shib Lal v. Ganga Prasad I.L.R., 6 All., 551, but concurred with the Bombay High Court in Lallubhai v. Naran I.L.R., 6 Bom., 719. His Lordship Muttuswami Ayyar, J., said that the substantial question for consideration was whether the hypothecation bond in suit operated "to create only a charge on immoveable property or a simple mortgage within the meaning of the Transfer of Property Act," and he concluded that it created a charge only. With much respect to the learned Judges I venture to think that the question before the Court was hardly whether the bond of 1862 operated to create a charge or a simple mortgage, as defined by the provisions of an Act which came into force twenty years subsequently; but rather (as indicated by the same Judge himself) what was the intention of the parties at the date of the execution of the bond, and what was the proper construction of the document, having regard to the terms employed, and to the sense in which such terms were ordinarily used'' at such date; and this seems to me precisely the question for determination in the case now before us.

Another Madras ruling, to a similar effect to that in I.L.R., 10 Mad. just quoted, was also cited, Aliba v. Nanu I.L.R., 9 Mad., 218.

The learned counsel for the appellant reiterated his argument that there must be a distinct grant of the power of sale in order to bind an innocent purchaser for value without notice, and that a charge, while creating a trust against the obligor, went no further and could not be enforced against an innocent purchaser for value without notice, and in support of these propositions quoted Story on Equity Jurisprudence, ss. 1217-1231, and Dr. Rashbehary Ghose''s Law of Mortgage in India, p. 322. Khemji Bhagvandas Gujar v. Rama I.L.R., 10 Bom., 519 was next cited. There the Court declined to recognise certain deeds as being mortgage deeds, although they were so called in the deeds themselves, and the Court held that the creditor had a mere charge upon the property and that no interest "in the land was transferred to him such as is transferred by a power of sale in an ordinary mortgage." (p. 527).

The next authority which came under our consideration was the Full Bench ruling in Gopal Pandey v. Parsotam Das I.L.R., 5 All., 121.

There the question was whether the hypothecation of his right of occupancy by an occupancy tenant was or was not a "transfer" of such right within the meaning of s. 9 of the N.W.P. Rent Act of 1873, and their Lordships held (my brother Mahmood dissenting) that such hypothecation was not a "transfer." In that case Mahmood, J., said (and with that opinion I entirely concur):-- "But it may be safely taken that the word ''transfer'' is used in law in the most generic signification comprehending all the species of contract which pass real rights in property from one person to another" (p. 137).

Another passage (p. 138) appears to me worthy of quoting Mahmood, J., goes on to say:-- "The most essential of the elements which constitute the simple mortgage is the right to cause the property to be sold, a right without which the transaction, whatever-else it may be certainly cannot be called hypothecation, pledge or simple mortgage."

This appears to me to point to the right path to be taken in answering the question before us. What we have to see is, not what is the necessary and logical effect of the definitions of simple mortgage and charge in the Transfer of Property Act, but was what the intention of the parties in 1875 when they wrote the deed before us.

And here I must remark that we have no right to assume that, prior to Act IV of 1882, the notions of "charge," "lieu," "incumbrance," "hypothecation," familiar to English lawyers were equally familiar to the native mind, much less that these terms bore precisely the same connotation to native as to English lawyers. Indeed if we examine s. 100 we shall even yet fail to find a definition of "charge" as contradistinguished from "lieu," the former denoting a result of the act of parties, while the latter is restricted to a liability arising by statute. Nor could terms be easily found in Urdu to express such distinctions except by a periphrasis. I do not say that the idea of a charge is wholly unknown to native lawyers. No doubt the claim of a Hindu widow to maintenance would be in the nature of a charge or lieu on the estate (so would be malik�na and other haqq). It might be held that such a charge as that for maintenance by a Hindu widow would not be preferred to the title of an innocent purchaser for value without notice. But such a charge would certainly not be described by the terms "arh" and "istighraq."

Those words are to the best of my belief terms ordinarily employed by native lawyers to denote a mortgage without possession. I consider that, with this exception, they have as much force as the "word "rehan," and imply the power of sale in default equally with that word. This to my mind is a complete answer to the question before us. If the terms employed impliedly give the power of sale, and I hold they do, then this document is a simple mortgage even under the definition of s. 58 of Act IV of 1882, and the incumbrancer holding under it has undeniably a preferential title to the innocent purchaser for value without notice.

Mahipal Kuar Vs. Sheoratan Kuar and Others, was cited. I refer to it chiefly on the ground that it was therein held that "a simple mortgage is a transfer, being a transfer of the light of sale." In that case it was held that a simple mortgage was effected by the instrument, which was of similar character to the one now before us, save that in the case I am quoting (Sheoratan Kuar v. Mahipal Kuar) the word "rehan," i.e., "mortgage," was used. The case of Shib Lal v. Ganga Prasad I.L.R., 6 All., 551 was much discussed. The Full Bench of this Court in that case held that a similar instrument to the one now before us operated to create a simple mortgage within the meaning of the Transfer of Property Act. In that case my brother Mahmood in interpreting the meaning of the terms used in the document, the basis of the suit, said as follows (v. p. 556):--"There can be no doubt that the deed of the 20th December 1869, to which this reference relates, is a deed of hypothecation or simple mortgage, the covenant against alienation taken with the word ''adh'' which occurs in the deed placing the matter beyond question." In Motiram vs. Vitai and Another where certain landed property was mortgaged as security for a debt, but the deed contained no express power of sale, it was held by the Full Bench that the document was a mortgage and not a deed of charge merely.

In Varden Seth Sam vs. Luckpathy Royjee Lallah then Lordships of the Privy Council upholding an equitable lieu by deposit of title deeds as against one claiming to be a bona fide purchaser for value without notice, remarked:-- "To give effect to the legal estate as against a prior equitable title, would be an adoption of the English law, and to adopt it, and yet reject its qualifications and restrictions, would be scarcely consistent with justice."

In Shambhu Nath and Others Vs. Durga Prasad, the Court held that "the principle on which Courts of Equity in England refuse to interfere against bona fide purchasers for a valuable consideration without notice when clothed with the legal title, has no applicability in our Courts."

The case so far differs from the present one, as in the former there was no question that the document, the basis of the suit, created a valid mortgage.

A consideration of the foregoing cases and of the facts of the present appeal leads clearly to the following conclusions.

The definitions of Act IV of 1882, however useful in illustrating principles, can clearly not have retrospective effect and (as expressed by Muttuswami Ayyar, J., in I.L.R., 10 Mad., 515) "prior transactions must be interpreted according to the intentions of the parties at the time they were concluded."

Granting then that an innocent purchaser for value without notice may well be allowed preference where the nature of the incumbrance set up against him is merely that of a "charge" on the property not amounting to a mortgage, and even further conceding that a mere covenant against alienation without more will not suffice to constitute a mortgage, we have still in this case to look at the terms of the document of 1875, and to decide what was the intention of the parties at the time they executed it.

Looking at the document as a whole and considering the meanings, both primitive and secondary, of the terms employed, viz., "arh" and "mustaghraq" I have no doubt whatever that it was intended to effect a mortgage without possession of the property named therein, and I think it did effect such mortgage.

I think the power of sale is impliedly given by reason of the force of the words arh and mustaghraq themselves, and I think that to rule that these words merely constituted a charge on the property as a charge is understood by English lawyers is to import a meaning into these Hindustani words which they were never intended to bear and which they do not bear.

For these reasons I would confirm the judgment below, and dismiss this appeal with costs.

Mahmood, J.

This case has been very ably argued by Mr. Strackey on behalf of the appellant, and in dealing with his contention I wish to say at the outset that I entirely agree with my brother, Young, in thinking that the fate of this appeal depends upon the interpretation of the effect of the hypothecation deed in favour of Nathu Ram dated the 18th October 1875, on which he obtained the decree of the 27th January 1883, against the obligor Balkishan alias Baldeo. That decree directed specific enforcement of the hypothecation by sale of the hypothecated property, and in execution thereof the property having been attached, the plaintiff-appellant''s objections founded on his auction purchase of the 4th March 1885, were disallowed by the Court executing the decree on the 27th September 1885. It was to set aside that order and to obtain release of the property from attachment that this suit was instituted on the 30th October 1886, against the decree-holder Nathu Ram, who is now represented by the respondents.

The lower Courts have concurred in holding, on the one hand, that Nathu Ram''s hypothecation deed of the 18th October 1875, was a genuine and bona fide transaction, as also the decree which he obtained on that deed on the 27th January 1883, and on the other hand, that the plaintiff''s auction purchase of the 4th March 1835 was made by him bona fide for valuable consideration and without notice of Nathu Ram''s hypothecation deed of the 18th October 1875 and decree of the 27th January 1883.

These findings of fact cannot be questioned in second appeal, and they furnish the basis of Mr. Strackey''s argument on behalf of the appellant. The learned counsel contends that the hypothecation bond of the 18th October 1875, did not amount to "a simple mortgage," within the meaning of cl. (b) of s. 58 of the Transfer of Property Act (IV of 1882); that therefore the decree of the 27th January 1883, cannot be regarded a decree enforcing sale in pursuance of a mortgage; that the deed only created a "charge" such as that contemplated by s. 100 of that Act; that it therefore did not amount to the transfer of an interest in immoveable property, but only to such an obligation annexed to ownership of immoveable property as would fall under the purview of the second paragraph of s. 40 of the Act, and under the last part of that section could not follow the property in the hands of a bona fide transferee for value who took without notice of the charge, such as the plaintiff-appellant in this case.

This contention is supported by citation of many rulings which have been noticed by my brother, Young, in his judgment; but I do not think it necessary for me to consider all of them in detail, as I agree with my learned brother in thinking that the intention of the parties as expressed in the deed of the 18th October 1875, amounted to what is known in this part of the country as hypothecation or simple mortgage of which a clear definition is given in cl. (b) of s. 58 of the Transfer of Property Act (IV of 1882). That definition is only a reproduction of older law and is therefore applicable to the deed now in question though it was executed in 1875. Viewing the deed in this light it is true that it does not contain any express words giving the obligee the power of bringing the property to sale as the means of securing payment of the money advanced, but I think there is sufficient language in the deed to show that such power is implied. In the first place the transaction is described as "arh" "mustaghraq," which means a hypothecation or simple mortgage, and in the next place, the deed contains a covenant against alienation till payment of the loan, and then goes on to say, "if the hypothecated property (shai mustaghriqa) is destroyed by some unforeseen calamity or proves insufficient for the bond debt," then the creditor can recover it from the other property of the executant. This, I think, clearly implies power of bringing the property to sale, because that is the creditor''s remedy for recovery of money advanced under a transaction of "arh" in this part of the country, and in this deed the meaning is further made clear by the use of the word mustaghraq, which implies hypothecation or simple mortgage.

But against this interpretation Mr. Strackey argues that neither the word "arh" nor the word "mustaghraq" is the specific term for mortgage (for which the word is "rehan"); that they only mean security by hypothecation, which in the absence of a clear indication of a power of sale amounts only to a charge such as s. 100 of the Transfer of Property Act contemplates.

In order to deal with this contention it will be convenient to consider how the matter is dealt with in the Transfer of Property Act, and I cannot do better than quote a passage from the judgment of Mr. Justice Muttuswami Ayyar in Aliba v. Nanu I.L.R., 9 Mad. 218, at p. 221 where that learned Judge says:-- "S. 58 defines a mortgage to be the transfer of an interest in immoveable property for the purpose of securing the payment of money, but cl. (b) defines a simple mortgage to be one in which there is no delivery of possession of the mortgaged property, but in which the mortgagor binds himself to pay the debt personally, and agrees expressly, or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of the sale to be applied, so far as may be necessary, in payment of the mortgage money. In s. 100, a charge is defined to arise where immoveable property of one person is, by the act of parties or operation of law, made security for the payment of money to another, and the transaction does not amount to a mortgage. The distinction then between a simple mortgage and a charge consists in this, viz., where a power of sale its conferred upon the mortgagee expressly or impliedly by the instrument of mortgage, the transaction is a mortgage; otherwise it only creates a charge."

I concur in this statement of the effect of s. 58, cl. (b), and s. 100 of the Transfer of Property Act, and I also agree in the distinction pointed out between a simple mortgage and charge, and in order to make the distinction clearer I may here adopt the language of Dr. Rashbehary Ghose in his note on s. 100 of the Transfer of Property Act Tagore Law Lectures, 1875, 6 ed., 2, p. 499, where the learned author says:-- "A charge must be distinguished from a mortgage as defined in the Act, more specially from a simple mortgage. In every mortgage there must be a transfer of an interest in specific immoveable property, while in the case of a mere charge no interest is transferred, nor is it necessary that the property to which it relates should be specific. A charge differs from a mortgage not only in form, but also in substance. A plea of purchase for value without notice, for instance, although it may be perfectly good against a charge, will be wholly unavailing against a mortgage."

Whilst such is the distinction between a charge and a simple mortgage, Mr. Strackey in support of his contention relies upon a, passage in the judgment of Mr. Justice Muttuswami Ayyar in Aliba v. Nanu I.L.R., 9 Mad. 218, at p. 222, where that learned Judge observed:--

Prior to Act IV of 1882 the obligor had only the rights of an ordinary debtor under a hypothecation deed. On the one hand, he had no right of redemption, whilst on the other the obligee had no power of sale as inherent in the contract. If the Courts ordered a sale, they did so as it was the only mode in which a charge could be enforced. There is no doubt that Act IV of 1882 affects the Act of Limitation as to mortgages executed subsequently to July 1882, but, as already remarked, it does so by creating new rights and liabilities in the obligor and obligee with reference to those mortgages. In this view it seems to me that Act IV of 1882 could have no retrospective operation, and I hold therefore that the claim for the sale of the hypothecated property was one to enforce a charge, that it falls under art. 132, and that the hypothecation on which it is based does not possess the properties with which mortgages executed subsequent to the 4th July 1882, are invested by Act IV or 1882.

But there are even stronger observations than these in favour of Mr. Strackey''s contention, made by the same learned Judge in the Full Bench case of Rangasami v. Muttu Kumarappa I.L.R., 10 Mad. 509, at p. 515, where in interpreting a deed in which the words, "hypothecation" and "pledge" were used as representing the transaction, but no power of sale was expressly given to the obligee, the learned Judge said:--

The transaction is, I think, clearly not a simple mortgage as defined in s. 58 of that Act. There is neither the transfer of property mentioned in that section, nor a special agreement whereby the creditor acquires a power to sell the hypothecated property on default of payment according to the contract. On the other hand, the transaction in suit appears to be of the kind described in s. 100, which defines how a charge is created. It was argued that the Courts used to sell the hypothecated property at the instance of the creditor, and that a power to sell on default might be taken to be inherent in every contract of hypothecation made prior to 1882; but it must be remembered that the power contemplated by the Transfer of Property Act, s. 58, cl. (b), is a power to sell otherwise than through the intervention of a Court of justice, and that if the Court directs a sale in the case of a hypothecation bond, it is for the reason that it is the only mode in which the amount charged on immoveable property can be realized." And later on in the same judgment (at page 516) the learned Judge went the length of saying:-- "It seems to me that the Transfer of Property Act does not invest all prior hypothecations with the rights and liabilities arising from simple mortgages, whether or not those transactions satisfy the requirements of the definitions it contains of simple mortgages." Again Mr. Strackey relies upon a ruling of the Bombay High Court in Khemji Bhagvandas Gujar v. Rama I.L.R., 10 Bom., 519 where Birdwood and Jardine, JJ., said:--

And exhibit No. 3, with which we are more immediately concerned, simply recites that the land stands security for the money under it. The property is also spoken of as mortgaged; but the word must be construed as meaning only that the land has been made security for the payment of the money, so that the creditor has a charge upon the property within the sense of s. 100 of the Transfer of Property Act (IV of 1882). He has the right to have his charge realized by sale under a decree, but he is not a mortgagee, as no power is given him expressly or by implication to sell the property out of Court. Until he obtains a decree against the land, no interest in it is transferred to him such as is transferred by a power of sale in an ordinary mortgage.

Now there can be no doubt that if these rulings of the Madras and Bombay High Courts are to be accepted as governing the decision of this case, the deed of the 18th October 1875 must be regarded as creating nothing more than a charge which could not prevail against a bona fide transferee for value without notice, such as the plaintiff-appellant in this case. But I cannot accept those rulings as applicable in this case, partly because they seem to be affected by considerations relating to the nature and incidents of hypothecation peculiar to those Presidencies, and partly because, I respectfully think, they proceed upon a misapprehension of the nature of the power of sale as contemplated by cl. (b) of s. 58 of the Transfer of Property Act. So far as the Madras cases are concerned, the passages which I have quoted from the judgment of Mr. Justice Muttuswami Ayyar would go to show that in that Presidency no such thing as hypothecation carrying with it as a necessary incident the power of bringing the property to, sale ever existed before the Transfer of Property Act, and that therefore cl. (b) of s. 58 of that enactment was the introduction of new law. The same is possibly the case in Bombay, because there, as the passage which I have quoted from the judgment of Birdwood and Jardine, JJ., would show, even the use of the word mortgage coupled with the expression security would not amount to a simple mortgage within the meaning of cl. (b) of s. 58 of the Transfer of Property Act. Such is not the case in this part of the country, for here words of hypothecation and simple mortgage have always been understood to import the right of the mortgagee to bring the property to sale for satisfaction of his claim, and no express words conferring such power are insisted upon as necessary to create such power. Upon this point the ruling of this Court in Martin v. Pursram N.W.P.H.C. Rep. (1867), 124, which was followed by a Full Bench of the Calcutta High Court in Raj Coomar Ram Gopal Narain Singh v. Ram Dutt Chowdhry 13 W.R., 82 F.B. and other cases which I shall presently refer to, are clear authorities.

The other reason why I respectfully decline to adopt the Madras and Bombay rulings above-mentioned is that in the passages which have been relied upon by Mr. Strackey, and which I have quoted, the learned Judges seem to have held that the power of sale contemplated in cl. (b) of s. 58 of the Transfers of Property Act must be a power in the mortgagee to bring the property to sale independently of the Court. Mr. Justice Muttuswami Ayyar in Rangaswami v. Muttu Kumarappa I.L.R., 10 Mad., 509 in answering the contention that the right of sale was an incident inherent in every hypothecation, said:-- "But it must be remembered that the power contemplated by Transfer of Property Act, s. 58, cl. (b), is a power to sell, otherwise than through the intervention of a Court of Justice." Similarly Birdwood and Jardine, JJ., in dealing with a similar contention in Khemji Bhagvandas Gujar v. Rama I.L.R., 10 Bom., 519, at p. 527, observed "He has the right to have his charge realized by sale under a decree, but he is not a mortgagee, as no power is given him, expressly or by implication, to sell the property out of Court." Again Birdwood, J., in the later case of Motiram vs. Vitai and Another pointed out (at p. 100) that this view was in accordance with the dissentient judgment of Petheram, C.J., in the Full Bench case of Mahipal Kuar Vs. Sheoratan Kuar and Others, , where that learned Chief Justice (at p. 266) said:--

A reference to s. 100 of the same Act shows that according to the law of this country, immoveable property may be made the subject of a security by a transaction which may not be a mortgage, i.e., by a transaction which does not transfer to the lender any interest in the land itself. The question then comes to this, Does the bond in question, either expressly or impliedly, give the lender himself any right to cause the property to be sold, or in other words, to sell it himself? as if it does not, it transfers no interest in the property and is not a mortgage but a charge.

With due respect to the learned Judges who have thus interpreted the power of sale as contemplated in cl. (b) of s. 58 of the Transfer of Property Act to mean a power to sell the property without the intervention of the Court, I am unable to accept their interpretation. The exact words in the clause are:-- "the mortgagee shall have a right to cause the mortgaged property to be sold," and s. 67 clearly shows that such power is to be exercised by obtaining from the Court "an order that the property be sold." The use of the phrase, "to cause," taken with the provisions of s. 67 as to order for sale, clearly shows that in a simple mortgage the mortgagee''s power of sale is not intended to be exercised independently of the Court. If any doubt could exist upon the point it is removed by the express provisions of s. 69, which, in dealing with the matter, lays down that a power of sale "without the intervention of the'' Court is valid in the following cases and in no others," and the cases enumerated in the section do not include simple mortgages, as defined in cl. (b) of s. 58. It is therefore clear that in order to constitute a simple mortgage an express or implied power of sale exercisable through the Court is all that is required, and that it is none the less a mortgage, if it conveys no power to the mortgagee to sell the property out of Court, a power which, as I have shown could not be valid in such mortgages. This view is in accord with the doubt expressed by Sargent, C.J., in Motiram vs. Vitai and Another at p. 97 as to the accuracy of the ruling in Khemji Bhagvandas Gujar v. Rama I.L.R., 10 Bom., 519 for he observed:-- "It is to be remarked that in Girwar Singh and on his Death, Srikishen Singh and Others Vs. Thakur Narain Singh and Others, the High Court of Calcutta treat the document in that case, which was a simple mortgage in the same form as exhibit 3, the subject of discussion in Khemji Bhagvandas v. Rama I.L.R., 10 Bom., 519, as a mortgage within the contemplation of the Transfer of Property Act, and it is certainly very difficult to suppose that the framers of that Act intended to exclude from their definition of mortgage a large class of instruments which were not only in every day use, but regarded and described by the natives of this country as mortgages, and treated as such by all the Courts of the mufassil."

I now proceed to consider some of the rulings of this Court in which the question as to what amounts to a simple mortgage has been discussed. In the case of Gopal Pandey v. Parsotam Das I.L.R., 5 All., 121 a Full Bench of this Court had to consider whether a hypothecation by an occupancy tenant of his occupancy tenure was a transfer within the meaning of s. 9 of the N.W.P. Rent Act. The majority of the Court in that case answered the question in the negative, whilst I answered it in the affirmative. In delivering my judgment in that case I went at considerable length into the question (at pp. 136--39) what constituted hypothecation or simple mortgage, and to those views I still adhere, and need not repeat them. Mr. Strackey, however, argues that my opinion in that case is no longer available to me as the majority of the Court decided the question in the negative. This at first sight seems to have force, but as a matter of fact, with the exception of Stuart, C.J., who delivered a separate judgment, the opinion of the majority of the Court does not abrogate the opinion which I expressed as to the nature and incidents of hypothecation or simple mortgage, for they only ruled that "transfer" in s. 9 of the Rent Act, meant only an out and out transfer. The ruling of the learned Judges may be quoted here, in their own words. They said:-- "What s. 9 aimed at was to prevent occupancy tenants from wholly divesting themselves of their rights of occupancy by out and out trans for to strangers to the exclusion of co-sharers interested by inheritance in such right." Beyond this the ruling has never been understood to govern questions of mortgages, and its effect has been strictly limited to the interpretation of s. 9 of the Rent Act by this Court itself.

This appears from the Full Bench ruling in Shib Lal v. Ganga Prasad I.L.R., 6 All., 551, where a deed such as the one in this case which employed the word ark with a covenant against alienation was accepted as amounting to a simple mortgage within the meaning of cl. (b), s. 58 of the Transfer of Property Act. Again, in Mahipal Kuar Vs. Sheoratan Kuar and Others, a deed worded similarly to that in this case was held by the majority of the Court to be a transfer by simple mortgage within the meaning of cl. (b), s. 58 of the Transfer of Property Act, although the deed did not expressly give power of sale to the mortgagee, and the words "rehan" (mortgage) and "mustaghraq" were taken to imply a power of sale, though of course not a power of sale without the intervention of the Court. In delivering my judgment in that case I said:-- "In some cases, such as those described in s. 69 of the Transfer of Property Act, the mortgagee may sell the property by private sale; in other cases (and this is the rule of simple mortgages in India) his only way of selling the property is to go to the Court to obtain an order for sale. I am of opinion that this distinction between the two forms of mortgage to which I have referred does not place them under different categories, for my conceptions of jurisprudence convince me that both must be classed under the genus of jura in re alien� or estates carted out of the full ownership of property, the object, namely, security of immoveable property for the performance of a pecuniary obligation, being in both cases identical." It seems to me that the question whether the mortgagee''s power of sale is to be exercised out of Court or through the intervention of the Court is a matter relating to what may be called the modus operandi as distinguished from the essence of the mortgage.

There was another point which Mr. Strackey urged in support of the appeal. He contended that even if the deed of the 18th October 1875 be taken to amount to a simple mortgage, the fact that the plaintiff is a bona fide purchaser for value without notice rendered his purchase of the 4th March 1885, free of the prior incumbrance. For this contention the learned counsel relied up on a ruling of the Bombay High Court in Girdhar Ranchoddas v. Hakamchand Revachand 8 Bom. H.C.R., 76 A.C. where such a rule seems to have been laid down with reference to the Gujrati form of Sankhat mortgage, which is apparently similar to a simple mortgage in this part of the country. That ruling, however, has been overruled by a Full Bench of the same Court in Sobhagchand Gulabchand v. Bhaichand I.L.R., 6 Bom., 198 and again by another Full Bench of the same Court in Naran Purshotam v. Daolatram Virchand ILR 6 Bom., 538. There is thus no authority for the proposition that a simple mortgage such as the one in this case is unavailable as against a bona fide transferee for value without notice.

There is yet another reason why this appeal cannot prevail. The plaintiff in this case is the purchaser of the rights and interests of Balkishan such as they were at the auction-sale of the 4th March 1885. The purchase being in execution of a simple money-decree, the plaintiff could acquire no higher title than the judgment-debtor possessed. This being so, it must be remembered that in respect of this very property Nathu Ram, whom the defendants-respondents represent, had already obtained a decree on the 27th January 1883, against Balkishan. That decree, as has already been observed, was passed on the deed of the 18th October 1875, and is so framed as to order sale of the property in enforcement of a simple mortgage. It is in all respect a mortgage decree. Now this being so, the title of Balkishan was necessarily subject to the decree when it was sold to the plaintiff on the 4th March 1885, and he is equally bound by its terms. In Unnopoorna Dassce v. Nufur Poddar 21 W.R., 148 the Calcutta High Court held that the purchaser of property at an execution sale is the representative in interest of the judgment-debtor whose right, title and interest he has purchased. In Rajah Enayet Hossein, v. Girdhari Lal 12 Moo. I.A. 366 the Lords of the Privy Council observed:--

There is another point which appears to have been taken by the learned Judges of the High Court, and which seems to have been founded on the supposition that there was some distinction to be made in favour of a person claiming under an execution sale as contradistinguished from the representatives of any person claiming under an ordinary assignment or conveyance. In the opinion of their Lordships, there is no foundation in principle or authority for any such distinction, but the person who comes here as the plaintiff, and who is the respondent in this case, must stand in the same position as the son, Bahadur, whose rights he bought would have stood in if he had been the claimant.

It is therefore clear that the plaintiff-appellant is as much bound by the terms of the decree of the 27th January 1883, in respect of the property which he has purchased as Balkishan himself would have been, and cannot therefore prevent the property from being sold under that decree except by paying up the decretal money. For these reasons I agree with my brother, Young, in dismissing the appeal with costs.