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Judgment
Sadasiva Aiyar, J.—The 20th defendant is the appellant in this second appeal. The suit is brought upon a panyam deed of 1883 to recover,
by sale of the property mentioned in the deed, the sum of Rs. 400 principal and the interest at 18 per cent. per annum from the date of the bond till
date of repayment. The Dower Appellate Court decided against the contentions of the defendants and gave the plaintiff a mortgage decree for sale
for the sum of Rs. 400 and interest thereon at 18 per cent. per annum till 5th January 1896 and for interest thereafter at 6 per cent. per annum.
In second appeal Mr. Chamier, the learned Counsel for the appellant, raised several contentions which might be shortly formulated thus: (1)
Exhibit A is not a simple mortgage document but only created a charge and hence the plaintiff is not entitled to take advantage of the provisions of
Section 3 of the new Limitation Act of 1908 and his claim had become barred long before the filing of this suit; (2) The lower Appellate Court was
wrong in its finding that the debt is binding upon the tarwad of the defendants 1 to 19 as, in arriving at this wrong decision, it has misconstrued
Exhibit B; (3) The lower Appellate Court''s decision that the plaintiff was not the benamidar of Kalliat tarwad is erroneous; (4) the plaint debt has
been extinguished and the Lower Appellate Court''s finding that it was not so extinguished is due to its misconstruction of Exhibit II; and (5) the
Lower Appellate Court ought not to have allowed any interest after the expiry of the one year''s period mentioned in Exhibit A for the repayment
of the debt.
The last point is not taken in the memorandum of second appeal and there is nothing in it.
As regards the first point, namely, the question of limitation, the document is a panyam deed and the word ''panyam'' when used in documents
executed in Malabar means a mortgage if the property governed by the panyam deed is Immovable property. Further the provision in Exhibit A
that "" the sum of Es. 400 with interest will be paid to the mortgagee within one year "" clearly implies a personal covenant by the mortgagors to pay
the amount and when there is such a personal covenant it has been held by a long course of decisions (of which I need only mention those in
Balasubramania Nadar v. Sivaguru Asari (1909) 21 M.L.J. 862. Ramabrahmam v. Venkatanarasu Pantulu (1912) 28 M.L.J. 131. Rangappa Vs.
Thammayappa (died) and Others, and Venkatarama Aiyar v. Suppa Nadan (1914) M.W.N. 501 the document of this character is a document of
simple mortgage under the Transfer of Property Act.
[The rest of His Lordship''s judgment except the last para, is not material to this report],
As regards the memorandum of objections, the Lower Appellate Court has given no legal reasons for allowing only 6 per cent, interest on the
principal amount of the mortgage after 1896. The plaintiff is entitled to get interest at the original rate of 18 per cent. till the date fixed in the decree
for repayment of the mortgage amount, interest and costs according to the usual provisions in a mortgage decree for sale. The memorandum of
objections must therefore be allowed with costs. Time extended till the expiry of four months from this date for redemption.
Spencer, J.
I entirely agree and I have only to add that as it has been argued that the Subordinate Judge was not justified in his findings of fact on the
questions of (1) tarwad necessity, (2) the extinguishments of the plaint debt and (3) the benami nature of Exhibit A, it is to be regretted that when
reversing the District Munsif''s judgment on these points he did not entirely meet the reasoning given in the first court''s judgment for the conclusions
therein arrived at. At the same time the Subordinate Judge does give reasons of his own for the conclusions at which he arrives and his findings of
fact cannot be upset in Second Appeal so long as there is some evidence to support them.
On the point of law it has been argued that there must be some transfer of interest in property to constitute a simple mortgage and that the suit
document creates only a charge over the property for which the limitation period is 12 years. I am of opinion that it is too late now to ask us to
hark back to the decision in Rangasami v. Muthukumarappa ILR (1887) M. 509. The decision in Balasubramania Nadar v. Sivaguru Asari (1909)
21 M.L.J. 562. Ramabrahmam v. Venkatanarasu Pantulu (1912) 28 M.L.J. 131 and Venkatarama Aiyar v. Suppa Nadan (1914) M.W.N. 501
decided that a formal transfer of interest was an element of mortgage which need notbe expressed in the document of mortgage. In the last two
decisions, the case in Rangasami v. Muthu Kumarappa ILR (1887) M. 509 was considered and distinguished. Moreover Rangasami v. Muthu
Kumarappa ILR (1887) M. 509 dealt with a mortgage prior to the Transfer of Property Act. Here the Panyam deed in suit is one of 1883
subsequent to the Transfer of Property Act. I am not prepared to say that this document which describes itself as a panyam or mortgage created
only a charge upon the property. The case in Ramachariar v. Doraisami Pillai (1913) 29 I.C. 605 was one in which it was merely stated that the
property in question was made a security for the debt. There are no such words in the document now in suit. I therefore consider that the second
appeal must fail on all points and the memo. of objections must be allowed.