TMI Blog1933 (9) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of the said maintenance allowance. She further provided that after her death only that portion of the property aforesaid which would devolve upon her son Marghub Hasan, who was the husband of Mt. Faruqunnissa, should remain charged and hypothecated. She clearly stated that the said agreement would remain operative in favour of the descendants of Mt. Faruqunnissa from generation to generation. 3. Mt. Faruqunnissa died in 1920 and Mt. Wazirunnissa herself died in 1922. Marghub Hasan died in the same year but shortly after Wazirunnissa. It is an admitted fact that according to the devolutions of shares under the Mohamedan Law if the estate of Mt. Wazirunnissa be regarded as consisting of 2240 sihams then the result of the -devolutions after the successive deaths was that a junior widow of Marghub Hasan named Ashrafulnissa got 60 sihams, the three sons of Mt. Faruqunnissa got 105 sihams each and their step-brother, the son of Mt. Ashrafulnissa also got 105 sihams. 4. Mt. Ashrafulnissa brought a suit for the recovery of her dower debt against the assects of her deceased husband, Marghub Hasan and obtained a decree on 5th December 1923. She sold this decree on 15th December ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge should be deducted from the profits of the property said to be sold by auction and that value be fixed with reference to the remaining amount only. The sale proclamation is not on the record but the document containing the list of auction bids indicates that the property put up for sale consisted of 3881/2 sihams out of 480 sihams comprised in 2240 sihams in 8 biswas 2 biswansis 5 kachwansis and 3 tanwanis is of land situate in mauza Ruppur Bahadurpur mahal Surkh (Red), and it was clearly notified that ₹ 20 per month as maintenance allowance granted by Wazirunnissa in favour of Faruqunnissa was to be regarded as an encumbrance which the decree-holder alleged to be fictitious. But as the price offered was in excess of the amount due by ₹ 500, the entire property after deducting 1/19th share was to be sold. The sale certificate which was issued to Mt. Kalawati after the confirmation of the sale is dated 8th March 1927 and contains-the same recitals. The report of the office after the auction sale also indicates that the property was sold, but the value announced was assessed after deducting the amount of the charge. This office report, being a subsequent document, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... times even indistinguishable, but there is no doubt that the legislature contemplates a clear distinction between the two. There may be a variety of reasons for a transaction being only a charge and not a mortgage. But it seems quite clear that the mere fact that there is a personal covenant to pay the amount would not necessarily result in the transaction not being a charge. It is equally clear that when the intention of the parties is to ceate a liability in perpetuity not capable of being redeemed absolutely at any time the transaction cannot possibly be a mortgage. 11. In our opinion the case is to a great extent covered by the authority of their Lordships of the Privy Council in the case of Rajah of Ramnad v. Sundara Pandiyasami Tevar AIR 1918 PC 156. In that case certain parties had come to a compromise in 1861, the material portion of which was to the affect that as consideration for the plaintiff having lost certain rights, the defendant and her heirs who are in enjoyment of the zamindari should pay to the plaintiff and his descendants, from generation to generation, an allowance at the rate of ₹ 700 a month from 1st November 1860. 12. One of the points which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this way, there is no doubt that she was attempting to defeat the provisions of the Mohamedan Law under which the power of testamentary disposition of a Mohamedan is very much restricted and when exercised in favour of heirs the consent of the other heirs is a necessary requisite. 15. This condition therefore tended to-defeat the provision of the Mohamedan Law and would be void under Section 23, Contract Act. We are therefore of opinion that although it was open to Mt. Wazirunnissa to create a charge on the property named in the agreement) she had no authority to create a charge on the unknown shares of one of her heirs, Marghub Hasan. The charge attempted to be created on the share of Marghub Hasan is therefore invalid and illegal and cannot be enforced. Even if the charge were valid, it is quite obvious that to the extent of the shares of the three sons of Faruqunnissa there would be a pro tanto merger. The same persons could not both be charge-holders and own the properties charged. They could not possibly enforce the charge against themselves; and m the absence of any intermediary encumbrancer, contemplated by Section 101, T.P. Act, they could not keep alive the charge ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r but it is contended that in view of the special provisions contained in Section 91(f), T.P. Act, an attaching creditor is on a stronger footing and he must be assumed to be in the same position as a puisne mortgagee who has not been impleaded in a suit brought by a prior mortgagee. 18. Ordinarily an attaching creditor does not acquire any interest in the property attached. He merely obtains a right to prevent the judgment-debtor from transferring the property in avoidance of the attachment. But no doubt Section 91(f) allowed attaching creditors the right of redemption and in a regular suit for sale on the basis of a mortgage it can very well be said that an attaching creditor was a necessary party under Order 34, Rule 1, and should have been impleaded. 19. But it must be borne in mind that a charge is not exactly identical with a mortgage and although a similar remedy is available a suit for the enforcement of a charge is not necessarily the same as a suit for sale on the basis of a mortgage-deed. One obvious distinction is that a mortgage is for a fixed term whereas a charge may be in perpetuity. In the case of a mortgage it can be ultimately redeemed whereas a charge in p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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