JUDGMENT

Pramada Charan Banerji, J. - The facts of this case are these: Two brothers, Jhamman and Dhani Ram, made a usufructuary mortgage of two-thirds of certain zamindari property is favour of Har Prasad on the 28th of January, 1880, for a sum of Rs. 332. Under that mortgage the mortgagee obtained possession and got mutation of names in his favour. Subsequently Jhamman executed a document in favour of the same mortgagee, Har Prasad, by which he borrowed Rs. 50, with interest at the rate of 2 per cent. per mensem, and the contention is that this document created a usufructuary mortgage and placed on the property a further burden for the payment of the money secured by it. That is the question we have to consider in the present case. Jhamman sold a part of his share in the property to the defendant Ram Chandar. The heirs of Dhani Ram also sold part of Dhani Ram's share to the same defendant and to defendants nos. 4 and 5. The defendants last mentioned have not appeared and they have not contested the claim. Ram Chandar made a deposit of Rs. 332 u/s 83 of the Transfer of Property Act. This sum the mortgagee Har Prasad refused to withdraw, alleging that the amount payable under the mortgage of the 28th of June, 1881, should also have been deposited, and without payment of that sum the property could not be redeemed and could not be taken out of his possession. Ram Chandar, however, did not make any further deposit, but he applied to the Revenue Court for mutation of names on the allegation that the mortgage of 1880 had been redeemed and that he had become the owner of the property. Mutation of names was granted in his favour and apparently Har Prasad, the mortgagee, was deprived of his possession as mortgagee of the proprietary interests. He thereupon instituted the present suit, claiming possession of the two-thirds share mortgaged to him on the 28th of January, 1880, and some mesne profits. The court of first instance dismissed his claim; the lower appellate court decreed it; but on appeal to this Court the learned Judge who heard the appeal restored the decree of the court of first instance. Hence this appeal under the Letters Patent. It has been conceded before us on behalf of the appellant that, so far as the half share of Dhani Ram is concerned, the claim for possession by the plaintiff is not maintainable. Dhani Ram was no party to the subsequent bond of the 28th of June, 1881, and therefore all that he was liable for was the amount of the prior mortgage of 1880. We have, therefore, to consider in this appeal whether the plaintiff is entitled to recover possession of the remaining half of the mortgaged property on the ground that the amount of the subsequent document of the 28th of June, 1881, has not been paid. The decision of this question depends upon the construction of the document last mentioned. It must be observed that no hard and fast rule can be laid down and that each case must be decided upon the construction of the particular document and the circumstances connected with it, and that upon the question of construction no light can be derived from the construction of similar documents in other cases. Coming now to the document of the 28th of June, 1881 it refers at its commencement to the one-third share of Jhamman, the executant of that document, which was already under mortgage to the plaintiff Har Prasad under the earlier document of 1880. He then proceeded to state that he was borrowing a further sum of Rs. 50 from the same creditor, and he added the following covenant, as translated in the paper book before us: "The stipulation is that when I shall redeem the land mortgaged I shall also pay the said amount, with interest at the stipulated rate, and then the mortgaged property shall be redeemed. Without payment of the said sum the property shall not be redeemed". We have to consider what the intention of the executant of this document. was in inserting this clause in it. In my opinion the effect of this clau