The implication of personal liability in a mortgage is determined by the nature of the mortgage and the terms relating to the remedy, as well as the application of Section 19 of the Contract Act in cases of fraud or misrepresentation.

Jackson, A J C—The question we have to decide is whether, in a Lahan Gahan mortgage, that is, a mortgage in which the remedy provided is foreclosure in default of payment by given date and in which the only remedy expressly given is that of foreclosure, there is by implication no covenant of personal liability. The reference has been made necessary by the decision in Gopikisan v. Mt. Mankuarbai,1924 AIR(Nag) 97 which applied Ram Narayan Singh v. Adhindra Nath Mukherji, 1916 AIR(PC) 119 as interpreted in Jiwandas Md. Haji Wali Md. v. Mt. Janki, 1922 AIR(Nag) 58. According to Seth Gopikisan v. Mt. Mankuarbai,1924 AIR(Nag) 97 the Privy Council decision in Ram Narayan Singh v. Adhindra Nath Mukherji (2) must be considered to have overruled Govind v. Jagannath,1916 12 NLR 19, in which it was laid down that where in a mortgage-deed the remedy of the mortgagee is expressed to be foreclosure the mere fixation of a date by which the mortgagor undertakes to pay the mortgage-money does not amount to a stipulation binding him to repay the same within the meaning of Clause (a), Section 68, T.P. Act.

2. As has been held in Jag Sahu v. Mt. Ram Sakhi Kuer, 1922 AIR(Pat) 167 and Dattambhat Rambhat v. Krishnabhat,1910 84 ILR(Bom) 462, the insertion in a usufructuary mortgage of a covenant by the mortgagor to repay the consideration money on a particular date may entitle the mortgagee to a personal decree against the mortgagor; but it does not follow that that would be the effect of inserting such a covenant in a mortgage by conditional sale or in a mortgage of a similar nature to one by conditional sale. It has been pointed out in Govind v. Jagannath,1916 12 NLR 19 that a Lahan Gahan mortgage does not come within the definition of a mortgage by conditional sale in Section 58 (c), T.P. Act. Nevertheless, the effect of a Lahan Gahan mortgage is the same as that of one by conditional sale and mortgages in forms similar to that of Lahan Gahan, such as ''kutkubala'' or ''bai-bil-wafa,'' were re-cognized by their Lordships of the Privy Council in Balkishen Das v. W.F. Legge,1900 22 All 149, in a passage that occurs at p. 159, as standing on the same footing as mortgages by conditional sale. In that case their Lordships said that it is not necessary in such mortgages that the mortgagor should make himself personally liable for the repayment of the loan. Again, in Kalha Singh v. Paras Ram,1895 22 ILR(Cal) 434, another Privy Council decision, the following occurs: In the next place, although an unqualified admission of a debt no doubt implies a promise to pay it, their Lordships are not prepared to hold that that is necessarily so where there is an express promise to pay in a particular manner.

3. These decisions are authority for the view that a personal covenant is not necessarily implied in every mortgage. In Narotam Das v. Sheo Pragash Singh,1884 10 ILR(Cal) 740 their Lordships have held that there was no personal covenant to pay in an instrument which contained a promise to repay the loan within a fixed period and then provided, in default of payment, for satisfaction of the debt out of the property hypothecated.This is exactly the same view as has been taken in Govind v. Jaggannath,1916 12 NLR 19.It goes further than the two Privy Council decisional ready cited and makes it clear that in some mortgages the nature of the mortgage gives rise to the implication that there is no personal covenant.

4. It has now to be considered whether the Privy Council have taken a different view in Ram Narayan Singh v. Adhindra Nath Mukherji, 1916 AIR(PC) 119. At p. 400 (of 44 Gal.) the following passage occurs: In considering this question it must be borne in mind (i) that a loan prima facie involves such a personal liability; (ii) that such a liability is not displaced by the mere fact that security is given for the repayment of the loan with interest; but (iii) that the nature and terms of such security may negative any personal liability on the part of the