Sinha, J.This is a judgment-debtors appeal from the decision of the learned District Judge of Darbhanga affirming that of the Munsif, second Court, of the same place, in execution proceedings. The facts leading up to this appeal are as follows: On 1st March 1935 the appellants family executed what has been called a sudbharna (usufurctuary) mortgage bond in favour of the respondent for the sum of Rs. 14,400, purporting to give possession of certain raiyati lands, about 84 bighas in area, as also of certain proprietary shares in a number of estates.

Subsequently, on 8th April 1935, the mortgagee e executed a deed of lease (patta) in favour of mortgagor 1, who is the only adult per. son amongst the mortgagors, in respect of the entire mortgaged properties at the annual rent of Rs. 432, which sum works out to be the interest on Rs. 14,400/ at 3 per cent, per annum, the rate of interest stipulated in the mortgage bond aforesaid. The mortgagors failed to pay the stipulated sum of Rs. 432 annually as aforesaid with the result that the mortgagee instituted a suit for money and obtained, judgment in his favour for the sum of Rs. 1, 648 odd. The decree for money was put into execution, being execution case No. 407 of 1941, and the decree-holder attached to sell the equity of redemption of the judgment-debtor, appellant before us, in respect of the entire raiyati lands mortgaged as also two items of zamindary property which are some of the mortgaged properties.

2. The judgment-debtor took objection u/s 47, Civil P.C., to the execution, chiefly on the grounds: (1) that the price suggested, by the decree-holder for the properties proceeded against was wholly inadequate; and (2) which is the more serious of the objections raised, that the execution is not maintainable in view of the provisions of Rule 14 of Order 34, Civil P.C. The execution Court negatived both these objections holding that the valuation suggested was quite fair, and that Rule 14 of Order 34, Civil P.C., had no application to the facts of the present case, relying chiefly on the decision of this Court in Ramnarayan Singh v. Bishvanath Missir AIR 1920 Pat. 723. The unsuccessful objector judgment-debtor preferred an appeal to the District Judge of Darbhanga who dismissed the appeal holding that he was bound by the decision of this Court referred to above and not of the other High Courts. Hence this second appeal. Counsel for the appellant has contended, in the first place that as it is a matter between the mortgagor and the mortgagee, Rule 14 of Order 34 comes into operation irrespective of the consideration whether the mortgage bond aforesaid and the lease under which the decree had been obtained were or were not parts of the same transaction; and secondly, that the two documents were parts of the same transaction, and therefore, the decree-holder could not sell the equity of redemption of the judgment-debtor in some of the mortgaged properties, but that he should have brought a suit for sale in enforcement of the mortgage bond itself inasmuch as the decree, though in form a money decree, was really one for the interest accruing due in respect of the mortgage.

3. It is obvious that the determination of this case depends entirely upon the construction of the words of Rule 14 of Order 34, Civil P.C., and particularly, whether the claim in the money suit aforesaid could be said to have arisen under the mortgage. The first contention raised by counsel for the appellant may be disposed of at once by saying that there is no warrant for the conclusion that simply because the claim has arisen between two parties who also happen to be mortgagor and mortgagee in respect of certain dues arising from the possession of the mortgaged properties the claim under the money decree could be said to have arisen under the mortgage. In my opinion, the contention is too broadly stated to be acceptable. No authority has been cited before us in support of this sweeping proposition of law. There is neither principle nor authority behind this contention which would make the position of mortgagees very difficult indeed.

4. There is no doubt that Rule 14 of Order 34 of the Code has been enacted for the benefit of mortgagors, the apparent intention of the Legislature being that the mortgagors should not be prejudiced in their right of redemption otherwise than under a suit for sale under the mortgage so that the Court may adjudicate upon all the rights and liabilities of the parties inter se. But that does not mean that a mortgagor should be entitled to pray in aid the provisions of Rule 14 of Order 84 in all cases in which the mortgagee has entered into some sort of arrangement with his mortgagor with respect to the properties mortgaged. In my opinion, the mortgagor can secure the benefit of Rule 14 of Order 34 of the Code only in those cases in which it can be reasonably inferred that the decree for payment of money has been passed in satisfaction of "a claim arising under the mortgage," in other words, only in those cases in which the Court is satisfied that the transaction in question was a part and parcel of the mortgage transaction itself. Such a case can arise not only where the decree for payment of money arises out of the mortgage deed itself, but also where there are more than one separate deed which are so intimately connected with each other as could reasonably be said to form part of the same transaction.

5. Hence, in my opinion, the only material question arising for determination in this case is whether the sudbharna bond of 1st March 1935 and the patta dated 8th April 1985 can be said to be parts of the same transaction. If they are so, the appellant is entitled to the benefit of Rule 14 of Order 34; if not, his objection is entirely without merits. It may be noted here e that the appellant has not persisted in this Court in his objection regarding the valuation of the property proceeded against. Counsel for the appellant has raised only the question relating to the construction of Rule 14 of Order 34 of the Code.

6. Now, is there any single crucial test to determine the question as to whether two apparently separate transactions are or are not parts of a single transaction No rough and ready method has so far been laid down, nor can any such method be found to determine this question. In some cases, for example, in Ibrahim v. Nihal Chand AIR 1920 Bom. 202, followed in Bhaichand Kirparam v. Ranchhoddas Manchharam AIR 1921 Bom. 285, it has been suggested that the fact that the two documents were executed on the same day indicated that they are parts of the same transaction. But with all respect, it cannot be laid down as a general rule that where two documents have been executed on the same day between the same parties, that is proof conclusive of their being parts of the same transaction. There are some instances where two documents were held to be parts of the same transaction even though they had not been executed on the same day: see the cases in Mt. Kadma Pasin v. Muhammad Ali AIR 1919 All. 435 and Nanekeshwar Prasad v. Nand Gopal Ram AIR Pat. 282. Again we may conceive of cases where a mortgagor 9 may execute a mortgage bond and then on the same day by a separate document enter into another transaction clearly indicating by their terms that the two deeds were not parts of the same transaction but were intended between the parties to operate separately and independently of each other.

7. Again it has been said in some of the decisions, for example, in Chinnappayan v. Narayana Pattar AIR 1940 Mad. 59 that the fact that the lease is expressed as ending on the same date as the date on which the right of redemption begins; that is, where the period of the mortgage bond and of the lease coincide, the parties must be deemed to have intended to enter into one single transaction though evidenced by two separate deeds. In my opinion, this criterion also, though helpful in some cases, is not decisive of the question. Instances may be given where it has been held that the two documents were parts of the same transaction even though they do not cover the same period of time. In this connexion reference may be made to the case in AIR 1927 32 (Privy Council) . In some cases stress has been laid on the fact that if the second deed can be related to the first deed of mortgage by identity of the property dealt with, the two may be said to be parts of the same transaction. But it has been laid down that this also cannot be a sure test inasmuch as the mortgagee may be satisfied with continuing in possession of a portion of the property mortgaged and may allow the mortgagor to remain in possession of the other portion of the mortgaged property and pay to the mortgagee a sum equivalent to the interest on that portion of the mortgage debt, and even then the two have been held to be parts of the same transaction. By way of illustration, reference may be made to the case already cited above, namely Mt. Kadma Pasin v. Muhammad Ali AIR 1919 All. 435.

8. Hence in my opinion, it is neither possible nor desirable to lay down any hard and fast rule which could be said to govern such cases. If such a rule could possibly be laid down, mortgagees who do not intend to take upon themselves the trouble of taking the mortgaged property in their khas possession but who wish to clothe the transaction in the garb of a usufructuary mortgage bond, may attempt to camouflage the transaction by using such words in the document as to steer clear of the rule with a view to depriving the mortgagor of the benefit of Rule 14 of Order 34. Hence, in my opinion, the safest rule to follow is to say that each case must be judged on its own facts as disclosed in the transaction between the parties, evidenced by one or more than one document. But I may suggest that one test may generally be applied to enable the Court to say that the two documents form part of one and the same transaction, where it appears on a reasonable construction of the documents that the properties were given in security not only for the principal amount secured under the sudbharna bond but also for the interest accruing thereupon. In other words, where the Court finds that though the documents have taken the shape firstly of a mere usufructuary mortgage bond, the mortgagee purporting to take possession of the mortgaged properties, but in reality the second document whereby possession is purported to be given back to the mortgagor is merely a device to ensure regular payment of the interest, which also is secured on the same mortgaged properties, it may generally be said that they are parts of the same transaction. Such a transaction may be evidenced by more than one document which may have been executed on different dates with varying periods of their operation, and possibly, even in the name of different parties, benami for the real mortgagor and mortgagee. The Court has to look upon the transaction as a whole after tearing off the veil attempted to be thrown round the real intent of the parties.

9. Bearing these general observations in mind, the nature of the present transaction has to be gathered from the two deeds aforesaid. The so-called sudbharna bond contains the following material terms: The sudbharna bond is to secure repayment of Rs. 14,400 carrying interest at 3 per cent, per annum for a period of seven years, that is, up to 30th Baisakh 1349 Fasli and agreeing to repay the entire principal sum with interest on 30th Baisakh 1349 Fasli in default of which the mortgage was to operate with all its terms and conditions until repayment. In the event of dispossession of the mortgaged property or of the mortgagees paying certain encumbrances on the mortgaged property or of the mortgagee paying certain amount to save the mortgaged property the mortgagors stipulated to repay the principal loan together with such additional sum as the mortgagees may have paid on account of the property, with interest at 3 per cent, per annum from the material date to the date of repayment. It is finally said that in security for the loan, principal with interest, the properties scheduled in the bond were mortgaged in sudbharna. It is also stipulated between the parties that the occupancy kasht lands mortgaged could be separately redeemed on payment of RS. 11,000 and & so could the milkiat shares mortgaged on payment of Rs. 3400, for which sums the two categories of properties have been given in sudbharna. But it was specifically said in the bond that until the repayment of the entire money secured under the mortgage bond all the properties would continue to be hypothecated.

10. The patta dated 8th April 1935 recited the mortgage bond aforesaid for Rs. 14,400 and said that for the satisfaction of interest on the said principal sum the properties scheduled in the sudbharna bond had been given in sudbharna. It is then recited that the mortgagee accepted the proposal of the mortgagor to grant a lease for seven years of the mortgaged properties at an annual jama of Rs. 432, the lease to terminate on the full moon day of Fagun 1349 Fasli. It may be noted that the lease was to take effect from Fagun 1342 Fasli, that is to say, though it was executed in Chait 1342 it was to take effect practically from the date of the mortgage bond itself. It was further stipulated that in default of payment of the said sum of RS. 432 per year on the full moon day of Magli each year interest at 2 per cent, per mensem had to be paid and that failure to pay the said annual rent for two consecutive years would entail the eviction of the lessee from the lease-hold property, entitling the mortgagee to take them into his khas possession. It was, further, provided that on the expiry of the term of seven years afore, said the mortgagee might take khas possession of the properties or settle the same with the mortgagor or with some third party. It may also be noted that both under the mortgage bond ass well as under the lease the mortgagors were to pay the landlords rent and cesses, Government revenue and all other demands of a public nature. Then occurs the most important clause in the deed which runs as follows:

It may be noted that if the said lessee pays some thing over and above the aforesaid fixed jama towards the dues in respect of the sudbharna mortgage bond dated 1st March 1935 in that case to the extent of the interest calculated at 3 per cent, per annum on the amount paid the aforesaid fixed jama will be reduced, and the said lessee shall be liable to pay the modified jama after setting off the interest.

11. On a close examination of the terms of the two deeds as set forth above there can be no reasonable doubt that the mortgagee never intended to take a mere usufructuary mortgage bond in the sense that he would take possession of the property and appropriate the rents and profits thereof in lieu of the interest on the principal sum secured. On the other hand, it is equally clear that the mortgagee stipulated that he would be entitled to receive from the mortgagor year after year the fixed sum of Rs. 432 per year, being the interest at 3 per cent, per annum on the principal sum aforesaid, or a larger sum by way of interest if they had to expend some additional sum on account of the mortgaged property or a lesser sum if the mortgagor paid any sum in excess of the fixed amount of Rs. 432, thereby causing a proportionate reduction of the principal sum and the interest thereon. In my opinion, therefore, the two deeds are parts of the same transaction.

12. A similar, though not the identical, question came up for decision before their Lordships of the Judicial Committee in Panaganti Ramarayaningar v. Maharaja of Venkatgiri A.I.R.(1927) 1927. In that case there was a mortgage with possession under a deed which also contained, like the present one, a personal covenant to pay principal and interest; and there was further a lease back of a portion of the property on a rent equal to the interest of the principal amount secured under the bond on that portion of the mortgaged property, though the period of the continuance of the two documents was not co-extensive. By the mortgage bond properties A, B, C and D were given in usufructuary mortgage for a sum of Rs. 11,00,000 with interest at 10 annas per cent, per month to be recovered from the rents and profits. The mortgagor was to have the opportunity to pay off the mortgage money at the end of four years with option to defer payment for a further period of two years. By the other deed, called a muchlika or counter part lease, the mortgagor was granted a lease by the mortgagee only of a property for a period of four years. The mortgagee was to receive from the mortgagor a fixed yearly rent which was on calculation equal to interest on two and a half lakhs of rupees at ten annas per cent, per month. In default of payment of the rent reserved the amount was to be recovered from the income of the mortgaged properties besides other properties. On a construction of the two documents aforesaid their Lordships of the Judicial Committee held that if the mortgagor or his assignee wanted to redeem the mortgage, he must pay not only the principal sum secured under the mortgagee-lessor as also the rents accrued up to date of redemption on foot of the counter-part of the lease aforesaid. Though the question to be determined in that case was not the application of Rule 14 of Order 34, Civil P.C., bat of Sections 61 and 62, T.P. Act, their Lordships came to the conclusion that the mortgage and the lease were parts of the same transaction, the latter being in the nature of a machinery for realising the interest. The decision of the Judicial Committee throws a flood of light on the considerations which arise in a case like the present. It will be noticed from the recital of the bare summary of the facts disclosed in the reported decision of their Lordships of the Judicial Committee that the lease did not embrace the entire mortgaged properties, nor was the period of the lease co-extensive with the period of payment fixed by the mortgage bond, nor was the rent reserved equal to the interest on the entire eleven lakhs of rupees advanced as principal but only on two and a half lakhs which could be apportioned on the A properties. Even in those circumstances their Lordships came to the conclusion that the two were parts of the same transaction. The case before us is in my opinion, a stronger one than the case which went up to their Lordships of the Judicial Committee, inasmuch as the rent reserved under the lease was exactly the same amount as would cover the interest on the entire principal sum lent; and the properties as well as the period of the two documents were co-extensive if we ignore the difference of the two months, namely, Chait and Baisakh, of the seventh year of the deed of lease, which, in my opinion, is entirely immaterial from the point of view of a cultivator.

13. A recent decision by a Division Bench of this Court, of which my Lord the Chief Justice was a member, has discussed the identical question which is before us for decision, namely, the case in Nanekeshwar Prasad v. Nand Gopal Ram AIR Pat. 282. In that case there was a mortgage with possession of a house and the mortgagee was to appropriate the rent and income therefrom in lieu of the amount of interest on the loan. Two days later a kirayanama was executed by the mortgagee in favour of the mortgagor letting the house to the mortgagor on rent to be paid monthly. The kirayanama also recited that it was for an indefinite period and was to continue till the redemption of the rehan bond. The mortgage bond was expressed to be for a period of one year and was to continue in force until payment of the debt secured by the mortgage. In that case, it appears from the report, there was no stipulation as to the rate of interest payable on the principal sum advanced, but the parties had agreed that the mortgagee would appropriate the entire rents and profits from the property in lieu of interest. On a default in the payment of the rents reserved, the mortgagee sued the mortgagor to judgment and sought to put the decree in execution by attachment and sale of the equity of redemption. It was held by this Court, reversing the decision of the Courts below in second appeal, that the mortgage and the kirayanama were parts of the same transaction and that the objection of the judgment-debtor based on Rule 14 of Order 34, Civil P.C., was well-founded.

14. I think I should say something about the earlier decision of this Court AIR 1920 Pat. 723in Ramnarayan Singh v. Bishvanath Missir where a similar question was mooted and the objection of the judgment-debtor under Rule 14 of Order 84 of the Code was negatived by a Division Bench of this Court. As this is the decision on which the Courts below in the present case rely, I think I should examine this case in some detail just to show that that case is no authority for the decision of the present one. The facts of that case were as follows: A usufructuary mortgage bond was executed in 1908 and the mortgagee was put in possession of the property and continued in possession for a period of seven years. In 1915, the mortgagees granted the mortgagor a lease of the property in consideration of an annual payment to them of RS. 300. The lease was to be operative until 1920. On default by the mortgagor to pay the aforesaid sum under the lease the mortgagees obtained a money decree and in execution thereof proceeded to sell the equity of redemption in the mortgaged properties. The objection by the mortgagor to the sale on the ground that the case would be governed by Rule 14 of Order 34 of the Code was overruled by the High Court in agreement with the lower appellate Court. The decision of the High Court is based apparently on the ground that the lease was a transaction independent of and separate from the earlier transaction of mortgage. Without going to the length of saying that this decision has lost much of its force after the pronouncement of the Judicial Committee in Panaganti Ramarayaningar v. Maharaja of Venkatgiri (1927) 14 AIR 1927, I think the decision in that case can be supported on the ground that the two deeds could not be treated as parts of the same transaction inasmuch as the lease was never in contemplation of the parties at the time the mortgage bond had been executed. So that decision may g be justified on its own facts, but at the same time, is not an authority which governs the case before us. Their Lordships in that case have expressly said this:

The present case is really stronger than Uttam Chandra Daw v. Raj Krishna Dalal AIR 1920 Cal. 363, and the cases mentioned therein, for while in them the lease was executed almost at the same time as the mortgage, and might be considered to have some connexion with each other, here the lease was executed seven years after the mortgage and could not well be said to be a part of the same transaction. A claim on the basis of the lease could not be said to be a claim under the mortgage.

15. Counsel for the respondent has contended, in the first place, that it is a question of fact and not of law, and secondly, that the two documents in this case cannot be treated as parts of the same transaction on the following grounds: (1) that the period of the lease and that of the mortgage do not synchronise; and (2) that it is not said in the deed of lease that the rent payable per year was charged on the property leased out. So far as the first point raised is concerned, I cannot agree to the proposition that the question of whether the two documents were or were not parts of the same transaction is a question of fact which is not open to us in second appeal. There are a number of cases which came up to the High Court in second appeal and were dealt with not on the footing that the finding could not be challenged in second appeal. On the other hand, we find that the two cases of this Court referred to above were dealt with as second appeals, and their Lordships of the Division Bench interfered with the findings of the two Courts below and allowed the appeal in Nanekeshwar Prasad and Another Vs. Nand Gopal Ram and Others, . As I have said above, each case has to be judged on its own facts as disclosed in the transaction between the parties, as evidenced by the documents executed between them. Such a question is really a question of law in the sense that the Court has got primarily to construe the documents of title, or the documents evidencing the contract between the parties which is a question essentially of law.

16. Coming to the second contention raised by counsel for the respondent, in my opinion, it is not necessary that in order to be parts of the same transaction, the period for which the two deeds were to be in force should be identical. As authority for this proposition we may refer to the decision of the Judicial Committee in AIR 1927 32 (Privy Council) . In that case the mortgage was to hold good for a period of six years in the first instance, and then to continue to be in force at an enhanced rate of interest. But the lease in that case was only for a period of four years. This disparity in the period of the two documents did not stand in the way of their Lordships coming to the conclusion that they were parts of the same transaction. Again, in the present case, though the deed of lease does not provide that the annual rents accruing due from the mortgagor lessee would be charged upon the mortgaged property, still we find in the mortgage deed itself that the mortgagee was to look forward to payment of principal plus interest at 3 per cent, per annum by sale of the mortgaged property, and that was exactly the amount reserved as rent in the deed of lease. Hence, reading the two documents together it is apparent that the property was hypothecated not only for the payment of the principal sum secured but also for the interest accruing due every year, and in my opinion, the mortgagee could have sued for the realization of the principal and the interest by sale of the mortgaged properties after the lapse of the period fixed for payment of the mortgage dues. In that view of the matter, in my opinion, there is no escape from the conclusion that the present case is governed by the provisions of Rule 14 of Order 84 of the Code.

17. In other words, the mortgagee has to bring a suit for sale for payment of the principal sum as also all the interest up to the date of suit giving credit for the amount for which he has recovered judgment in the rent suit aforesaid; and such a suit will not be hit by the provisions of Rule 2 of Order 2, Civil P.C. After obtaining a final decree for sale the mortgagee can sell the entire mortgaged properties for the realization of the two sums decreed in the rent suit and the mortgage suit.

18. In the result I would allow this appeal and set aside the judgment of the Courts below with costs throughout.

Fazl Ali C.J

19. I agree.