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Judgment
The only question in this appeal is whether the bond executed by the insolvents on 26th July 1911 created a charge on the Immovable property.
They subscribed for half a ticket in a Kuri and took a prize of Rs. 10,000. By the rules of the Kuri a subscriber who took a prize was to furnish
security for the payment of future subscriptions and it is significant that the bond given by the insolvents was stamped as if it was a mortgage. It
seems to us clear that the intention of the parties was to create a charge. The respondent relied on two features of the deed. The first is that the
insolvents undertook, when required by the stake-holder, to give him a mortgage on the property. The second is that the clauses on which the
appellant relies were added to the deed as a sort of supplement, though before it was signed by the insolvents.
The first point would undoubtedly be conclusive in favour of the respondent, were it not for the supplementary clause. That clause runs "" We
and the properties mentioned in the aforesaid partition deed are liable for any arrears of future subscription mentioned above. The properties in A
and B schedules of the said partition deed are situated in Purayiri Amsom, Kannadi Amsom, included in Koyalmannan District and Kallutikode
Amsom comprised in Mannarkat sub-district"". We attach no significance to the fact that it is a supplementary clause. It is as much part of the
completed deed as the undertaking to give a mortgage when required and we see no reason why it should not be given effect to, if it creates a
charge. A number of decisions have been cited before us. That most in point seems to be United Realization Company v. Inland Revenue
Commissioner (1899) LR 1 QBD 361. Wills, J. said ""It is plain, I think, from the cases to which the Solicitor-General called our attention, that the
introduction into an instrument of a provision that a demand or request shall be one of the preliminaries to the obligation to execute a deed does not
determine the question whether the instrument creates a present charge or not. That question is to be decided upon perfectly different
considerations. If an intention to give a present charge can be collected from the instrument, the introduction of such a provision does not make it
less a present charge."" As we have already observed, we are satisfied that the intention here was to create a present charge. The rule of the Kuri
was that security should be furnished for future subscriptions and the document was stamped as if it was a mortgage.
The appeal is allowed with costs throughout. Costs to come out of the Estate.