JUDGMENT
1. The facts out of which this appeal arises appear in the order of remand dated the 9th July 1909. In that order three mortgages were referred to and certain issues were referred to the Court below. The first issue was “Had the defendants Nos. 5 and 6 notice of the bonds mentioned in the plaint”. The order of remand refers specially to the three bonds dated July, August and September 1905. There was a fourth agreement or bond dated January 1906. This bond was not gone into with any great particularity when the appeal was previously before the Court. As, however, we think that the issue was sufficiently wide to cover this last mentioned bond also, it will be necessary to deal with it later on. The first three bonds are all in practically the same language. They purport to hypothecate specific growing crops. It is true that the bonds also contain general words to the effect that all the persons and property of the mortgagors shall be liable for the re-payment of the advances. In our opinion on the true construction of these three bonds they operate merely to hypothecate the crops that were growing in the fields specified at the dates they were respectively entered into. It now appears that none of the particular crops, which were sold to the defendants Nos. 5 and 6, were growing at the date of the mortgage. Therefore, the plaintiff can have no relief against the defendants, Jaigopal and Ram Lal by virtue of the three bonds of July, August and September 1905. It is, however, contended that they, having purchased the subsequent growing crops with notice of the plaintiff’s lien, are liable by virtue of the provisions of the fourth bond. This fourth bond or agreement commences by a recital that the mortgagors have borrowed monies on bonds, pro-notes etc. It does not state what the amount of the debt is. It then proceeds to provide that all land now cultivated or which in future shall be cultivated and all crops which may be sown now or hereafter by the mortgagors, their sub-tenants or co-sharers and whether the crops standing or cut, should remain hypothecated for the debt whatever might be due by the so-called mortgagors to the so-called mortgagees. We may mention here that the learned Judge on demand found that Jaigopal and Ram Lal had notice of the bonds upon very vague evidence. The judgment on this point was ex parte and no cross-examination was had on behalf of Jaigopal and Ram Lal. The learned Judge refused an application to allow the witnesses for the plaintiff to be cross-examined or for evidence to be given on behalf of Jaigopal and Ram Lal. Having regard to the fact that this Court had specifically remanded this issue, we think the learned Judge was possibly wrong in not giving Jaigopal and Ram Lal an opportunity of presenting their case. They might, if he was really satisfied that they were in fault for their non-appearance on the date fixed, have been punished by making them pay the costs. As, however, no objection has been, taken to the finding we feel bound to proceed on the assumption that Jaigopal and Ram Lal had notice of the bond of January 1906. We think that this bond is altogether too vague and uncertain to be enforced. No doubt, it has been decided that future crops-can be hypothecated, but we consider that the agreement or bond must be of a nature of which a Court of Equity would decree specific performances. A mortgage of future crops operates as an agreement to assign. The property at the date of the mortgage does not exist and the Courts have construed such a document as being binding as, an agreement to assign the property as soon as it comes into existence. Such an agreement in order to be enforceable must be an agreement which a Court of Equity would enforce. In the present case there is only a vague statement as to the debt alleged to be due by the mortgagors. There is no specification of the particular land which is hypothecated or on which the crops would grow. In our judgment the agreement or bond of January 1906 cannot be enforced against the defendants, Jaigopal and Ram Lal. A simple money decree has been given against defendants Nos. 1 and 2, which was quite correct. We dismiss the appeal with costs including in this Court fees on the higher scale. Only one set of costs will be allowed.
