Judgement Appeal from a decree of the above Court (Nov. 20, 1897) varying in favour of the respondent a decree of the Subordinate Judge of Sultanpur (April 30, 1895). The plaintiff, as representative of one Inderjit Singh, deceased, sued the defendant, as representative of the late Raja Surnam Singh, taluqdar of Gaura Katari, to redeem a mortgage of the following five villages, namely (1.) Hargaon; (2.) Ahed; (3.) Machharia; (4.) Bahadurpur; (5.) Poorah Pershad-Badal. The Courts in India differed under the circumstances stated in their Lordships judgment as to the terms on which such redemption should be permitted. In his plaint the respondent claimed under these circumstances to redeem the five villages on payment of the principal money secured, contending that on the true construction of the mortgage deed, which is set out in their Lordships judgment, no interest was payable, although a portion of the security had been lost without negligence by the mortgagee. The appellant by his written statement denied that Inderjit Singh ever had any title to the villages mortgaged other than those in suit. He denied that possession of all the mortgaged villages was delivered to him in pursuance of the mortgage. Having been deprived of a great portion of his security, he claimed on redemption to charge interest at the rate of 2 per cent, per mensem on the principal, and credit to the mortgagor all payments made by him in excess of the Government revenue and cesses. The Subordinate Judge found that only the villages in suit and Poorah Adhar were the property of Inderjit Singh, and that he had never had any title to the remaining six villages; and that these latter villages were not lost in consequence of any negligence for which the mortgagee could be responsible. He was of opinion that the mortgagee was not put into possession of these six villages and of Poorah Adhar on the execution of the deed of mortgage. He held that the mortgagee, not having been put in possession of the entire property mortgaged, was entitled to charge as interest or damages 2 per cent, per mensem on the principal, giving the mortgagor credit for payments made in excess of the Government revenue and cesses; and as there were no such payments, he decreed redemption on payment of Rs.5600 principal, Rs.57,792 interest up to June 13, 1894, and costs of suit. In appeal the Judicial Commissioners Court found that on the execution of the deed of mortgage Raja Surnam Singh was placed in possession of all the twelve villages as mortgagee. On the construction of the deed of mortgage they were of opinion that the mortgagor covenanted to pay interest at 2 per cent, per mensem until possession of the mortgaged villages was delivered to the mortgagee, after which interest ceased, the mortgagee being then entitled to the rents and profits of the property in lieu of interest, and that redemption was to be effected on payment of the principal sum, Rs.5600, together with such interest as may have accrued until delivery of possession. On the legal effect of the mortgagee being deprived of such rents and profits in lieu of interest, in consequence of the failure of the mortgagor to secure his possession, the judgment, after a statement that it was admitted that the respective rights and liabilities of the parties should be determined under the provisions of Act IV. of 1882, proceeded as follows— In the present case possession of the entire property was delivered to the mortgagee. Under the terms of the contract of mortgage the mortgagor covenanted to pay interest at 2 per cent, per mensem up to the date of delivery of possession of the mortgaged property (i.e., of the entire mortgaged property). He did not agree to pay interest after delivery of possession, the arrangement being that after such delivery of possession the mortgagee should enjoy the rents and profits. There was thus no question of accounts after delivery of possession, and the mortgage was redeemable at any time on payment of the principal, together with such interest as might have accrued until delivery of possession. It appears to me that in a mortgage of this nature the mortgagor is, under ss. 60 and 62 of Act IV. There was thus no question of accounts after delivery of possession, and the mortgage was redeemable at any time on payment of the principal, together with such interest as might have accrued until delivery of possession. It appears to me that in a mortgage of this nature the mortgagor is, under ss. 60 and 62 of Act IV. of 1882, entitled to redemption on, payment of the principal only (no interest having accrued between the date of the mortgage and delivery of possession), irrespective of the fact that subsequent to the delivery of possession he failed to secure to the mortgagee continuance of possession in regard to part of the mortgaged property; there being no provision in the deed for the payment of interest after delivery of possession, or if after obtaining possession the mortgagee was deprived of the possession of the whole or any portion of the mortgaged pro perty. The mortgagee, on being deprived of the possession of the whole or part of the mortgaged property, had his remedies by suit against the mortgagor for the recovery either of the possession of the property or of the mortgage money with, perhaps, damages (s,. 68, Act IV. of 1882). I can find no provision in Act IV. of 1882 which authorizes him to charge against the mortgagor in the suit for redemption the rents and profits which he would have obtained had his possession not been disturbed, or interest as damages on account of such loss of profits." In the result a decree was passed for redemption of six villages on payment of Rs.5600 only, and each party was directed to pay his own costs in both Courts. De Gruyther, for the appellant, admitted that the finding of the Court as to possession of the entire mortgaged property having been given to the mortgagee could not on the evidence be disputed, but contended that it was equally clear that the mortgagor had failed to secure that possession. The appellant or his predecessor was deprived of several villages within two years of obtaining possession thereof. Redemption, therefore, should only have been decreed on payment by the mortgagor of interest at the stipulated rate for the period during which the mortgagee was not in possession of the entire mortgaged estate, calculated up to the date of redemption. The appellant or his predecessor was deprived of several villages within two years of obtaining possession thereof. Redemption, therefore, should only have been decreed on payment by the mortgagor of interest at the stipulated rate for the period during which the mortgagee was not in possession of the entire mortgaged estate, calculated up to the date of redemption. Another view of the mortgagees rights was that he was entitled to a sum of money equal to the rents and profits of that portion of the mortgaged property possession of which had not been secured to him. Cowell, for the respondent, contended that on the true construction of the mortgage deed no interest was payable, since it was now admitted that possession of all the villages had been given. The appellant had shewn by his conduct that he so understood the transaction, for during forty years of dispossession and until suit for redemption he had never claimed interest. Disputes and even litigation had ensued between mortgagee and mortgagor, but no claim to interest had been put forard. On dispossession of part he could have sued for foreclosure or sale of the remainder. But he elected to remain satisfied with the diminished security, which admittedly was ample. De Gruyther replied. The judgment of their Lordships was delivered by SIR ANDREW SCOBLE. The father of the respondent, one Inderjit Singh, a zemindar of Oudh, in the year 1851, mortgaged twelve villages in which he had proprietary rights to Raja Surnam Singh, the ancestor of the appellant, to secure an advance of Rs.5600. De Gruyther replied. The judgment of their Lordships was delivered by SIR ANDREW SCOBLE. The father of the respondent, one Inderjit Singh, a zemindar of Oudh, in the year 1851, mortgaged twelve villages in which he had proprietary rights to Raja Surnam Singh, the ancestor of the appellant, to secure an advance of Rs.5600. The mortgage deed is dated June 15, 1851, and the material clause is in these terms— "I do hereby mortgage the following villages to the said Raja Surnam Singh at Rs.2 per cent, interest, and promise and put down in writing that until delivery of possession of the aforesaid villages to the raja sahib mentioned above, I shall pay interest at the rate of Rs.2 per cent, on the above-mentioned mortgage money ; that, until I pay up the sum of Rs.5000 on account of principal, with interest to the very last pie, Raja Surnam Singh shall continue in possession and occupation (of the aforesaid villages), and that I shall put forward no excuse or objection.” It may here be noted that the learned Judicial Commissioner found that possession of the entire mortgaged property was delivered to the mortgagee on the execution of the mortgage, and that this finding was not disputed before their Lordships. By an instrument of even date with the mortgage deed, Raja Surnam Singh, the mortgagee, leased to the mortgagor, Inderjit Singh, six of the mortgaged villages at a consolidated rental of Rs.2801 per annum, less Rs.800 per annum allowed to the lessee as nankar. The lease was to take effect from September 11, 1851. On September 18, 1853, one Hanuman Persad obtained a kabuliat from the King of Oudh of the taluqa of Bhawan Shahpur in which the twelve mortgaged villages were included, and forcibly dispossessed Raja Surnam Singh, the mortgagee and previous kabuliat holder. The circumstances of this transaction are not very clear, but Charan Singh, one of the witnesses for the plaintiff, gives a characteristic explanation " In Nawabi might was the right, and kabuliats were executed by any one. There was none to hear to any grievances, and the kabuliatdar forcibly ejected the previous holder." Whatever his title may have been, Hanuman Persad remained in possession until the annexation of Oudh by the British Government in 1856. There was none to hear to any grievances, and the kabuliatdar forcibly ejected the previous holder." Whatever his title may have been, Hanuman Persad remained in possession until the annexation of Oudh by the British Government in 1856. The procedure adopted by that Government for the purpose of ascertaining rights of property in land in the territories annexed is matter of history, and has frequently formed the subject of consideration by this Committee. The first summary settlement was made with the persons actually in possession, and decided nothing as to ownership. At the second summary settlement, which was made in 1858, on the basis of proprietary right, the name of Inderjit Singh was entered in respect of the five villages now in suit, while of the remaining seven villages of the twelve originally mortgaged, six were entered in the name of the taluqdar of Bhawan Shahpur, and one (Poorah Adhar) in the names of Hubdar Singh and Sukram Singh, who claimed under a mortgage of earlier date than that to Surnam Singh. On December 11, 1858, Surnam Singh filed a petition in the Settlement Court, praying that the settlement of the whole twelve villages might be made with him; but his application appears to have been made too late, for it was ordered that " as the settlement of this village is over, and the applicant did not appear at the time the settlement was going on, and as it appears from the application and the statement of the applicant that this matter relates to a mortgage, hence it is ordered that if the applicant has any claim he must sue in the Civil Court." Surnam Singh took no proceedings in the Civil Court, and no further action was taken until the regular settlement, which was made in 1864, when both mortgagor and mortgagee claimed to be proprietors of the twelve mortgaged villages. After inquiry the assistant settlement officer, on June 3, 1864, decreed proprietary right of the five villages now in question in favour of Inderjit Singh, and directed that Raja Surnam Singhs name be entered as in possession under the mortgage bond of June 15, 1851, while Inderjit Singh was declared entitled to hold lease of the five villages according to the terms of the agreement of the same date, " which must be considered as binding on the parties." This decision was appealed against, but was eventually confirmed by the superior revenue authorities, with the result that the parties remained in the relation constituted by the mortgage bond and lease, with the exception that the mortgagee was left with five villages only, instead of twelve, as security for his advance. In 1866 and 1867 there was litigation between the mortgagor and mortgagee as to liability for certain charges upon the land, in which both parties relied on the mortgage bond and lease as constituting the contract between them; and it is admitted that, after the determination of their respective rights by the decrees of the Settlement Courts, the rent reserved by the lease and the charges allowed were paid by the respondent and his predecessor in title to the appellant and his predecessors in title. Raja Surnam Singh died on May 18, 1877, and Inderjit Singh died on May 2, 1884. The appellant and respondent are their heirs respectively. On June 25, 1894, the respondent filed the present suit to redeem the mortgage, and the sole question now between the parties is as to the terms on which redemption should be decreed—the respondent contending that he is entitled to redeem on payment of the amount originally advanced, while the appellant claims in addition interest at the rate of 2 per cent, per month upon that amount for the period during which the mortgagee was not in possession of the entire mortgaged estate up to the date of redemption. The Sub-Judge of Sultanpur, before whom the suit came in the first instance, found in favour of the appellant on this point; but his decree was reversed on appeal by the Judicial Commissioners of Oudh, who decreed the claim for the redemption of the mortgage of the villages in suit on payment of Rs.5600 only-. It appears to their Lordships that this decision is right. It appears to their Lordships that this decision is right. The only provision in the mortgage bond as to interest is in these words—" until delivery of possession of the aforesaid villages to the Raja Sahib.... I shall pay interest at the rate of 2 per cent, on the above-mentioned mortgage money," and the subsequent words, "until I pay up the sum of Rs.5600 on account of principal, with interest to the very last pie," must be read to refer to interest as previously stipulated, namely, until possession was given of the mortgaged property. The mortgage was of the class known as usufructuary mortgages, which are not uncommon in India, and in which possession of the mortgaged property is delivered to the mortgagee, who takes the rents and profits in lieu of interest or in payment of the mortgage money, or partly in lieu of interest and partly in payment of the mortgage money (Act IV. of 1882, s. 58 (d)). In this case the arrangement between the parties was completed by the execution of a lease, under which the mortgagor became the tenant of the mortgagee, and paid rent in lieu of interest. Under such a mortgage the mortgagee takes his chance of the rents and profits being greater or less than the interest which might have been reserved by the bond, and the mortgagor is entitled to redeem on repayment of the mortgage money. But it was contended that, although possession of the twelve villages originally mortgaged was given at the time of the execution of the mortgage, the reduction of their number to six in 1853 by the grant to Hanuman Persad, and to five by the settlements of 1858 and 1864, constituted a failure on the part of the mortgagor to secure to the mortgagee possession of the mortgaged property, which entitled the mortgagee to claim interest in lieu of the rents and profits of the property of which he was dispossessed. In the opinion of their Lordships, it is a sufficient answer to this argument to say that the mortgagee appears to have acquiesced in his dispossession by Hanuman Persad (as to which he probably had no alternative), and that the decisions of the Settlement Courts in 1858 and 1864 were final as to the ownership of the mortgaged property. In the opinion of their Lordships, it is a sufficient answer to this argument to say that the mortgagee appears to have acquiesced in his dispossession by Hanuman Persad (as to which he probably had no alternative), and that the decisions of the Settlement Courts in 1858 and 1864 were final as to the ownership of the mortgaged property. As the learned Judicial Commissioner observes, "the mortgagee was well aware in 1864 that he could not possibly recover possession of the villages . . . which were settled at the second summary settlement. He brought no suit then, or at any time subsequently, to recover his mortgage money, but appears to have remained satisfied for thirty-one years with the diminished security and the possession of the remaining villages." It may be added that he made no attempt to enhance the rent of the villages which were left to him, and that they constitute an ample security for the whole amount of his claim. In the judgment of the Judicial Commissioner, it is inadvertently stated that the villages now in suit are six in number, but this is erroneous. As already pointed out, at the settlements of 1858 and 1864, Inderjit Singh was confirmed in the proprietorship of five only, and the decree must be varied accordingly. Their Lordships will, therefore, humbly advise His Majesty that the decree of the Court of the Judicial Commissioner of Oudh, so far as it relates to the five villages of Hargaon, Ahed, Machheria, Bahadurpur, and Poorah Pershad-Badal, should be confirmed, and this appeal dismissed. The appellant must pay the respondents costs of this appeal.