Judgement Appeal from a decree of the Judicial Commissioner (April 14, 1896) affirming a decree of the Subordinate Judge of Bahraich (Oct. 25, 1893). The suit was brought by the plaintiffs, as representatives of one Indarjit Lal, deceased, to recover from the defendant, now represented by the appellants, the villages of Ilarka Dewasiapur at the expiration of fourteen years, for which period they had been granted to him as security for his debt by a deed called a mortgage and dated July 10, 1876, which is explained and sufficiently set out in their Lordships judgment. The defendant pleaded that the mortgagor had misrepresented the nature of his interest in some of the villages, and had wrongly deprived him of possession of others. He said that the mortgagor had taken possession of two of the villages, and that others had been recovered from him by persons of whose claim he had no notice under the mortgage agreement. Both Courts found that this defence was true in fact but worthless in law, and that the defendant was bound to give up the villages unconditionally at the end of his term, being left to a suit for damages in respect of the wrongful acts complained of. The Subordinate Judges judgment was as follows— "The mortgagors sons were to retain Harrajpur-asli and Chandidaspur, paying the Government revenue only to defendant. Defendant was to hold definitely for fourteen years, and after that mortgagor was to take up possession without any accounts of the money entered in the deed, or of the profits enjoyed by the mortgagee. Mortgagor was to be responsible for claims by third persons, excepting the claims of the previous mortgagees mentioned. So far the conditions were clear and straightforward. But there is no mention in this deed that the mortgagor was to retain Dewasiapur and to recover Mohammadpur after two and a half years. There is no mention of mortgagors life tenure of Bilnapara, nor of his interest in Dikauli Patti Ratan Singh and Aghapur Badainpur as merely that of a mere mortgagee. All these villages are described as mortgagors proprietary villages. The document appears to have been carefully framed, and the omission to give a true description of the mortgagors tenure of the last three villages cannot be overlooked. All these villages are described as mortgagors proprietary villages. The document appears to have been carefully framed, and the omission to give a true description of the mortgagors tenure of the last three villages cannot be overlooked. Perhaps defendant knew that Deokali Patti Ali Hamid was a mortgage tenure, but there is no evidence of defendants previous knowledge of the mortgagors tenure in villages Bilnapara and Dikauli Ratan Singh and Aghapur Badainpur. It is true the Judicial Commissioner in two suits between the parties held it proper to presume that defendant knew that Bilnapara was a life tenure; and that he would not believe defendants assertion that he did not know that Indarjits tenure of Aghapur Badainpur was that of a mere mortgagee. But, in my humble opinion, plaintiffs were estopped from proving defendants previous knowledge of these tenures after the express declaration in the deed, dated 10th July, 1876, that all these villages were the proprietary villages of Indarjit, thus inducing defendant to believe in that tenure and acting on that belief. But in respect of Dewasiapur and Mohammadpur, plaintiffs have not proved any subsequent agreement, and it is admitted that such agreement was held invalid. The more I read the document and the subsequent litigation, the more I am inclined to think that plaintiffs have not dealt honestly with defendant. "As a fact defendant has never had possession of Dewasiapur, and plaintiffs father took possession of Mohammadpur in Rabi 1286 Fasli, and defendant has not had it for eleven and a half years of the stipulated period of fourteen years. Plaintiffs father, Indarjit, the original mortgagor, dying, the Muafi Bilnapara was resumed by the grantor in 1290 Fasli, and defendant has not had it for eight years of the stipulated period. The proprietors of Patti Dikauli Ratan Singh redeemed the mortgage of that Patti in 1290 Fasli, and defendant has not had it for eight years of the stipulated period. Similarly they redeemed Aghapur Badainpur in 1293 Fasli, and defendant has not had it for five years of the stipulated period. That there was a subsequent agreement a month after the mortgage in respect of Dewasiapur and Mohammadpur is not now denied; but when defendant sued for arrears of rent of those villages, plaintiffs opposed the claim, even asserting that the mortgage had never taken effect. That there was a subsequent agreement a month after the mortgage in respect of Dewasiapur and Mohammadpur is not now denied; but when defendant sued for arrears of rent of those villages, plaintiffs opposed the claim, even asserting that the mortgage had never taken effect. The agreement is not before me, and I can only hold, on the deed dated 10th July, 1876, that plaintiffs have retained the villages without right to do so. The decisions in the rent suits are not binding; they only shew that defendant failed to realize rents from plaintiffs—in one case because it was held that Dewasiapur had been given for maintenance, and in the other because the agreement was inadmissible in evidence. Defendant is to blame for not trying to recover these two villages in the Civil Court, and this omission on his part must go against him." He then held that under the mortgage deed the plaintiffs were entitled to get back the land at the end of the fourteen years, and that the defendants only remedy was by suits within the period of limitation. He found that the defendants had paid off all the mortgages except one for Rs.250 due to Moti Ram in respect of Chak Mirpur. He also found that the mesne profits for the two years since 1297 Fasli amounted to Rs. 1930 11a. 6p. In the result of this judgment he decreed in favour of the plaintiffs for redemption and possession of the villages, and for Rs.2180 11a. 6p. in cash. "Bearing in mind how dishonestly plaintiffs have dealt with defendants, I allow no costs to plaintiffs, and direct that each party will bear his own costs." The Appellate Court accepted the findings of fact just quoted, and upon the question of law concluded as follows— "But even if it be conceded that the appellants are not barred by the rule of res judicata from raising the question in the present suit, whether they or their predecessor in title, the mortgagee, have, or has, been prevented from realizing the mortgage money in full from the mortgaged property, by being deprived of part of the security, still the appellants have no answer to the respondents claim, unless they can shew that they are entitled to make up the deficiency by retaining possession of the rest of the security beyond the fourteen years. And this they cannot shew, because there is no such provision in the mortgage deed, nor is any such provision annexed to or imported into the contract by the law." Mayne, for the appellants, contended that this view of the law was erroneous. The respondents by their wrongful acts had deprived the appellants of the benefit of the contract of mortgage on which they sued. They had no right, therefore, to enforce against them its burdens. It is a case of a mortgagor having misrepresented the nature of his interest in some of the mortgaged properties, and having also wrongfully deprived the mortgagee of the possession of other of those properties. The contention is that a mortgagee when sued for redemption may plead those circumstances as a defence. The whole object of the transaction was to form a fund wherewith the mortgagee may in a given time repay himself the moneys he had advanced. The mortgagor had prevented its formation, and the mortgagee had not been repaid, but nevertheless the mortgagor claimed reconveyance of the properties of which possession had been given see Act IX. of 1872, s. 67; Forbes v. Ameeroonissa Begum (( 1865) 10 Moores Ind. Ap. Ca. 340, 347, 356) and Shah Mukhun Lall v. Sree Kishen Singh. (( 1868) 12 Moores Ind. Ap. Ca. 157, 186,) The following judgment was delivered by SIR JOHN BONSER. On July 10, 1876, one Indarjit Lal, representing himself to have absolute proprietary rights in certain villages, executed an instrument purporting to be a mortgage of them with possession to one Ishri Sah "for a period of fourteen years from 1284 Fasli to 1297 Fasli," by which it was provided that on the expiration of the term the mortgagor " shall come in possession of the mortgaged villages without settlement of accounts .... that on the expiration of the term .... the mortgagee shall have no power whatever in respect of the said estate .... and after the expiration of the term this mortgage deed .... shall be returned to the mortgagor without his accounting for (paying) the mortgage money secured under this document." This instrument, though it is called a mortgage, and though it will be convenient to follow the nomenclature used in the document itself and in the pleadings and judgments in the Courts below, is not a mortgage in any proper sense of the word. It is not a security for the payment of any money or for the performance of any engagement. No accounts were to be rendered or required. There was no provision for redemp- tion expressed or implied. It was simply a grant of land for a fixed term free of rent in consideration of a sum made out of past and present advances. It appears that the so-called mortgagor had not absolute proprietary rights in all the villages, and that the mortgagee did not get the full benefit purported to be given him by the mortgage. At the expiration of the fourteen years the representatives of the original mortgagee refused to give up possession of such of the mortgaged property as the mortgagee had been able to get possession of on the ground that, owing to the misrepresentations of the mortgagor, they had been unable to recoup themselves the money they had advanced, and they claimed the right to hold the property until they had so recouped themselves. The respondents, who are the representatives of the mortgagor, then brought the action out of which this appeal arises to recover the property. The Subordinate Judge made a decree in favour of the plaintiffs, but deprived them of costs on the ground that the mortgagor had not "dealt honestly" with the mortgagee, and that decree was affirmed by the Court of the Judicial Commissioner of Oudh. It was contended before their Lordships that the mortgagor, having broken his part of the contract by failing to give the mortgagee possession of the entirety of the premises comprised in the mortgage, ought not to be allowed to enforce the contract as against the mortgagee; but the answer to this contention appears to their Lordships to be that the plaintiffs are not seeking to enforce the contract; they rely on their proprietary right, and it is for the appellant to shew some stipulation, either express or implied, in the mortgage deed which deprives the plaintiffs of the right to recover possession. This the appellant cannot do, and their Lordships will therefore humbly advise His Majesty that the appeal be dismissed. As there was no appearance by the respondents, it will not be necessary to make any order as to costs.