JUDGMENT : STANLEY, J. The suit which has given rise to this appeal, was instituted by the plaintiff, Lala Jamna Dass, to realise the amount due to him on foot of a mortgage by sale of the mortgaged property. The property formerly belonged to one Kalka Prasad, who was the husband of the mortgagor, Musammat Lakhpati Kuer. She mortgaged the property on the 22nd of June, 1893, in favour of the plaintiff, and his son Brahma Dat, to secure the principal sum of Rs. 40,000. It is staled, and it is not denied, that upon a partition effected between the father and the son of family property, the mortgage in question fell to the lot of the father, and therefore he alone has instituted the suit. The first defendant, Pandit Ram Autar Pande, is a purchaser from Musammat Lakhpati, of the equity of redemption of the mortgaged property which was conveyed to him by a deed of the 24th of November, 1896. The second defendant, Musammat Munni Bibi, is a widow of Kalka Prasad. The third defendant, Bhagwati Prasad Dube, who has died since the institution of this suit, was a brother of Kalka Prasad and the fourth defendant, Badri Prasad Dube, is Bhagwati Prasad's son. 2. The mortgage was executed in favour of the plaintiff by Musammat Lakhpati, who claimed to be entitled to part of the property under a tamliknama executed by her husband in her favour on the 23rd of December, 1881. 3. The other portion of the mortgaged property consists of the mortgagee rights of Musammat Lakhpati in property which had been hypothecated in her favour by Bhagwati Dube. 4. The defences raised by the several defendants are shortly as follows:— The defendant, Ram Autar Pande, admitted the plaintiff's claim except in respect of interest for a certain period, for the payment of which he alleged he was not responsible. 4. The defences raised by the several defendants are shortly as follows:— The defendant, Ram Autar Pande, admitted the plaintiff's claim except in respect of interest for a certain period, for the payment of which he alleged he was not responsible. The other defendants set up the defence that (I) Kalka Prasad was not competent to execute the tamliknama in his wife's favour, inasmuch as he and his brother were the joint owners of the property and therefore he being merely a joint owner could not convey the property to his wife; (2) that the tamliknama was merely a colourable transaction; (3) that Musammat Lakhpati, even assuming the tamliknama to be a valid transaction in law, was not competent under the powers conferred by it on her to alienate the property; and (4) that there was no consideration for the mortgage. 5. The lower court held all these defenses to be without foundation with the exception of the defence that Musammat Lakhpati was not competent to alienate the property. Accordingly the court below passed a simple money decree in favour of the plaintiff for the amount due to him, but in other respects dismissed the suit. Against this decree the present appeal has been preferred. 6. Now the first question which arises for our determination is, ‘what power of transfer, if any, had Musammat Lakhpati under the tamliknama’? The document is short and simple in character. The donor, Kalka Prasad, after reciting that he was in possession as proprietor of shares in certain villages, declared that he of his own free will, transferred the shares of which he was proprietor to his wife and put her in proprietary (malikana) possession, authorising her to retain possession of the same as proprietor (malik), together with land revenue, miscellaneous items, etc. Then follows this provision. “In case of proper necessity she as my representative, is at liberty in every respect to transfer the property by sale or mortgage, either in my life-time or after my death. No objection taken by any person shall be held as fit to be allowed in this respect.” Now it is well established by the authorities that ordinarily a gift by deed or will by a Hindu to his wife does not carry the absolute interest in the absence of some indication of an intention that she should have such absolute interest in the property. Every case must depend necessarily upon the language used in the gift, whether it be a gift by deed or will, and it is for the Court to determine in each case whether or not an intention to give an absolute interest (that is, an heritable and alienable interest) can be inferred. It is true that a word such as malik may in some cases be regarded as sufficient to confer an alienable interest, and it has been so held by their Lordships of the Privy Council in the case of Lalit Mohun Singh Roy v. Chukkun Lal Roy, [1897] I.L.R., 24 Cat., 834. In the present case, however, the language of the tamliknama, so far from leading us to suppose that Kalka Prasad intended to confer an alienable interest upon his wife, seems to us to have in express language restricted her powers of alienation. The provision that in case of proper necessity she should be at liberty to transfer the property by sale or mortgage, can mean nothing else than this that the beneficiary should not transfer the property either by sale or mortgage unless a legal necessity arose for doing so. We have listened to the argument of the learned counsel who propounded a different view as to the construction of the document, but we are unable to follow him. We think that, taking this instrument as it is, the fair and reasonable construction to put upon it is that only in case of legal necessity would the, done under it have been justified in transferring the property by mortgage as she did. [Their Lordships after discussing the evidence came to the conclusion that the mortgage by Lakhpati in favour of the appellant was executed for legal necessity]. 7. The next question which arises for our determination is in regard to the mortgagee rights to Musammat Lakhpati which she derived under a mortgage executed by the defendant Bhagwati Dube and which she purported to transfer under the mortgage which is the subject-matter of this suit. It is contended that the appellant is entitled to have a decree for sale of this part of the mortgaged property. It appears to us, however, whatever may be our individual views upon this question, that it is concluded by authority. It is contended that the appellant is entitled to have a decree for sale of this part of the mortgaged property. It appears to us, however, whatever may be our individual views upon this question, that it is concluded by authority. This Court has in at least two cases decided that mortgagee rights cannot be sold under the provisions of the Transfer of Property Act. We must abide by those decisions unless and until they are overruled by higher authority. We therefore, think that the appellant's contention in this respect cannot prevail. If the rest of the mortgaged property does not prove of sufficient value to satisfy the plaintiff's mortgage in full, it will be open to him to apply in execution for a sale of the mortgagee rights in question. This Court cannot, however, make at present any order for the sale of this portion of the mortgaged property. 8. The only other question is one which affects the plaintiff and the defendant Ramautar Pande only, and that is in regard to the interest which is claimed in respect of the mortgage debt for a period extending from the date of the mortgage up to the 9th of September, 1899. It appears that at the date of the mortgage an agreement was come to whereby one Abdul Jabbar became lessee of the mortgaged property, and a provision was inserted in the mortgage deed to the effect that the interest on the mortgage which was fixed at 8 annas per cent, per mensem should be paid by the lessee, Abdul Jabbar, and that he should be responsible for the interest to the mortgagee. In the mortgage it is recited, “if the said lessee fails to pay interest, the above named mahajans (i.e., the mortgagees) shall be at liberty to realize the amount of interest from the lessee by bringing a regular suit on the said agreement, and I, the executants, shall have nothing to do with it.” It appears that by an instrument of the same date, executed by Abdul Jabbar, he agreed that during the continuance of the lease he would pay interest on the mortgage to the mortgagee, and that the mortgagee should have no concern with the mortgagor in respect of such interest. Having regard to this definite and clear agreement between the parties, it is quite manifest that the interest which accrued due on the mortgage during the subsistence of the lease, cannot be claimed by the mortgagee as against the mortgagor. The lease was surrendered on the 9th of September, 1899. Therefore the mortgagee is not entitled in this suit to recover the interest for the period from the date of the mortgage up to the 9th of September, 1899. It has been further proved that a sum of Rs. 1,200 as interest was tendered by the first defendant to the plaintiff, and that that sum was sufficient to satisfy all the interest which was at the time of tender due. This being so, the plaintiff is not entitled to further interest upon the sum so tendered, and in this respect the Court below was right. 9. The result then is that the decree of the Court below will be varied by directing a decree to be drawn up under the provisions of section 88 of the Transfer of Property Act, ordering the defendants to pay on or before the 29th of May, 1905, the amount found to be due to the plaintiff, with further interest, at the stipulated rate up to the date of payment, and in default of their doing so that the mortgaged property, other than the mortgagee rights purported to be conveyed by the mortgage by Musammat Lakhpati, be sold to satisfy the amount of the mortgage debt. The parties will pay and receive the costs both in this Court and in the Court below proportionate to failure and success.