Judgement Appeal from a decree of the High Court (February 24, 1893) setting aside a decree of the Subordinate Judge of Bareilly (December 19, 1900) and dismissing the appellants suit. The suit was brought to recover Rs. 16,425 on account of principal and simple and compound interest as stipulated in a bond dated October 6, 1896, which comprised property both of the appellant and of the respondents. It alleged the circumstances under which it was executed; and further stated, "It was, however, agreed upon between the plaintiff and the defendants that he should only be a surety, and they should be liable to pay the entire amount of the document." It alleged that Law. Rep. 33 Ind. App. 81 ( 1905- 1906) Malik Ahmad Wali Khan V. Musammat Shamsi Jahan Begam 19 the whole of the consideration money was paid to the defendants, and that "the plaintiff did not receive any portion of the said consideration, nor was it ever spent for the benefit of the plaintiff." It alleged his repayment of the amount due to the mortgagee, and claimed that "as a representative of the mortgagee the plaintiff is competent to get all the mortgagees right enforced as against the defendants." The relief prayed was the recovery of the whole amount, principal and interest payable under the bond in accordance with its terms, with a charge on the property of the respondents mortgaged by the said deed. The respondents denied receipt of the consideration money, and that the money was wanted as alleged for their brothers case or had been spent thereon. They concluded, "The plaintiff can claim only the rateable amount which he may prove to have given to the answering defendants." The Subordinate Judge decreed the suit in full, finding as a fact that the whole amount of the consideration money M was paid at the time of registration to the defendants." The High Court found that the money was " not intended to go into the pockets of either the plaintiff or the defendants; that the money was, as a matter of fact, handed over to the defendants in the presence of the Sub-registrar is true, but this was done at the instance of the plaintiff himself, who, according to the registration endorsement upon the bond, requested that the money might be paid in the presence of the defendants. It is to be observed in this endorsement it is not requested that the money should be paid to the defendants, but merely that it should be paid in their presence. From this we gather that the intention was not that it should be paid to the defendants for their own personal use, but simply that the mortgagee should have the protection of having it paid in the presence of all the mortgagors." It was of opinion that the case made by the appellant that he was to be a surety only was untrue, and that he was not entitled to the relief sought by him. At the hearing of the appeal the appellant asked for a decree for contribution towards the amount of the debt which had been discharged by him. The Court refused to grant this relief as inconsistent with the character of the suit, and as shewing indulgence to a litigant who comes into Court with a false case. Cowell, for the appellant, contended that it was proved by evidence, which the -respondents had not been called to deny, that the moneys secured by the bond had been paid to the respondents. They borrowed the money, and the appellant was by agreement between him and them a surety only, and was so regarded by the lender, the respondents again not denying the case made. Under these circumstances he was entitled as specifically prayed in his plaint. Otherwise he was, under s. 95 of the Transfer of Property Act, entitled to recover two-thirds of the amount paid by him, with interest at the stipulated rate, and to have a charge declared in his favour on the respondents interests in the mortgaged property. De Gruyther, for the respondents, contended that the agreement for suretyship was not proved by the evidence, and had not been upheld by either of the Courts below. He referred to s. 65 of the Indian Contract. Act. Sect. 95 of the Transfer of Property Act only gave a charge on redemption to a mortgagor who had obtained possession from the mortgagee on satisfying the mortgage. It should be construed strictly, and did not apply to a case where the mortgagor had redeemed but had not obtained possession. Cowell replied. Law. Rep. 33 Ind. App. Act. Sect. 95 of the Transfer of Property Act only gave a charge on redemption to a mortgagor who had obtained possession from the mortgagee on satisfying the mortgage. It should be construed strictly, and did not apply to a case where the mortgagor had redeemed but had not obtained possession. Cowell replied. Law. Rep. 33 Ind. App. 81 ( 1905- 1906) Malik Ahmad Wali Khan V. Musammat Shamsi Jahan Begam 20 The judgment of their Lordships was delivered by SIR ARTHUR WILSON. This is an appeal from a decree of the High Court of Allahabad of February 24, 1903, which set aside the decree of the Subordinate Judge of Bareilly of December 19, 1900. The plaintiff, Malik Ahmad Wali Khan, is brother of the half-blood of the two ladies who are defendants. In the year 1896 a criminal charge was pending against Sardar Wali Khan, a half-brother of the plaintiff and whole brother of the defendants; and the various members of the family took steps to procure funds for the defence of the accused man. On October 6, 1896, the plaintiff and the defendants executed a mortgage bond of the ordinary kind for the sum of Rs.10,000 in favour of Banarsi Parshad, by which the plaintiff hypothecated certain property belonging to him, and the defendants certain property belonging to them. On November 2, 1896, the plaintiff paid off the mortgage, the sum actually paid for principal and interest being Rs.10,025. On April 2, 1900, the plaintiff filed his plaint in the present case, in which he alleged that he had joined in the mortgage only as surety for his half-sisters the defendants, and claimed to recover from them the whole amount of what he had paid, with interest. The defendants in their written statements denied having been parties to the borrowing at all, but it was added, "The plaintiff can claim only the rateable amount which he may prove to have given to the answering defendants." At the trial before the Subordinate Judge the plaintiff himself gave some evidence, chiefly during his cross-examination, of an express agreement between him and his half-sisters that he should be a mere surety for them in the matter of the mortgage bond. Neither of the Courts in India appear to have given credence to that evidence, and their. Lordships think those Courts were right. Neither of the Courts in India appear to have given credence to that evidence, and their. Lordships think those Courts were right. The Subordinate Judge, however, made a decree in favour of the plaintiff on the ground that the mortgage money was shewn to have been handed to the defendants in the presence of the Registrar, and was not shewn to have been returned by them to the plaintiff. The handing of the money to the defendants was carried out by arrangement on the part of the plaintiff, and the ladies were at the time living in his house where the payment was made. The learned judges of the High Court considered that these circumstances were quite insufficient to prove that the plaintiff was a mere surety in the matter of the mortgage, and their Lordships agree in this view. It was contended, however, before the High Court, and again before their Lordships, that the plaintiff was nevertheless entitled to recover from the defendants a proportionate share, that is to say, two-thirds, of the amount he paid to the mortgagee. The High Court rejected this contention on the ground that the Court could " shew no indulgence to a litigant who comes into Court with a false case." It appears to their Lordships that the question is hardly one of indulgence, and that the plaintiff in this case ought not, by reason of his having claimed too much, to be precluded from recovering a proportionate amount of what he actually paid, to which he is undoubtedly entitled, a claim which the pleadings are wide enough to cover. It was further contended that under s. 95 of the Transfer of Property Act (IV. of 1882) there ought to be a decree giving the plaintiff a charge on the interests of the defendants in the mortgaged property. That section says that Law. Rep. 33 Ind. App. 81 ( 1905- 1906) Malik Ahmad Wali Khan V. Musammat Shamsi Jahan Begam 21 "Where one of several mortgagors redeems the mortgaged property and obtains possession thereof, he has a charge on the share of each of the other co-mortgagors in the property for his proportion of the expenses properly incurred in so redeeming and obtaining possession." That section might be so strictly construed as to limit its operation to mortgages under which possession passes, and, therefore, on redemption properly re-passes. But it seems to their Lordships more reasonable to construe the section distributively, to make the condition of obtaining possession apply only to the cases in which its fulfilment is from the nature of the mortgage possible, and in other cases to make the charge follow upon redemption. Their Lordships will, therefore, humbly advise His Majesty (1.) to discharge the decrees of the High Court and Subordinate Judge; (2.) to declare that the plaintiff is entitled to recover against the defendants two-thirds of the sum of Rs.10,025 paid by him to redeem the mortgage, with interest at 6 per cent, per annum from the date of the institution of the suit, and that he is entitled to a charge in respect thereof upon the defendants interest in the mortgaged property; (8.) to remit the case to the High Court to determine the amount due from the defendants and the time within which it should be paid by them and to give all necessary directions as to the re-transfer or realization of the mortgaged property of the defendants, and otherwise to give effect to His Majestys Order; and (4.) to order that inasmuch as the costs of the case in the two Courts in India appear to have been occasioned substantially by the untrue cases set up on the one side and on the other, no costs in either of these Courts should be given. For the same reason there will be no order as to the costs of this appeal.