Judgement Consolidated Appeals from two decrees of the High Court (April 10, 1906) varying two decrees of the District Judge of Aligarh (January 2, 1904) which substantially affirmed a decree of the Subordinate Judge of Aligarh (December 23, 1902). The appeals related to a mortgage dated July 5, 1870, executed by one Gardiner to Bakhshi Nand Kishore (represented by the respondent Collector), by which he hypothecated with possession 11 biswa zamindari in mauza Kachaura and 6 biswa zamindari in mauza Agrana Jarara for Rs.5000 with interest at 12 per cent, per annum. The mortgagee duly obtained possession of the property mortgaged. One of the terms of the mortgage was the following — " If, at the recent settlement, the Government revenue which is paid at present is enhanced or decreased to some extent, I shall be entitled to and liable for it, and the mortgagee shall have nothing to do with it." Prior to the deed of 1870 the mortgagor had executed a simple mortgage of the entire 20 biswa zamindari in the said mauza Kachaura on December 21, 1868, in favour of the said Bakhshi Nand Kishore and one Dwarka Das. The mortgagees obtained a decree on the prior mortgage, and the 20 biswa in mauza Kachaura was sold in execution thereof, and was purchased by the mortgagees (decree-holders) on June 20, 1878. The proceeds of the auction sale proved insufficient to. satisfy the full decretal amount. Bakhshi Nand Kishore thus became absolute owner and possessor of the 11 biswa zamindari in mauza Kachaura jointly with Dwarka Das. But the purchasers failed to recover possession of the remaining 9 biswa in mauza Kachaura, as it was established in a subsequent litigation that the mortgagor had no proprietary interest therein. The appellants or their predecessors bought the mortgagors equity of redemption in 5J biswa out of the said 6 biswa in mauza Agrana Jarara at different times in 1873 and 1874. In 1874 the Government revenue payable for mauzas Kachaura and Agrana Jarara aforesaid was enhanced, and the mortgagee, Bakhshi Nand Kishore, paid the excess amount of revenue for mauza Kachaura, namely, Rs.895.15.9, for six years from 1873 to 1878 in spite of the term in the deed of mortgage quoted above. On July 4, 1901, the appellants sued to redeem the 5 ¼ biswa in mauza Agrana Jarara. On July 4, 1901, the appellants sued to redeem the 5 ¼ biswa in mauza Agrana Jarara. They alleged that that property was liable only for a proportionate part of the principal debt, i.e., Rs.5000, with interest, and that the remaining mortgage money was payable from the other security, namely, mauza Kachaura. The respondent pleaded that the appellants must redeem the whole 6 biswa in mauza Agrana Jarara and must pay the entire mortgage debt, inasmuch as the other security, mauza Kachaura, having been sold on June 20, 1878, under a prior mortgage, was not available for the debt. The respondent also pleaded that the plaintiffs were liable to pay the excess amount of the Government revenue mentioned above paid by the mortgagee, with interest at 12 per cent, per annum. The owners of the remaining § biswa in mauza Agrana Jarara were added as defendants by an order of the Court, but did not appear. The Subordinate Judge held that the 6 biswa in mauza Agrana alone was liable for the entire mortgage debt, and that the plaintiffs must pay the same, but that they were not liable to pay the amount of enhanced Government revenue for mauza Kachaura from 1873 to 1878. The District Judge agreed with both rulings, though he varied the amount recoverable. The High Court affirmed the judgments of the Courts below so far as they held that in order to redeem the appellants must pay the entire mortgage debt. But they held that they were also liable to pay the enhanced Government revenue above mentioned with interest at 12 per cent. The following is the material passage in their judgment to that effect—" The claim of the appellants to add to the mortgage money the amount they paid on behalf of the mortgagors as enhanced revenue is based on the principles embodied in s. 72 of the Transfer of Property Act. That section authorizes a mortgagee in possession to spend such money during the continuance of the mortgage as is necessary to preserve the property from forfeiture or sale, and authorizes the mortgagee ‘in the absence of a contract to the contrary to add the money so spent to the principal money at the rate of interest payable on the principal or where no such rate is fixed at the rate of 9 per cent, per annum. It is true that this mortgage was entered into before the Transfer of Property Act came into force. But it has been held in Girdhar Lal v. Bhola Nath (( 1888) I. L. R. 10 Allah. 611, at p. 614.) that the rules contained in s. 72 of the Transfer of Property Act only reproduce the doctrines which the Courts of Justice in India have uniformly adopted and that the section reproduces the old law. The learned advocate for the respondent to this appeal argues, however, that in the mortgage deed under consideration there was a contract to the contrary. He is unable to point out any specific stipulation which can be called a contract to the contrary, but he relies on the two provisions in the mortgage deed, one the stipulation regarding the recovery of the outlay on improvements which has been referred to above, and the other a stipulation regarding the payment by the mortgagor on redemption of arrears due by tenants, and contends that as we find these stipulations in the deed and find no express stipulation providing that the mortgagor is to repay at the time of redemption any sums paid by the mortgagee to save the property from forfeiture or sale a contract to the contrary must be inferred. Further, on the question as to whether the mortgagee was entitled to interest on these sums he referred to the fact that the bond provided that payments by the mortgagor at the time of redemption on account of outlay on wells and on account of arrears due from tenants were to carry interest at the rate of 12 per cent, per annum. It was argued that even if the mortgagees are entitled to recover the amount they paid as revenue on the mortgagors behalf, they are not entitled to interest thereon. These contentions are ingenious, but we cannot accede to them. The mortgagor made himself personally liable for payment of the enhanced revenue, and we cannot hold that the absence from the bond of any provision for the mortgagor breaking his word amounts to a contract that the mortgagee is not to recover along with the principal the sums which he had to pay in order to save the property, owing to the mortgagors default. It is true that the mortgagee, had he so chosen, might have sued the mortgagor from time to time on the personal covenant, and recovered year by yar the excess amount of land revenue which the mortgagor had contracted to pay. But we hold that he was not bound to do so. We cannot read into the mortgage deed any contract to the contrary either as regards recovery of the principal sum paid for revenue, or as regards interest thereon. For the above reasons we sustain the first plea in the memorandum of appeal, and hold that the appellants are entitled to the amount of Rs.895.15.9 which they paid for each of the years 1873 to 1878 inclusive, and that each of these sums should carry interest at the stipulated rate of 12 per cent, per annum from the beginning of the year following that on account of which it was paid up to the date at which we now fix for redemption, namely, the 10th of August, 1906." De Gruyther, K.C., and Dube, for the appellants, contended that, although Agrana alone had been held liable for the entire mortgage debt, it did not follow that the mortgagee could recover from the assignee of the mortgagor every claim which he might possibly have in respect of Kachaura. The mortgagee, even if he were empowered to pay the enhanced revenue for Kachaura for the years 1873— 1878 and to deduct the excess payment from the malikana payable in respect of Kachaura, could not at this distance of time tack on the amount to the principal mortgage debt and insist on its payment as part of the price of redeeming Agrana. It was by his own laches that he omitted to deduct it during those years, and it was an amount which affected the proportionate malikana for Kachaura and did not affect Agrana. The excess payment raised a question between the mortgagee and the holder of Kachaura and could not be added to the entire mortgage debt so as to create a lien or incumbrance on Agrana enforceable with interest at 12 per cent. Reference was made to Transfer of Property Act (IV. of 1882), ss. 72 and 76; Kamaya Naik v. Devapa Rudra Naik (( 1896) I. L. R. 22 Bomb. 440.) ; and Girdhar Lal v. Bholanath. (I. L. R. 10 Allah. Reference was made to Transfer of Property Act (IV. of 1882), ss. 72 and 76; Kamaya Naik v. Devapa Rudra Naik (( 1896) I. L. R. 22 Bomb. 440.) ; and Girdhar Lal v. Bholanath. (I. L. R. 10 Allah. 611.) Ross and A. M. Dunne, for the respondent, contended, in reference to the claim to tack on to the entire mortgage debt with which Agrana was chargeable the excess payments made fee malikana in the years 1873 to 1878 in respect of Kachaura with interest, that the judgment of the High Court was right. The ground of the claim was that the mortgagor was bound under the terms of the mortgage deed to pay the enhanced Government revenue, and that as he did not do so the mortgagee was bound to do so for the preservation of the property and to save it from being sold for arrears of revenue. It was contended that that gave him the right to tack it on to the mortgage debt and to hold the whole of the mortgaged property as security for its repayment. De Gruyther, K.C., replied, referring to Indian Trusts Act, s. 90, Indian Contract Act, s. 69, and Kinuram Das v. Mozaffer Hosain Shaha. (( 1887) I. L. R. 14 Calc. 809, 825.) The judgment of their Lordships was delivered by MR. AMEER ALI These two appeals, which have been consolidated by an order of His Majesty in Council, arise out of a suit for redemption brought by the appellants in the Court of the Subordinate Judge of Aligarh in the United Provinces. The property in suit, a 6-biswa share of mauza Agrana, was, with an 11-biswa share of mauza Kachaura, mortgaged in January, 1870, by a Mr. William L. Gardiner to one Bakhshi Nand Kishore, since deceased, for a sum of Rs.5000. Under the terms of the mortgage the mortgagee was to have possession of the mortgaged properties, realize the rents and profits, and pay therewith the Government revenue which was separately assessed on the two shares. Out of the balance he was to retain Rs.600 for the interest on the loan and pay the mortgagor a yearly sum of Rs.2400 as malikana or proprietors allowance. Out of the balance he was to retain Rs.600 for the interest on the loan and pay the mortgagor a yearly sum of Rs.2400 as malikana or proprietors allowance. In view of settlement proceedings in progress at the time, the deed further provided that " if at the recent settlement the Government revenue, which is paid at present, is enhanced or decreased to some extent, I [meaning the mortgagor] shall be entitled and liable for it, and the mortgagee shall have nothing to do with it." As a matter of fact, the revenue respectively assessed on the two properties was enhanced, in the case of Kachaura by Rs.895, in that of Agrana by Rs.469. On December 20, 1873, the equity of redemption in Agrana was acquired by the predecessor in title of the appellants, who afterwards sued and obtained a decree for the apportionment of the malikana due in respect of the 6-biswa share of Agrana. Admittedly the plaintiffs, appellants, have since received from Nand Kishore or his representatives the malikana for Agrana less the enhanced amount of the Government revenue assessed on it. William Gardiner appears to have executed in 1868 a simple mortgage of Kachaura in favour of Nand Kishore and another, who in 1878 purchased the property in execution of a decree on their mortgage. They obtained possession, however, of only 11-biswa share under a decree of the Court. In the present suit the appellants seek to redeem Agrana upon payment of a proportionate share of the Rs.5,000 ; their contention being that as Nand Kishore purchased one of the properties on which the mortgage debt was secured, it was pro tanto satis fied, and Agrana was only liable for the share legitimately chargeable on it. As Kachaura was sold and purchased by Nand Kishore in execution and part satisfaction of a decree obtained on the prior mortgage of 1868, the Courts in India properly overruled the appellants contention which has not been pressed before this Board. Agrana, therefore, is now liable for the entirety of the mortgage debt. As Kachaura was sold and purchased by Nand Kishore in execution and part satisfaction of a decree obtained on the prior mortgage of 1868, the Courts in India properly overruled the appellants contention which has not been pressed before this Board. Agrana, therefore, is now liable for the entirety of the mortgage debt. But the defendant, the Collector of Aligarh, representing the estate of Nand Kishore, among other pleas, urged that the mortgagee had from the date of the enhancement up to the time of his purchase paid the additional revenue assessed on Kachaura for which the mortgagor had made himself liable, and he was consequently entitled to tack on to the mortgage debt the amounts so paid, with interest from 1873 to 1878. This claim was disallowed by the Court of first instance, whose judgment was affirmed by the District Court. In second appeal by the defendant the High Court of Allahabad has taken a different view. It has held, upon the construction of the clause in the mortgage bond relating to the liability of the mortgagor in case of enhancement of Government revenue, that as the mortgagor did not fulfil his promise to pay the enhancement, and that consequently the mortgagee had himself to pay the enhancement to save the property from being proceeded against for arrears of Government revenue, the defendants were entitled to the amount of Rs.895.15.9 which they paid from 1873 to 1878 inclusive, with interest. The accounts taken on this basis have swelled the amount payable by the appellants in order to redeem Agrana to over Rs.30,000. Their Lordships regret they cannot concur with the learned judges of the High Court either in the construction of the clause under reference or in the view they have expressed regarding the liability for the payment of the enhanced amount of the assessment on Kachaura. The mortgage bond provided that the mortgagee should, like the mortgagor, remain in possession of the mortgaged properties during the term of the mortgage, and " pay the Government revenue of his own authority." He had thus undertaken the duty of meeting the Government demand. The provision was as much for his own safety as that of the mortgagor. The condition as to mutation of names may be taken to have been duly carried out and his name placed on the Collectors register as mortgagee in possession. The provision was as much for his own safety as that of the mortgagor. The condition as to mutation of names may be taken to have been duly carried out and his name placed on the Collectors register as mortgagee in possession. The demand for payment of Government revenue would in the ordinary course be made upon him. The malikana had been fixed on the basis of the existing revenue on the two properties; but as settlement proceedings were pending which involved a possibility of a modification in the assessment, the parties provided that in case of reduction the mortgagor should have the benefit, whilst in case of enhancement the liability should be his. In other words, if the assessment was lowered, he would receive more by way of malikana, whilst if it was enhanced he would be entitled to less. Their Lordships do not understand that the mortgagor by the clause under reference agreed to pay year by year separately the enhanced amount to meet the Government demand, or that the clause in any way altered the liability of the mortgagee in possession to pay the Government revenue assessed on the mortgaged properties. The conduct of the mortgagee in respect of Agrana may be taken as affording some indication of the meaning the parties attached to the clause. After the decree for the apportionment of the malikana in respect of Agrana, he invariably deducted the additional amount of the assessment from the sum payable to the appellants. Instead of taking the same course with regard to Kachaura, he appears to have paid to the mortgagor the whole malikana less the share payable for Agrana. In their Lordships judgment the principle on which the learned judges of the High Court have based their view of the rights of the parties is not applicable to the circumstances of the present case. It was the plain duty of the mortgagee to pay the Government revenue for both properties; in one case he took care to protect himself by deducting the enhanced revenue from the malikana; in the other he omitted to do so. Whatever the reason, he cannot be allowed now to throw the burden of his own laches on Agrana. It was the plain duty of the mortgagee to pay the Government revenue for both properties; in one case he took care to protect himself by deducting the enhanced revenue from the malikana; in the other he omitted to do so. Whatever the reason, he cannot be allowed now to throw the burden of his own laches on Agrana. In the present suit it is not the mortgagor who is seeking to redeem the property; and it seems to their Lordships that any equity that might have been invoked against him does not arise as against the plaintiffs. On the whole their Lordships are of opinion that the decree of the High Court dated April 10, 1906, in second appeal 265 of 1904 should be affirmed, and the decree of the High Court of even date in second appeal 298 of 1904 should be discharged, and in lieu thereof it should be ordered that the accounts between the parties should be taken on the lines Laid down by the District Judge in partial modification of the order of the Court of first instance ; and their Lordships will humbly advise His Majesty accordingly. Their Lordships think that, in the circumstances, the parties should bear their respective costs before this Board and in the High Court.