Judgement Appeal from a decree of the Chief Court (December 21, 1908) affirming a decree of Ormond J. (May 21, 1907). The respondents, as heirs of U Shwe Pe, deceased, and his widow, Ma Shwe La, in her own right, claimed to recover possession of four parcels of land and premises with mesne profits under two deeds of absolute conveyance from the appellants dated March 4, 1903. The appellants contended that the two deeds were intended both by themselves and their alienees to take effect as transfers of existing mortgage debts of Rs.5000 and Rs.11,000 due by Ko Shwe Myaing, the owner and mortgagor of the said lands and premises. The transactions antecedent to the deeds and affecting the title to the property in suit were as follows — On May 21, 1895, Ko Shwe Myaing mortgaged the first parcel to Morison by a mortgage still in force. On November 30, 1901, Ko Shwe Myaing conveyed the first and second parcels for Rs.8500 to the appellants without disclosing the last-mentioned mortgage. In February, 1902, the third and fourth parcels were sold in execution proceedings against Ko Shwe Myaing and his wife, and a sale certificate was issued declaring the appellants to be purchasers thereof. Later than the deeds of 1903 and in December of that year the respondents received a further sum to prevent a sale of the first parcel in execution proceedings by them. On November 20, 1905, all four parcels (with other plots) were conveyed by Ko Shwe Myaing and his wife and others to the appellant Maung Kyin subject to the said mortgage of May 21, 1895, and to the mortgages for Rs.5000 and Rs.11,000. On November 20, 1905, all four parcels (with other plots) were conveyed by Ko Shwe Myaing and his wife and others to the appellant Maung Kyin subject to the said mortgage of May 21, 1895, and to the mortgages for Rs.5000 and Rs.11,000. The general nature of the evidence which the appellants sought to adduce was (1.) that as regards the deeds of March 4, 1903, the surrounding circumstances, the relations between the parties, the antecedent negotiations, and the acts and conduct of the parties shewed that, notwithstanding the form of the conveyances, the intention was to transfer mortgages; (2.) as regards the conveyance of November 30, 1901, that it was executed after negotiations for a mortgage, that Ko Shwe Myaing remained in possession of the parcels comprised therein till November 20, 1905, paying interest and instalments of principal to the knowledge of the respondents, reducing the mortgage debt to Rs.5000; (3.) as regards the certificate of February, 1902, that the appellants bought pursuant to an agreement with Ko Shwe Myaing and his wife that they should be mortgagees in respect of the purchase-money, that Ko Shwe Myaing remained in possession of the third parcel till November 20, 1905, and of the fourth parcel till March 4, 1903, paying interest and reducing the principal to Rs.l 1,000 to the knowledge of the respondents. The Courts below decreed possession and an account of mesne profits. They held that the evidence which the appellants sought to adduce could not be admitted, and relied on Mating Bin v. Ma Hiding. (( 1905) 3 Lower Burma Rulings, 100.) Bailhache, K.C., and Arnold Jolly, for the appellants, contended that the evidence was wrongly excluded. They referred to Balkishen Das v. Legge (( 1899) L. R. 27 Ind. Ap. 58; S. C. I. L. R. 22 Allah. 149 ; I. L. R. 19 Allah. 434.), which, it was said, had been followed by the decision relied upon by the Courts below. They con tended that the Indian Evidence Act did not on its true construction (see ss. 91 and 92) exclude extrinsic evidence as to the acts and conduct of the parties. 149 ; I. L. R. 19 Allah. 434.), which, it was said, had been followed by the decision relied upon by the Courts below. They con tended that the Indian Evidence Act did not on its true construction (see ss. 91 and 92) exclude extrinsic evidence as to the acts and conduct of the parties. The appellants in particular were not precluded by that Act or otherwise from proving by the admissions of all the parties that the instrument of November 30, 1901, was intended to take effect as a mortgage, or that the purchase by the appellants in February, 1902, was made pursuant to the agreement relied upon, or that the deeds of March 4, 1903, were intended to transfer existing mortgages and not to operate as conveyances. They submitted that the respondents denial that those conveyances were made to them subject to Ko Shwe Myaings equity of redemption amounted to a fraud, and there was no provision in the Evidence Act to warrant the exclusion of the proof of fraud. Reference was made to Achutaramaraju v. Subbaraju (( 1901) I. L. R. 25 Madr. 7, 12.); Preonath Shaha v. Madhu Sudan Bhuiya (( 1898) I. L. R. 25 Calc. 603.), a Full Bench ruling on which later decisions were based (see Khankar Abdur Rahman v. Ali Hafez (( 1900) I. L. R, 28 Calc. 256.); Mahomed Ali Hossein v. Nazar Ali (( 1901) I. L. R. 28 Calc. 289, 291.)); and to the earlier case of Baksu Lakshman v. Govinda Kanji(( 1880) I. L. R. 4 Bomb. 594, 605.); Indian Evidence Act, s. 115 ; Transfer of Property Act, 1882, s. 55, sub-s. 1 ; Specific Relief Act (I. of 1877), s. 26 (d) and s. 33 ; Heath 3 v. Crealock (( 1874) L. R. 10 Ch. 22, 30.); Ameer Ali and Woodroffes Law of Evidence, ed. 1902, p. 633 ; Air id V. Sabin ([ 1893] 1 Ch. 523.); Clare v. Lamb. (( 1875) L. R. 10 C. P. 334, 338, 340.) Roskill, K.C., and Justin McCarthy, for the respondents, contended that the evidence was rightly excluded. They relied upon the case in 3 Lower Burma Rulings, 100, which decided, in accordance with the case of Balkishen Das v. Legge (L. R. 27 Ind. Ap. 58; S. C.I. L. B. 22 Allah. 149; I. L. R. 19 Allah. They relied upon the case in 3 Lower Burma Rulings, 100, which decided, in accordance with the case of Balkishen Das v. Legge (L. R. 27 Ind. Ap. 58; S. C.I. L. B. 22 Allah. 149; I. L. R. 19 Allah. 434.), that the admission of extrinsic evidence to vary instruments of sale was prohibited by s. 92 of the Evidence Act, and that the decisions of the English Court of Chancery as to the admission of parol evidence to shew that deeds in the form of absolute conveyances were intended to be transfers of mortgages were not applicable in India. They accordingly contended that the deed of November 30, 1901, to which the appellants were parties being under seal, evidence to vary its terms was inadmissible and was rightly rejected. So too the certificate of February 13, 1902, was conclusive of the appellants title as purchasers, and evidence to vary that certificate and reduce the appellants title to that of mortgagees could not be admitted. The respondents were purchasers for valuable consideration without notice of the said deed and certificate being other than was represented on the face of them. The deeds of March 4, 1903, being under seal, could not be varied by extrinsic evidence. No claim had ever been made prior to this action to rectify them or any reason given why they were executed as absolute conveyances if that was contrary to the intention of the parties. They referred to Salt Lal Chand v. Indarjit (( 1900) L. R.27 Ind. Ap. 93.); Daimodhee Paik v. Kaim Taridar (( 1879) I. L. R. 5 Cale. 300); Khankar Abdur Halt man v. Ali Hafez (I. L. R. 28 Calc. 256.); and Mahomed Ali Hossein v. Nazar Ali (I. L.R 28 Calc. 289.); Indian Evidence Act, s. 92, illustration (b); Transfer of Property Act, 1882, s. 55, sub-s. 1 (//), sub-s.2, sub-s. 6 (a), and ss. 56 and 58; and to Noel v. Bewley. ((1829) 3 Sim. 103.) [LORD MACNAGHTEN. That case has been overruled see Smith v. Osborne. (( 1857) 6 H. L. C. 375, 398.)] Reference was made to In re Bridgwaters Settlement, Partridge v. Ward ([ 1910] 2 Ch. 342.) ; Smith v. Baker. (( 1842) 1 Y. & C. 223.) Bailhache, K.C., replied. The judgment of their Lordships was delivered by LORD ROBSON. 103.) [LORD MACNAGHTEN. That case has been overruled see Smith v. Osborne. (( 1857) 6 H. L. C. 375, 398.)] Reference was made to In re Bridgwaters Settlement, Partridge v. Ward ([ 1910] 2 Ch. 342.) ; Smith v. Baker. (( 1842) 1 Y. & C. 223.) Bailhache, K.C., replied. The judgment of their Lordships was delivered by LORD ROBSON. The appellants are defendants in this action which was brought by the respondents in the Chief Court of Lower Burma on its original civil side. Judgment was there given in favour of the respondents, and was affirmed on appeal to the Court on its appellate side. The action was brought to recover possession of certain parcels of land which may be conveniently referred to as the first, second, third, and fourth hereditaments. The respondents claimed under certain deeds which purported to be absolute conveyances, but which the appellants contended were meant to be, and had always in fact been, treated by all the parties concerned as mortgages only, and they tendered evidence of the acts and conduct of the parties to that effect. This evidence was excluded by the Courts below under s. 92 of the Indian Evidence Act, 1872, and the principal question arising on this appeal is whether or not that evidence was properly rejected. The respondents also claimed that the appellants were bound, under the covenants for title contained in the conveyance they had executed in favour of the respondents, to discharge a mortgage existing on the premises at the time of the conveyance. On May 21, 1895, Ko Shwe Myaing owned all the properties in question, and he mortgaged the first hereditaments (with certain other properties not in dispute) to one Morison for Rs.12,000. On November 30, 1901, he executed what purported to be an absolute conveyance of the first and second hereditaments to the appellants for the sum of Rs.8500, saying nothing in the conveyance about the mortgage to Morison. The appellants allege that this document, though in form a conveyance, was in truth a mortgage, and that possession of the property was retained by Ko Shwe Myaing, who paid various sums by way of interest on the alleged purchase-money and in part repayment of the principal sum, shewing, as they contend, that it was merely a loan. The appellants allege that this document, though in form a conveyance, was in truth a mortgage, and that possession of the property was retained by Ko Shwe Myaing, who paid various sums by way of interest on the alleged purchase-money and in part repayment of the principal sum, shewing, as they contend, that it was merely a loan. Early in 1902 the third and fourth hereditaments were sold under an order of the Court in an action by one Miller against Ko Shwe Myaing. They were purchased by the appellants for Rs.11,565, and a certificate of the sale was accordingly given by the Court to the appellants. With regard to this transaction the appellants contend that it also was in substance a mortgage and that Ko Shwe Myaing remained in possession until November 20, 1905, when he executed a deed purporting to transfer the equity of redemption in all the said properties to the appellants absolutely. On March 4, 1903, by two instruments of conveyance of that date, the appellants purported to convey the before-mentioned four sets of hereditaments to U Shwe Pe and his wife Ma Shwe La. The consideration money for the first and second hereditaments was stated as being Rs.5000, and for the third and fourth hereditaments as Rs. 11,000. The appellants allege that U Shwe Pe and Ma Shwe La knew that they, the appellants, were mortgagees merely, and that the supposed purchase-moneys for the properties were simply the amounts of the mortgage debts outstanding, they having been to some extent reduced by repayments of principal, so that the deeds in question were in truth mere transfers of mortgages, and not absolute conveyances. The deeds of March 4, 1903, were not followed by possession on the part of the respondents, except as to the fourth hereditaments, possession of which was, according to the appellants, taken by the respondents on the terms that they, the respondents, should account for the rents and profits against interest at a reduced rate in respect of the mortgage debts. In the month of December, 1903, the said U Shwe Pe, as the holder of a decree against the said Ko Shwe Myaing, took proceedings to attach the first hereditaments, and, in order to preserve them from execution, the appellant Maung Kyin, at the request of Ko Shwe Myaing, paid U Shwe Pe the amount of his execution debt. In the month of December, 1903, the said U Shwe Pe, as the holder of a decree against the said Ko Shwe Myaing, took proceedings to attach the first hereditaments, and, in order to preserve them from execution, the appellant Maung Kyin, at the request of Ko Shwe Myaing, paid U Shwe Pe the amount of his execution debt. Of course a transaction of this kind, if proved, was clearly inconsistent with the respondents contention that U Shwe Pe had become the owner of these premises by the deed of March 4, 1903, and would go to establish the contention of the appellants that deed was only a transfer of a mortgage. On May 29, 1905, Morisons mortgage was transferred to trustees on behalf of the appellants, and was expressly kept alive by the terms of the said indenture of November 20, 1905, under which Ko Shwe Myaing purported to convey the equity of redemption to the appellants absolutely. The appellants entered into possession of the first, second, and third hereditaments under the conveyance of 1905, and the respondents brought this action against them on December 20, 1905, to have it declared that they, the respondents, were absolute owners of the hereditaments in question. U Shwe Pe had in the meantime died, and the action was maintained by his widow and legal representatives. U Shwe Pe had in the meantime died, and the action was maintained by his widow and legal representatives. The appellants at the trial sought to prove—(1.) that the value of the hereditaments far exceeded the amount of the sums specified as the consideration moneys in the conveyances; (2.) that interest was paid on those moneys and that they were in part repaid, thus shewing that they were loans only; (3.) that U Shwe Pe and Ma Shwe La were well aware of this, and knew (as shewn by negotiations between themselves and Ko Shwe Myaing as well as the appellants) that the documents of November 30, 1901, and February 13, 1902, under which the appellants claimed and the benefit of which they transferred to U Shwe Pe and Ma Shwe La, were mortgages only; (4.) that possession of the hereditaments remained with the alleged vendors; and (5.) that after the alleged sale to U Shwe Pe and Ma Shwe La of March 4, 1903, U Shwe Pe himself treated the property as belonging to the alleged mortgagor, Ko Shwe Myaing, and attached a portion of it in execution of a decree against him or his wife. The evidence which the appellants thus proposed to tender was described in general terms, and their Lordships have not the advantage of dealing with it in the form of questions specifically put and argued. So far, however, as it is still pressed, it no # doubt consisted only of evidence relating to the acts and con- M duct of the parties as distinguished from evidence of oral statements and conversations constituting in themselves some agreement between them. Its object was to shew that whatever the terms of the documents may have been, none of the parties had acted on them as effecting an absolute sale, but that through a long course of mutual dealings materially affecting their respective positions they had always treated the business between them as one of loan secured by mortgage. This may give rise to important and difficult questions under s. 92 of the Indian Evidence Act, which provides that when the terms of any contract are required by law to be reduced to the form of a document (and sales or mortgages of land are, by ss. This may give rise to important and difficult questions under s. 92 of the Indian Evidence Act, which provides that when the terms of any contract are required by law to be reduced to the form of a document (and sales or mortgages of land are, by ss. 54 and 58 of the Transfer of Property Act, 1882, included among such contracts), " no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms." The case has been argued before their Lordships as though the questions in dispute turned entirely on the construction of this section as applied to the deeds of March 4, 1903, under which the respondents claim. Their Lordships, however, are of opinion that the case for the appellants disclosed a charge of fraud against the respondents in relation to matters antecedent to those deeds, on which much of the evidence tendered would certainly be material. Thus it is said that the respondents, or the persons under whom they claim, took absolute conveyances of property from the appellants with notice that they in fact belonged to a third person, namely, the alleged mortgagor, Ko Shwe Myaing. If this be so, s. 92 of the Indian Evidence Act, even if construed according to the respondents contention, will not avail them. It is applicable to an instrument " as between the parties to any such instrument or their representatives in interest," but it does not prevent proof of a fraudulent dealing with a third person’s property, or proof of notice that the property purporting to be absolutely conveyed in fact belonged to a third person who was not a party to the conveyance. The evidence of Ko Shwe Myaing is of course material and necessary on this point, and their Lordships, after giving to this case very careful consideration and without at present expressing any opinion on the construction or application of s. 92 of the Indian Evidence Act in relation to the deeds of March 4, 1903, think that the rejected evidence should be heard, subject to any objections the respondents may be advised to take. The Court will then be in a position to deal hereafter (if it should become necessary) with the admissibility of the evidence in relation not only to the deeds of March 4, 1903, but also in relation to the questions that may arise in connection with the alleged knowledge or conduct of the parties antecedent to the execution of those deeds and upon which their validity may possibly depend. The claim of the respondents to have the mortgage existing on the premises at the time of the conveyance discharged by the appellants will be dealt with, if necessary, after the case has been reheard. Their Lordships will therefore humbly advise His Majesty that this action be referred to the Chief Court of Lower Burma for a new trial. The respondents must pay the costs of this appeal. The other costs will abide the result of the new trial and will be dealt with by the Chief Court.