Judgement Consolidated Appeals from a decree of the High Court (December 22, 1908) partly reversing and partly affirming a decree of the Subordinate Judge of Meerut (December 22, 1906). The suit was brought in 1905 for redemption of a mortgage dated August 25, 1880, which was in the name of the mortgagees wife. On August 29 of the same year the mortgagee under his wifes power of attorney leased the mortgaged property to the mortgagor, who thus was in possession at an annual rent of Rs. 4200, being 6 per cent, on Rs. 70,000, the amount of the mortgage money. Clause 4 of the mortgage deed, which provided by mutual consent that the mortgagee should be entitled to the profits of the mortgaged property in lieu of interest, is set out in their Lordships judgment. In June, 1881, the respondent gave up possession under his lease, and the mortgagee obtained possession under the terms of the mortgage deed. By his suit in 1905 the respondent claimed an account of the rents and profits of the mortgaged property. He produced a document dated June 11, 1881, signed by the mortgagees general attorney, which contained an undertaking by the mortgagee to apply all sums received in excess of Rs. 4200 in liquidation of the mortgage amount. He farther prayed for an account of the income derived by the mortgagee from cutting trees and other sources. The appellant pleaded that he was entitled to all the rents and profits under the terms of the mortgage deed. The Subordinate Judge upheld the appellants plea as regards the rents and profits, but gave a decree against him as regards the income derived from the cutting down of trees and sale thereof and from other sources. He held that the respondent was barred by s. 92 of the Indian Evidence Act from shewing that the real transaction between the parties was to be gathered from the said mortgage and the lease read together. He treated them as separate transactions in law. Further, as to the circumstances under which the lease was relinquished by the plaintiff he found that although " there was some agreement between them " at the time, he did not believe the letter dated June 11, 1881, was genuine. He treated them as separate transactions in law. Further, as to the circumstances under which the lease was relinquished by the plaintiff he found that although " there was some agreement between them " at the time, he did not believe the letter dated June 11, 1881, was genuine. In appeal the High Court reversed the finding as to the letter of June 11, 1881, and held that "the provision in the mortgage deed that the profits of the mortgage property should belong to the mortgagee in lieu of interest was intended to be controlled by the arrangement carried out by the lease whereby the mortgagor was left in possession of the property, he undertaking to pay out of the rents and profits annually to the mortgagee Rs. 4200"; " that the mortgage was in fact usufructuary only in name and that it was not intended at the date of its execution that the mortgagee should go into possession or receipt of the rents and profits. It was only when the mortgagor failed to pay the rent reserved by the lease that possession was taken"; "that the mortgage and lease must be read together as forming one transaction," and that being so the Court could not " give to the provision in the mortgage deed as to the acceptance of profits in lieu of interest its literal meaning" ; and that the language of this provision " must be taken to be controlled by the terms of the lease which provided that during the subsistence of the mortgage rent at the rate of Rs. 4200 a year should be payable." It was also held that the fact that the mortgagor lessee gave up possession of the property and that the lease came thereby to an end made no difference, as " it was never the intention of the parties that the mortgagee If he took possession should put into his own pockets at least Rs. 2000 a year over and above the Rs. 4200." The High Court on appeals by both parties decreed an account against the appellant of all rents and profits received by him from June 11, 1881, and after deducting Rs. 2000 a year over and above the Rs. 4200." The High Court on appeals by both parties decreed an account against the appellant of all rents and profits received by him from June 11, 1881, and after deducting Rs. 4200 a year as the interest properly payable under the mortgage of August 25, 1880, and also all proper expenditure, to give credit to the respondent for the surplus of the rents and profits and also any moneys received by him from tenants and others and to apply any surplus in payment of the amount due. De Gruyther, K.C., and OGorman, for the appellant, contended that under the terms of the mortgage deed he was entitled to appropriate the whole of the income of the mortgaged property in lieu of interest and was not liable to render the account decreed. Its terms were unambiguous and no oral or other evidence could be admitted to vary them see Act I. of 1872, s. 92. The mortgage and lease were separate transactions and should be so treated; and the lease having long ago been determined could have no present bearing on the rights and liabilities of the parties. The first Court was right on the evidence in holding that the letter of June 11, 1881, was not proved, but whether proved or not it had not been registered and was therefore inadmissible as affecting immovable property see Registration Act III. of 1877, ss. 17 and 49. It was also contended that the appellant was entitled to compensation for the loss of income which he had sustained by the withdrawal from his possession of a share in the mortgaged property which belonged to his sister, though at the time of the mortgage he had represented himself as sole owner. They referred to Act IV. of 1882, s. 65 (a). Sir Erle Richards, K.C., and Dube, for the respondent, contended that the High Court was right in reading the mortgage and lease together as parts of the same transaction. It resulted therefore that the parties intended the mortgage to be usufructuary only in name, and that it was not intended that the mortgagee should go into possession and into receipt of rents and profits freed from any liability to account in respect thereof. It resulted therefore that the parties intended the mortgage to be usufructuary only in name, and that it was not intended that the mortgagee should go into possession and into receipt of rents and profits freed from any liability to account in respect thereof. It was only when the respondent failed to pay the rent reserved by the lease that the mortgagee took possession, and he did so under the ordinary liability to account in respect of his receipts and to devote the surplus over and above the 6 per cent, interest to reduction of the mortgage amount. It was submitted also that the letter of June 11, 1881, was genuine and admissible; and reference was made to Jawdhir Singh v. Someshar Datt (( 1905) L. R. 33 Ind. App. 42.); Balkishen Das v. Legge. (( 1899) L. R. 27 Ind. App. 58.) De Gruyther, K.C., in reply. The judgment of their Lordships was delivered by LORD MACNAGHTEN. The respondents in these consolidated appeals are the representatives of the late plaintiff Saiyid Basharat Husain, now deceased, who was the owner of valuable zamindari property, subject to a mortgage dated August 25, 1880, and three further charges tacked to it. The mortgage of 1880 and these further charges are now vested in the appellant. The controversy in this case arose out of these mortgage transactions. The original mortgagee was Husain Ali Khan, who made the advances to Basharat Husain, and took the securities in the name of his wife. Basharat Husain brought a suit for redemption. His right to redeem was not disputed. The only question was as to the terms and conditions on which the decree for redemption should be made. On the part of the appellant it was maintained that the rights of the parties must be governed by the provisions of the mortgage deed of 1880, which was duly executed and duly registered. His right to redeem was not disputed. The only question was as to the terms and conditions on which the decree for redemption should be made. On the part of the appellant it was maintained that the rights of the parties must be governed by the provisions of the mortgage deed of 1880, which was duly executed and duly registered. On the other hand the mortgagor contended (1.) that the real intention of the parties was to be gathered, not from the mortgage deed, but from negotiations and conversations alleged to have taken place before the mortgage was executed ; and (2.) that, on the mortgagor relinquishing the mortgaged property which had been leased to him immediately after the date of the original mortgage, an agreement was come to between the mortgagee and the mortgagor as to the mode in which the rents and profits of the property were to be dealt with. The only evidence produced in support of this alleged agreement was a letter or rukka, neither registered nor witnessed, purporting to be dated June 11, 1881, and to be signed by the mortgagee (who died in 1886, ten years before the institution of the suit). The Subordinate Judge of Meerut, who was the trial judge, came to the conclusion that the document in question was a forgery. The learned judges of the High Court considered it genuine and gave effect to it. It is not necessary for their Lordships to determine whether the document is genuine or not. By the provisions of the Registration Act (Act III. of 1877) such a document being unregistered is inadmissible in evidence. As regards the first contention on the part of the mortgagor, which appears to have been argued at great length in the Courts below, it seems impossible to support the decision of the High Court. It is no more permissible in India than it is in this country to contradict or vary the express and unambiguous terms of a written instrument by reference to preliminary negotiations or previous conversations. The Indian Evidence Act is clear on the point. The consideration for the mortgage of 1880 was the sum of Rs. 70,000. The mortgage was expressed to be for the term of eight years. The Indian Evidence Act is clear on the point. The consideration for the mortgage of 1880 was the sum of Rs. 70,000. The mortgage was expressed to be for the term of eight years. The mortgage deed contains the following statement —" It is agreed by mutual consent of the parties to this document that the profits of the property mortgaged shall belong to the aforesaid mortgagee in lieu of the interest on the mortgage money, and I, the mortgagee, shall have no claim for mesne profits. The mortgagee also shall have no right to claim interest on the mortgage money advanced by him." The mortgagee relied on this provision. The learned judges of the High Court refused to give it any effect, holding that the mortgage was usufructuary only in form, and that the security was intended to be a simple mortgage carrying interest at the rate of 6 per cent, per annum. In coming to this conclusion the learned judges seem to have been influenced both by the preliminary negotiations to which the mortgagor and his witnesses deposed, and by the circumstance that by a deed practically contemporaneous with the mortgage the property was leased to the mortgagor for the period of the mortgage on very favourable terms at a rent which worked out at 6 per cent, per annum on the sum secured. The net profits of the property in mortgage were apparently not less than Rs. 6000. The rent reserved was only Rs. 4200. Favourable as the terms were, the mortgagor very soon fell into arrear. The mortgagee brought a suit against him, and he then gave up possession to the mortgagee. It may be that, if the mortgage deed means what it says, it would have been better for him to have fought the case out. Such is evidently the view of the High Court. But, after all, that is no concern of the Court. It was for the mortgagor to judge what was the wisest course for him to pursue. Having regard to the eagerness of wealthy money-lenders to obtain security on zamindari property, and the competition among them for a position thought so advantageous there does not seem to be anything strange in the apparently easy terms of the first mortgage transaction between the lender and the borrower. Having regard to the eagerness of wealthy money-lenders to obtain security on zamindari property, and the competition among them for a position thought so advantageous there does not seem to be anything strange in the apparently easy terms of the first mortgage transaction between the lender and the borrower. Their Lordships agree with the High Court in thinking that the mortgage and the lease were part of one and the same transaction. But there is no inconsistency between the two instruments. Nor would there have been any inconsistency if the mortgage itself had contained a provision for granting a lease on the terms upon which the lease was actually granted. One point was raised by the mortgagee before the Subordinate Judge on which he failed. It was not dealt with by the learned judges of the High Court because they were against the mortgagee on the main question. The point was raised again before this Board ; it was this Part of the property expressed to be mortgaged was withdrawn from the security in consequence of a successful claim to it by the mortgagors sister. The mortgagee claimed damages or compensation for the diminution of his security. The Subordinate Judge rejected that claim, being of opinion that the mortgagee when he took his security was aware of the circumstances of the property and the position of the mortgagors family. Their Lordships think that the Sub ordinate Judge was right. They consider that the Transfer of Property Act, Act IV. of 1882, s. 65 (a), on which reliance was placed (whatever the construction of that section may be), can have no application to the present case where the mortgage was executed before the date of the Act, though one of the further charges was subsequent to it. Their Lordships will humbly advise His Majesty that the appeals should be allowed, the orders of the High Court discharged with costs (any costs paid thereunder being repaid), and the order of the Subordinate Judge restored. The respondent will pay the costs of the appeals.