Judgement Appeal from a judgment and decree of the High Court (February 25, 1913) reversing a judgment and decree of the Subordinate Judge of Bareilly (July 8, 1911). The suit was instituted by one Lala Chatri Lal (since deceased and represented in the appeal by the appellants) against the respondents as representatives of Jai Chand, upon a mortgage executed by the latter on November 13, 1876. The facts appear from the judgment of their Lordships. The respondents by their written statement submitted, inter alia, (1.) that the mortgage of 1876 was discharged by that of 1887; (2.) that the claim was merged in the decree of the Privy Council in 1903, affirming the decision of the High Court that the mortgage by Nandan in 1887 was not binding upon her, and that the claim was consequently barred under s. 11 and Order n., r. 2 (2.), of the Code of Civil Procedure, 1908. Issues were framed upon these pleas. The Subordinate Judge decided in favour of the appellants (plaintiffs) and made the usual mortgage decree. Upon appeal to the High Court (Richards and Bannerjee JJ.) the decision was reversed. The learned judges held that at the time of the suit the mortgagee was neither possessed of nor entitled to the possession of the mortgage sued on, and that the suit was consequently not maintainable. They further held that the mortgagee must be taken to have accepted the performance by Phul Singh of the contract sued on and that under s. 41 of the Indian Contract Act it was thereby discharged. 1916. Nov. 6. De Gruyther, K.C., and Dube, for the appellants. There was no discharge of the mortgage sued on by a substitution of a new contract under s. 62 of the Indian Contract Act, 1872. It may have been intended that Nandans mortgage of 1887 should be in discharge of the mortgage of 1876, but having repudiated her liability under it she could not so contend, and the respondents, who were joined as parties to the Privy Council appeal upon her death, can be in no better position. There was no acceptance of performance by Phul Singh, or in fact any performance by him, so as to amount to a discharge under s. 41 of that Act. Sect. There was no acceptance of performance by Phul Singh, or in fact any performance by him, so as to amount to a discharge under s. 41 of that Act. Sect. 11 and Order ii., r. 2 (2.), of the Code of Civil Procedure have no application to the facts of the case. Sir W. Garth, for the respondents. When the mortgage of 1887 was held not to be binding upon the widow, the mortgagee was put to hi3 election either to enforce against her the mortgage of 1876, or to continue to hold Phul Singh liable upon his mortgage of 1887, which affected the whole mauza. He could not rely upon both mortgages. He must be taken to have accepted the liability of Phul Singh upon the decree against the whole property as a performance of the contract by Jai Chand. Dube in reply. The decree against Phul Singh was only executed against his sixth share of the mauza. Dec. 18. The judgment of their Lordships was delivered by LORD PARKER OF WADDINGTON. This is an appeal from a decree dated February 25, 1913, of the High Court at Allahabad reversing a decree dated July 8, 1911, of the Subordinate Judge of Bareilly. The question is whether the appellants are entitled to enforce a mortgage against the respondents. The mortgage in question is dated November 13, 1876, and was executed by Jai Chand in favour of Lala Chatri Lai, the mortgaged property being a five-sixths share in the mauza Nagaria Bikrampur. The amount secured was Rs.5500. The mortgagor died leaving a widow, Musammat Nandan, and a separated nephew, Phul Singh. Under the Hindu law Musammat Nandan had a widows interest and Phul Singh had a reversion contingent on his surviving her in the property subject to the mortgage. Musammat Nandan could dispose of the property with the concurrence of Phul Singh, but Phul Singh could not, without the concurrence of Musammat Nandan, dispose of the reversion so as to defeat the interests of those who would become entitled if he died in her lifetime. Phul Singh was the owner of the remaining one-sixth share in the mauza in question. On March 6, 1879, and September 26, 1881, he mortgaged his one-sixth in favour of Lala Chatri Lal for Rs.1000 and Rs.3000 respectively, with interest. Phul Singh was the owner of the remaining one-sixth share in the mauza in question. On March 6, 1879, and September 26, 1881, he mortgaged his one-sixth in favour of Lala Chatri Lal for Rs.1000 and Rs.3000 respectively, with interest. Obviously, therefore, Lala Chatri Lal had a better security for the Rs.5500 due on Jai Chands five-sixths share than he had for the Rs.1000 and Rs.3000 due on Phul Singhs one-sixth share. On September 9 and October 30, 1887, respectively, Musammat Nandan and Phul Singh executed, or were expressed to execute, two mortgages in favour of Lala Chatri Lai. Each mortgage purported to affect the entire mauza, the first being in respect of the principal and interest due on Jai Chands mortgage of November 13, 1876, and the second being in respect of the principal and interest due on Phul Singhs mortgages of March 6, 1879, and September 26, 1881. If these mortgages were valid, Lala Chatri Lal would get the security of Jai Chands property for the indebtedness of Phul Singh and the security of Phul Singhs property for the indebtedness of Jai Chand. In the year 1896 the mortgagee instituted a suit on the basis of the two deeds of 1887. The Subordinate Judge decreed the suit in full, so that judgment went for the whole amount of the indebtedness both of Phul Singh and Jai Chand against the entire mauza. Both Phul Singh and Musammat Nandan appealed, but Phul Singh having shortly afterwards died, his appeal was abandoned by his heirs (the first three defendants in the present suit). The appeal of Musammat Nandan, however, came on for hearing and was allowed by the High Court. It was held that even if she had in fact executed the deeds of 1887 they were not binding on her. The mortgagee appealed to His Majesty in Council. Musammat Nandan died pending the appeal, and the first three defendants in the present suit, as Jai Chands heirs, were made respondents in her place. The appeal was dismissed. The real effect therefore of the deeds of 1887 must be determined on the footing that Musammat Nandan had never been made a party thereto. Musammat Nandan died pending the appeal, and the first three defendants in the present suit, as Jai Chands heirs, were made respondents in her place. The appeal was dismissed. The real effect therefore of the deeds of 1887 must be determined on the footing that Musammat Nandan had never been made a party thereto. On this footing Phul Singh must be taken to have made his own property a security of Jai Chands indebtedness and to have tried to make Jai Chands property a security for his own indebtedness—an attempt which could only succeed if he survived Musammat Nandan, which event did not happen. It follows that on Musammat Nandans death the first three defendants succeeded to Jai Chands property, subject to the mortgage of November 13, 1876, but free from any further charge purported to be created by Phul Singh. The only difficulty is that the High Court, in allowing the appeal of Musammat Nandan, left the order of the Subordinate Judge standing as against Phul Singh. But the first three defendants do not claim Jai Chands property as heirs of Phul Singh, but as heirs of Jai Chand, and it appears that after Musammat Nandans death the order of the Subordinate Judge was executed, and in their Lordships opinion rightly executed, only as against Phul Singhs own one-sixth share of the mauza, and not against Jai Chands five-sixths share. The real question is whether anything has happened to preclude the mortgagee from enforcing the mortgage of November 13, 1876, against the first three defendants as the now owners of Jai Chands five-sixths share. It is, of course, true that the mortgagees intention at the time when the two deeds of 1887 were executed was to accept a new security, extending to the whole mauza, for the indebtedness both of Jai Chand and Phul Singh in lieu (inter alia) of the security of November 13, 1876. Pursuant to this intention he appears to have handed over the mortgage of November 13, 1876, to Phul Singh. Pursuant to this intention he appears to have handed over the mortgage of November 13, 1876, to Phul Singh. But the original intention of the mortgagee was entirely frustrated by the fact that the two deeds were held not to be binding on Musammat Nandan, and it does not appear to their Lordships to be consistent with equity or good conscience that the first three defendants, having successfully maintained that the transaction embodied in the two deeds of 1887 was not binding on Musammat Nandan, and consequently did not bind them as heirs of Jai Chand, should now claim the benefit of the transaction as a release of the mortgage of November 13, 1876. In their Lordships opinion s. 41 of the Indian Contract Act, upon which the High Court relied, has no application to a case like the present. It applies only where a contract has been in fact performed by some person other than the person bound thereby. If the mortgage of November 13, 1876, be looked upon as a contract to pay money, it cannot be said to have been performed at all, for, though Phul Singhs one-sixth share was sold in the suit of 1896, the amount realized was not sufficient to meet the indebtedness of Phul Singh himself. Still less can Phul Singh be said to have performed the contract contained in the mortgage of November 13, 1876, if such mortgage be looked on as a contract to give security, for his attempt to create a security on Jai Chands property admittedly failed. In their Lordships opinion, therefore, the mortgage of November 13, 1876, was in the events which happened wholly unaffected by the mortgages of 1887. It being admitted that if the mortgage of November 13, 1876, is a subsisting mortgage it is not statute-barred, the appeal succeeds, and the order of the Subordinate Judge ought to be restored with costs here and below. Their Lordships will humbly advise His Majesty accordingly.