Judgement Consolidated Appeals from a judgment and two decrees of the High Court (April 3, 1917) modifying a judgment and decrees of the Subordinate Judge of Dacca. The suits giving rise to the appeals were instituted by the respondents, the Eastern Mortgage and Agency Co., Ld. (suing by its liquidator), against one Shyampeari Dasya, since deceased, the appellant Mati Lal Das, and others, to enforce two mortgages, the one dated September 22, 1890, executed by Mohini Mohun Das, and the other dated November 7, 1890, executed by Priyamoyi Dasya, a parda-nashin lady. The material provisions of the mortgages, which were identical in the two cases, and the circumstances of the cases appear from the judgment of their Lordships. The Subordinate Judge who tried the cases held (inter alia) that the mortgages were not void as being unconscionable; that the named managers were agents for the mortgagors and not for the mortgagees, and that the mortgagees consequently were not responsible for their mismanagement or for their default in paying the agreed interest; that for half-years in which the interest was not paid punctually the mortgagees were entitled to be paid at 9 ½ per cent.; that Priyamoyi executed the mortgage of November 7, 1890, for necessity and with a full knowledge of its terms and effect. Upon appeals the High Court affirmed the decision of the Subordinate Judge save in respect of the rate of interest. Upon that question it was held that the stipulation for interest at 9J per cent, was in the nature of a penalty, but that the mortgagees were entitled to reasonable compensation for the failure to pay the interest punctually, and that 7| per cent, interest on arrears should be allowed from the due date of payment. 1920 ; June 24. Clauson K.C. and E. B. Raikes for the appellant. De Gruyther K.C. and Dube for the respondents, the assignees of the company. July 20. The judgment of their Lordships was delivered by SIR JOHN EDGE. These are consolidated appeals from decrees of the High Court at Calcutta which modified decrees of the Subordinate Judge of Dacca, which were made in two suits which were tried together. Each suit was a suit for sale on a mortgage of immovable property and they were brought by the respondents, the Eastern Mortgage and Agency Co., Ld., through the liquidator of the company. Each suit was a suit for sale on a mortgage of immovable property and they were brought by the respondents, the Eastern Mortgage and Agency Co., Ld., through the liquidator of the company. The rights and interests of the company in the decrees under appeal have been assigned to certain persons, who were added as plaintiffs and are respondents. The other respondent was Harry Loftus Weatherall, now dead, who is represented by his widow; he was a pro forma defendant. The appeals were brought by Shyampeari Dasya and Mati Lal Das, who were defendants. Shyampeari is now dead, and is represented by the appellant Mati Lal Das. In one of the suits the mortgage sued upon was made on September 22, 1890, by Mohini Mohan Das, in favour of the company, for Rs. 250,000, and in the other suit the mortgage sued upon was made on November 7, 1890, by Priyamoyi Dasya in favour of the company for Rs. 120,000. The mortgages were by registered deeds. The mortgages were not of the same property. It was expressly stated in each mortgage that it should be read and construed as an English mortgage as defined in the Transfer of Property Act, 1882. Mohini, the mortgagor in the one case, was the brother-in-law of Priyamoyi, the mortgagor in the other case, who was the widow of Mohinis brother Lal Mohan Das. The Hindu family to which Mohini and Lal Mohan belonged was governed by the law of the Dayabhaga. Their father, to whom in his lifetime the mortgaged properties had belonged, was Madhu Sadan Das, who was a wealthy banker of Dacca. The Hindu family to which Mohini and Lal Mohan belonged was governed by the law of the Dayabhaga. Their father, to whom in his lifetime the mortgaged properties had belonged, was Madhu Sadan Das, who was a wealthy banker of Dacca. [The judgment stated in detail the facts as to the family, but for the purpose of this report it is sufficient to mention that the defendant Shyampeari was the widow of Madhu, and the defendant (appellant) Mati Lal, the only son of a deceased brother of Mohini, whose three other brothers died childless ; their Lordships said that the fact that Mati Lal was a party to the present suits would not preclude him from establishing a claim which he put forward as reversioner.] Mohini had acquired the 4 annas share in the property which was left by his father, which his brother Khetra Mohan had held, and then held that 4 annas share and his own 4 annas share, making, subject to any right of the heirs of Sashi, the 8 annas share which he mortgaged to the company on September 22, 1890, that is, all his immovable properties excepting those which are situate within the town of Dacca. The property which Priyamoyi mortgaged to the company on November 7, 1890, was the 4 annas share in the property which had come to her for her life on the death of her husband Lal Mohan. Priyamoyi died in 1902. The suits were instituted in 1912. Their Lordships will first consider the substantial questions argued on this appeal which relate to the mortgage of September 22, 1890, granted by Mohini to the company. By that mortgage the company was to apply the mortgage money of Rs.250,000 in the first place in payment of all legal costs, charges and expenses, including stamp duty and registration fees, of and incidental to the mortgage and in the next place in payment and satisfaction of a decree held by other previous mortgagee^ and the balance to Mohini. By that mortgage the company was to apply the mortgage money of Rs.250,000 in the first place in payment of all legal costs, charges and expenses, including stamp duty and registration fees, of and incidental to the mortgage and in the next place in payment and satisfaction of a decree held by other previous mortgagee^ and the balance to Mohini. Mohini covenanted with the company to pay the principal on the first day of Baisakh following with interest at 9 ½ per cent, per annum, and, if that payment was not then made, to pay interest at that rate on the first day of Baisakh and the first day of Kartick in every year ; and it was provided as follows " Provided always and it is agreed and declared that if and whenever a half-years interest for the principal sum for the time being due after the rate of 7 ½ per cent, per annum shall be paid on or before the half-yearly day hereinbefore appointed for payment of interest the mortgagees shall accept the same in lieu of and in satisfaction for the interest after the rate of 9 ½ per cent, per annum payable for that half-year under the covenant in that behalf hereinbefore contained, but this proviso is without prejudice to the right of the mortgagees to require payment of interest after the higher rate for any half-year in which interest at the lower rate shall not be paid on or before the due date for the payment thereof." The mortgage declared and agreed as follows " VII. And it is declared and agreed and the mortgagor doth hereby in manner aforesaid covenant with the mortgagees that so long as any money shall remain on the security of these presents and until the mortgagees shall enter into and take possession of the mortgaged premises (1.) such mortgaged premises shall be managed entirely (and without any interference whatever by the mortgagors) by Messrs. Harry Loft us Weatherall and George Loftus Garth so long as they shall fulfil the terms and conditions of these presents or in the event of the death resignation or dismissal of either of them by the survivor of them or failing such survivor by another duly qualified manager to be nominated by the mortgagees Provided always that any manager afterwards so appointed by the mortgagees shall be obliged if so required by the mortgagors to give proper security for the due performance of his duties and the proper mangement of the estate. (2.) The managers or manager shall have the fullest possible powers for the proper management and improvement of the said mortgaged premises (including power to appoint and dismiss all servants and to make settlements with raiyats and farmers and to give leases and to institute and conduct and defend suits and other legal proceedings) and for the realisation of the rents and profits thereof and they or he shall not be liable to dismissal except for misconduct or neglect of duty or of the terms of these presents (so far as they are to be or can be carried out by them or him) proved to the satisfaction of the mortgagees Provided always that no manager shall have power to reduce the rental of any village or villages below the present rental in order to obtain a selami or premium for so doing without the joint concurrence in writing of the mortgagees and the mortgagors And provided also that the mortgagors shall not in any event enter into any engagements or execute any documents for the sale mortgage permanent lease or other alienation of any part of the mortgaged properties without the written concurrence of the mortgagees it being the intention of the parties and being of the essence of the negotiations for the grant of the said loan that the mortgagors shall in no way interfere in the management of the said mortgaged premises. (3.) The managers or manager shall out of the rents and profits of the mortgaged premises as the same shall be received, in the first place, pay the Government revenue and all Government and municipal cesses rates rents for sikmi and putni tenures to superior landlords and all other charges payable in respect of the mortgaged premises and for the time being due or accruing due; in the second place, pay to the mortgagees interest at the times aforesaid on the said sum of Rs. 250,000 up to the 1st day of Baisakh 1299 and thereafter the annual sum of Rs. 26,250 required for the service of the said loan as aforesaid and to be applied as shown in the said second schedule hereto and in the third place pay all proper costs and charges for management and realisation of rents and auditing and scrutinising by pro fessional auditors chosen by the mortgagees of the managers accounts (if such audit and scrutiny shall be thought necessary by the mortgagees) and shall hold any surplus of the said issues and profits in trust for the mortgagors....." The mortgage also provided that the mortgagees, without prejudice to their rights as mortgagees, might in certain events appoint a receiver whose remuneration was to be paid out of the rents and profits. The loan in respect of which Mohini granted to the company the mortgage of September 22, 1890, was procured for him by Harry Loftus Weatherall and George Loftus Garth of Dacca, who will hereafter be referred to as Weatherall and Garth. It was a condition upon which the company agreed to make the advance that Mohini should appoint Weatherall and Garth as the managers. On September 22, 1890, by a deed made between Mohini of the one part and Weatherall and Garth of the other part, Mohini appointed Weatherall and Garth managers with full powers of the mortgaged property and agreed that neither of them should be dismissed or removed from the office of manager except with the written consent of the company. On September 22, 1890, by a deed made between Mohini of the one part and Weatherall and Garth of the other part, Mohini appointed Weatherall and Garth managers with full powers of the mortgaged property and agreed that neither of them should be dismissed or removed from the office of manager except with the written consent of the company. That deed contained amongst others the following provisions (The material clauses were set out in full, but for the purposes of this report it is sufficient to state their effect.) (1.) That Weatherall and Garth should be allowed commission at 15 per cent, on the gross collections to cover ail charges and expenses of management excluding the costs of litigation unless incurred in recovering the rents ; (2.) that they should apply the money coming to their hands in the first place and in the second place as provided in clause VII. (3.) of the mortgage deed, and in the third place in paying the 15 per cent, commission to themselves for management; and that any surplus left after these payments and after paying the cost of any litigation not included in the 15 per cent, should be paid as to one-half to the mortgagors and to the other half to Weatherall and Garth as remuneration in addition to their 15 per cent, commission. It has been contended in support of the appeal that the terms of the mortgage of September 22, 1890, were unconscionable and unenforceable in equity. There is no doubt that the mortgage is in some respects peculiar in its drafting and that it conferred very wide powers on Weatherall and Garth as managers, but Mohini Mohan executed the mortgage and there is nothing to suggest that he was misled and did not thoroughly understand the contract which he made, or granted the mortgage under undue influence or from pressure, and their Lordships hold that the mortgage was enforceable. It has also been contended in support of the appeal that Weatherall and Garth were the agents of the company as mortgagee and that the mortgagee through Weatherall and Garth was in possession as a mortgagee and should have been made to account as a mortgagee in possession. It was rightly found by both the Courts below that Weatherall and Garth were in possession as the agents and managers of the mortgagor and not of the mortgagee. It was rightly found by both the Courts below that Weatherall and Garth were in possession as the agents and managers of the mortgagor and not of the mortgagee. The company never was in possession, nor was it liable for any default or any waste or mismanagement or any negligence of Weatherall and Garth as managers. The company was careful not to act in any way as a mortgagee in possession. The company had a perfect right before lending its money to insist upon the mortgagor appointing managers in whom the company had confidence. The trial judge rightly held the 9 ½ per cent, interest was not penal interest. The ^decree of the High Court must be varied in the manner hereafter mentioned. Their Lordships will now consider the substantial questions which were argued and relate to the mortgage granted by Priyamoyi on November 7, 1890. That mortgage was similar in all material respects to that which Mohini had granted to the company on September 22, 1890, except that the principal sum secured by her mortgage was Rs. 120,000. It contained a similar agreement that Priyamoyi should appoint Weatherall and Garth as her managers of the property mortgaged, and she appointed them as her managers ; they were her managers and were not the managers of the company, and the company was in no way responsible for any default, or any waste or mismanagement, or any negligence of Weatherall and Garth. The company never was in possession of the mortgaged property. It is, however, necessary to consider the circumstances under which Priyamoyi granted that mortgage. She was a pardanishin lady and she was entitled only to a life interest in the mortgaged property and could not grant a mortgage of it which would be binding on the person who might be the reversioner at the time of her death unless there was legal necessity for her making the grant. In or about 1882 Lal Mohan borrowed Rs. 79,000 at interest from Rup Lal Das and had granted him a mortgage on his immovable property, and in 1888 Rup Lal Das had on his mortgage obtained a decree for sale. In or about 1882 Lal Mohan borrowed Rs. 79,000 at interest from Rup Lal Das and had granted him a mortgage on his immovable property, and in 1888 Rup Lal Das had on his mortgage obtained a decree for sale. In 1890 Priyamoyi, being unable to obtain a loan from any one, was in urgent need of money to satisfy that decree and Mohini advised her to employ Weatherall and Garth to procure for her a loan from the Eastern Mortgage and Agency Co. which had advanced the money to him in respect of which he had granted the mortgage of September 22, 1890. Weatherall and Garth obtained from the company a loan of Rs. 120,000 for Priyamoyi upon the mortgage now in question. She had to pay Weatherall and Garth a heavy commission for procuring the loan for her, and she had to agree to appoint them as her managers of the mortgaged property, otherwise they would not have procured the loan for her, and it was necessary that a loan should be procured. The Courts below have concurrently found that there was legal necessity for the granting of the mortgage, and with that finding and the reasons for it their Lordships agree. As has been said, Priyamoyi was a pardanishin lady. The Board has always held that the circumstances under which a pardanishin woman agrees to sell or mortgage property in which she is interested must be carefully examined in order to ascertain that she had independent advice and " that the lady had sufficient intelligence to understand the relevant and important matters, that she did understand them as they were explained to her, that nothing was concealed, and that there was no undue influence or misrepresentation " see Sunitabala Debi v. Dhara Sundari Debi. (( 1919) L.R. 46 I. A. 272.) In this case unfortunately Priyamoyi and her brother-in-law Mohini died before the suit was instituted. Mohini from his personal experience in his own case and in hers must have known the difficulty of procuring at the time a loan on such security as she had to offer. (( 1919) L.R. 46 I. A. 272.) In this case unfortunately Priyamoyi and her brother-in-law Mohini died before the suit was instituted. Mohini from his personal experience in his own case and in hers must have known the difficulty of procuring at the time a loan on such security as she had to offer. It was necessary for her to obtain a loan, and her maternal uncle Kunja Behari asked Mohini to procure a loan from the company for her, and Mohini said that he could induce the company to advance money on conditions on which he himself had borrowed money from the company. Priyamoyi then called in her cousin, Debendra Nath Das, who was a banker, a pleader and a zamindar, her own Dewan Bhagwan Ghose, and her uncle Kunja Behari, to advise her, and after consulting them decided to borrow money from the company on conditions similar to those on which the company had lent the Rs. 250,000 to Mohini. Debendra Nath Das and Kunja Behari were her near relations and looked after her affairs. When the draft mortgage and the draft appointment of Weatherall and Garth were prepared they were submitted on her behalf to her legal adviser Iswar Chandra, who was one of the leading pleaders at Dacca and a man of high reputation as a lawyer and as an honourable man. The drafts were in English and Iswar Chandra translated them for her and explained them to her, taking about three hours to do it. When the deeds were ready for her signature they were again explained to her by Iswar Chandra, the substance of each deed being given in Bengali, and she executed them. On this latter occasion her uncle Kunja Behari, her brother-in-law Mohini, Khetra Mohan and Ganga Narain, an old servant of hers, were present, Mohini and Khetra as then reversioners gave their consent, stating that the arrangement was necessary. Their Lordships are satisfied that Priyamoyi thoroughly understood the effect of the two deeds and that she acted under independent advice, and they agree with the concurrent findings of the Courts below. Their Lordships are satisfied that Priyamoyi thoroughly understood the effect of the two deeds and that she acted under independent advice, and they agree with the concurrent findings of the Courts below. Their Lordships do not question the soundness of the general rule on which the Board acts when there are concurrent findings of fact by the Courts below, but in this case they have thought it better to form their own independent conclusions on the question as to whether there was legal necessity and on the question as to whether Priyamoyi had independent advice and understood the effect of the two deeds to which they have referred. The mortgage of November 7, 1890, was enforceable. Weatherall and Garth were appointed managers by Priyamoyi and not by the company, their possession was not a possession by the company, and the company never was in possession and is not responsible for any defaults or negligence of Weatherall and Garth. It has not been found that the company did anything which would deprive it as a mortgagee of the right to enforce the mortgage of November 7, 1890. Priyamoyi may or may not have been well advised to execute the subsequent deeds in favour of Weatherall and Garth, but it has not been shown that the company was responsible for them or did anything to affect its rights as mortgagee under the mortgage of November 7, 1890. The High Court wrongly construed in this suit as it did in the suit on the mortgage of September 22, 1890, the agreement as to interest. The decree of the High Court in this suit must be varied in manner hereafter mentioned. Their Lordships will humbly advise His Majesty that the decrees of the High Court under appeal should be varied by decreeing that when an instalment of interest was not paid on or before the due date of payment of that instalment, the rate of interest for that instalment should be calculated at 9 ½ per centum and that the necessary corrections in the amounts for which the mortgaged properties may be sold in each case should be made and the time for payment should be extended in each suit for six months from the date of the variations of the decrees by the High Court, and that in other respects the decrees should be affirmed and the appeals dismissed. There will be no costs of the appeals.