Ram Narain Singh v. Nawab Singh — 1945 DIGILAW 273 (ALL)

JUDGMENT Braund, J. - Two appeals are before us, the first arising out of a suit No. 12 of 1933 tried by the Second Civil Judge of Meerut, and the other arising out of a suit No. 44 of 1934 tried by the same Judge. The two suits were in the nature of cross-suits and can conveniently be dealt with in one judgment. 2. The first of these two suits, No. 12 of 1933, was a suit by five plaintiff, mortgagees for the sale of certain property of which they claimed to be first mortgagees under a mortgage of 9-2-1921. Since the priority of this mortgage of 1921 relative to another mortgage of 1922 is one of the matters in issue in these appeals, 1 shall refer to it, not as the first mortgage, but as the "1921 mortgage". The plaintiffs in the first suit claimed as first mortgagees under the 1921 mortgage. The first two defendants to the suit were the mortgagors, Sheikh Nazim Uddin and Sheikh Ala Uddin. It appears that throughout the transactions relative to the several mortgages which are in question in these proceedings, Ala Uddin executed the various mortgage instruments merely for what is technically known as "further assurance". He himself claims no actual beneficial interest in the property mortgaged; but was made a party to the various mortgage instruments for the satisfaction of the mortgagees so as to release any scintilla of beneficial interest he might have had; but it is nowhere shown that in fact he bad any such interest. The second set of defendants to the suit (apart from the Official Receiver, who does not appear at any stage to have been a proper party) were the mortgagees under a mortgage instrument executed, by the same mortgagors of (inter alia) the same property as was comprised in the 1921 mortgage. This mortgage was a mortgage of 26-8-1922, and is hereinafter referred to as the "1922 mortgage". The mortgagees under the 1922 mortgage were, therefore, made defendants to the first suit in the capacity of subsequent mortgagees. 3. The 1921 mortgage on which the plaintiffs sued was a mortgage of certain property in the village of Sikri near Ghaziabad, which is hereinafter called "the Ghaziabad property" to distinguish it from the "Meerut property" which will be mentioned presently. 3. The 1921 mortgage on which the plaintiffs sued was a mortgage of certain property in the village of Sikri near Ghaziabad, which is hereinafter called "the Ghaziabad property" to distinguish it from the "Meerut property" which will be mentioned presently. The 1921 mortgage comprised the Ghaziabad property and nothing else, and was to secure a principal sum of Rs. 30,000 with interest at 8 per cent, per annum. Under the 1921 mortgage the plaintiffs claimed a gross sum for principal and interest which, at the date of the suit, amounted to Rs. 76,986. By their plaint of 9-2-1933a very long time agothey claimed the usual relief by way of sale under a simple mortgage. And it has to be noticed that they went out of their way to plead, first that the 1922 mortgage was altogether inoperative because it was improperly executed and, secondly that, even if it was properly executed, it was only a second mortgage. This was a case of anticipating the defence. 4. The defence of the mortgagors was to admit the 1921 mortgage and to deny the 1922 mortgage in toto on the ground of defective execution. To this extent the mortgagors marched with the 1921 mortgagees, who were the plaintiffs. But neither the plaintiffs nor the mortgagors at that stage gave any particulars of the defective execution, nor specifically pleaded anything about defective registration. In view, however, of the subsequent suit which brought the issues out more clearly, that is not perhaps now a serious matter. The mortgagors then went on to say that the interest was excessive. That is not in issue in this appeal, finally they said that the mortgagor, Ala Uddin, had no interest in the Ghaziabad property and was not actually a mortgagor at all. That seems to have been true, except for the further assurance given by him. 5. The defence of the 1922 mortgagees was that, after a formal denial of the 1921 mortgage altogether, they said that they were in any case prior mortgagees by virtue of the 1922 mortgage itself, which they asserted to have been properly executed and registered in all respects. 5. The defence of the 1922 mortgagees was that, after a formal denial of the 1921 mortgage altogether, they said that they were in any case prior mortgagees by virtue of the 1922 mortgage itself, which they asserted to have been properly executed and registered in all respects. They based this on an allegation that the 1922 mortgage was only a renewal of an earlier mortgage of 12th February 1916 (hereinafter called "the 1916 mortgage") and that, by virtue of the well-known principle of keeping an earlier mortgage alive as a shield against an intermediate encumbrancer, they were entitled to priority in respect of the 1922 mortgage over the 1921 mortgage. If that failed, then the 1922 mortgagees claimed that they were still entitled to fall back on the 1916 mortgage itself and to claim priority over the 1921 mortgage to the extent of all principal and interest still outstanding under that mortgage. This involved certain questions of limitation, which are more clearly brought out in the second of the two suits. 6. That was the substance of Suit No. 12 of 1933. The other suitsuit No. 44 of 1934was in the nature of a cross-suit that the real issues are more clearly exemplified. The 1922 mortgagees are the plaintiffs in the second suit, and (apart from the Official Receiver who was again made a party) they made the mortgagors defendants, together with the 1921 mortgagees, claiming as against the latter that they were only puisne encumbrancers. The plaintiffs in this suit specifically pleaded the 1916 mortgage. It was a mortgage by which the mortgagors had charged the Ghaziabad property to the 1922 mortgagees with the repayment of a sum by way of principal and interest which at the date of the 1922 mortgage amounted to Rs. 1,11,553. The 1922 mortgage included the Ghaziabad property, together with one bigha of land at Meerut, which. I shall call the "Meerut property". A good deal of the controversy of fact in these appeals revolves about this one bigha of Meerut property and I shall explain in a moment the rival stories of how it came to be included. Meanwhile, there is no doubt that the 1922 mortgage was in form actually a renewal of the 1916 mortgage, a further advance of Rs. 14,647 being taken making up the total principal sum of Rs. 1,26,200 secured by the 1922 mortgage. Meanwhile, there is no doubt that the 1922 mortgage was in form actually a renewal of the 1916 mortgage, a further advance of Rs. 14,647 being taken making up the total principal sum of Rs. 1,26,200 secured by the 1922 mortgage. This, at the date of the second suit in 1934, amounted to a sum for principal and interest of Rs. 2,40,354, which was accordingly the sum in respect of which the 1922 mortgagees sued in the second suit. They pleaded that, by virtue of the renewal of the 1916 mortgage, the 1921 mortgagees were puisne mortgagees in respect of the whole of this sum, but that, if for any reason the 1922 mortgage as such failed, they were still entitled to fall back and to sue exclusively on the 1916 mortgage which they had specifically pleaded for the purpose. And, for that purpose, they said that the 1916 mortgage was saved from limitation, both as against the mortgagors and as against the 1921 mortgagees, by the acknowledgment of it given by the mortgagors to the plaintiffs in the 1922 mortgage instrument. The 1922 mortgagees accordingly asked for a decree, first, on the 1922 mortgage itself, and, in the alternative, on the 1916 mortgage. 7. The defences to this second suit bring out more clearly the actual issues with which we have been called upon to deal in these appeals. The mortgagor, Nazim Uddin, for whom Sir Tej Bahadur appears, in para. 16 of his written statement first comprehensively challenges "the execution and completion" of the 1922 mortgage, saying that it was altogether defective as regards both execution and attestation. He then goes on in paras. 17 and 18 to say that the registration of the 1922 mortgage was bad, in order to destroy it as a mortgage on that ground altogether. It is in this connexion that the Meerut property, which, it will be remembered, was added to the 1922 mortgage for the first time, becomes material. What is actually alleged by Nizam Uddin is that, as originally drawn and executed, the 1922 mortgage instrument never comprised the Meerut property at all. It was, he says, confined solely to the Ghaziabad property. The parities first made an attempt on 26th August 1922 to get the mortgage registered at Ghaziabad. What is actually alleged by Nizam Uddin is that, as originally drawn and executed, the 1922 mortgage instrument never comprised the Meerut property at all. It was, he says, confined solely to the Ghaziabad property. The parities first made an attempt on 26th August 1922 to get the mortgage registered at Ghaziabad. The story, as expanded in detail in evidence, is that the officials, or some of them, of the Ghaziabad Registry, seeing that the matter was an important one, demanded five hundred rupees for the privilege of registration. Not being willing to pay this, the mortgagees then suggested that they should return to Meerut, where they lived, and try to get it registered at the Registry at Meerut. For this purpose, it was necessary to add some property within the jurisdiction of the Meerut Registry to the mortgage in order to found a right to registration there. It was, therefore, proposed (at the suggestion. I think, of the mortgagees) that Nazim Uddin should add one bigha of his property at Meerut to the 1922 mortgage, not with any intention actually of mortgaging it, but merely so as to "dress it up" as a document capable of being registered at Meerut. This, of course, if this story is the right one, was long after execution on 26th August. The whole scheme, on this version, was devised for the purpose of deceiving the Meerut Registrar into accepting the registration at his Registry. If that were so, then the contention would be first that there was in reality no mortgage of any Meerut property; and, secondly, that the marginal addition of the Meerut property to the already executed document of 1922 (without any fresh attestation) was ineffective to mortgage the Meerut property at all having regard to S. 59, T.P. Act, 1882, and therefore, that there was, at the moment of presentation of the document to the Meerut Registrar on 12th September, no mortgage of the Meerut property within the meaning of the Transfer of Property Act, 1882. It would follow from this, if it is true, that the document which the Meerut Registrar was tricked into registering in his Registry was actually a document which mortgaged no property within his jurisdiction. Hence under s. 28, Registration Act, he had no jurisdiction to register it and consequently there has been no lawful registration of the 1922 mortgage. It would follow from this, if it is true, that the document which the Meerut Registrar was tricked into registering in his Registry was actually a document which mortgaged no property within his jurisdiction. Hence under s. 28, Registration Act, he had no jurisdiction to register it and consequently there has been no lawful registration of the 1922 mortgage. That, as we understand it, is the mortgagors' version of the facts and it is a contention in which, of course, the 1921 mortgagees support him. For that reason the mortgagors say that the 1922 mortgage, as a mortgage must go; and they go further and assert that, in that event, nothing is left in favour of the 1922 mortgagees, since they cannot rely on the 1916 mortgage, both because according to them it was wiped out of existence by the 1922 transaction altogether, and secondly because it is in any case time barred. They deny the acknowledgment because they say that, once the 1922 mortgage has been disposed of on the ground of defective registration, it can be relied on for no purpose. And, in any case, they alleged that the 1922 transaction completely absorbed the 1916 mortgage which no longer existed as between mortgagor and mortgagee and cannot now be revived as a second string to the bow of the 1922 mortgage. I have put that in my own language, but I think it substantially represents the ground on which the mortgagors rest their defence. They say, of course, that Ala Uddin was never a mortgagor at all. 8. As to the first mortgagees, they support the mortgagors on the facts and on their contention that the 1922 mortgage was never validly registered and also that it completely ousted the 1916 mortgage so that the 1922 mortgagees cannot fall back on it. But the 1921 mortgagees go further, as they are bound to do, and say in addition that, even if the 1916 mortgage did survive for the benefit of the 1922 mortgagees by virtue of an acknowledgment given in the 1922 document or otherwise, then no such acknowledgment could prejudice the right of the 1921 mortgagees, who took their title before it was given, in any defence against the 1916 mortgage that they would otherwise be able to raise under the Indian Limitation Act. They were no parties to the acknowledgment of 1922, assuming it was given by the mortgagors, and, therefore, they say that, having derived their title before it was given, it was not open to the 1916 mortgagors by any acknowledgment of theirs to prejudice their rights in respect of limitation. 9. Those are, generally speaking, the issues raised on the pleadings. Having given the mortgagors' version of the facts relating to registration, it is right at this point, for the purpose of making the issues clear, to give the opposite version of the facts in connection with registration which has been advanced by the 1922 mortgagees They say that it is quite untrue that the Meerut property was added to the 1922 mortgage after execution and that the whole story of the demand by the office of the Register at Ghaziabad for a sum of money before registration is entirely untrue. What they allege to have happened is that it was all along agreed in the negotiations for the 1922 mortgage that a piece of Meerut property should be added to the security. Then, on the day of execution by Nazim Uddin on the 26th August at Meerut, when the engrossment of the 1922 mortgage was made, it was found that by mistake the piece of Meerut property had been omitted by the draft man. It was thenin the presence of the parties and of the witnesses and before executionadded in the margin and signed marginally by the mortgagor Nazim Uddin. It was, therefore, they say, actually in the document at the moment of execution and attestation. I should add that the document was executed by Nazim Uddin at Meerut on 26th August and by Ala Uddin two days later at Mussoorie; but we are primarily concerned with what happened at Meerut. I shall discuss these facts more fully later when I come, to deal with them and I have merely set out the version of the 1922 mortgagees at this stage in order to make the issues clearer. 10. Disentangling this somewhat complicated story it appears to have raised the following questions. 11. The learned Civil Judge first considered the question of fact with reference to what happened in respect to the insertion of the Meerut property in the 1922 mortgage. He came to the conclusion that the mortgagors' story was the more probable one, and he accepted it. Disentangling this somewhat complicated story it appears to have raised the following questions. 11. The learned Civil Judge first considered the question of fact with reference to what happened in respect to the insertion of the Meerut property in the 1922 mortgage. He came to the conclusion that the mortgagors' story was the more probable one, and he accepted it. He held as a fact that when the instrument was executed by Nazim Uddin and attested at Meerut on 26th August it did not include the Meerut property. This was added later - on the 12th Septemberafter execution and attestation and the addition, though signed by Nazim Uddin, was never attested. It follows that, when the 1922 mortgage was executed by Ala Uddin and attested at Mussoorie on the 28th August, it equally did not contain the Meerut property. That issue of fact is, therefore, the first matter we have to deal with in these appeals. 12. If we come to the conclusion that the learned Civil Judge's view of the facts was the right one, then it remains for us to consider what the result was. The learned Judge held that in consequence of what had happened there was no lawful registration and that, therefore, the 1922 mortgage failed as a mortgage. He, therefore, disposed of the 1922 mortgagees claim on the 1922 mortgage on that ground, both as against the mortgagors and of course as against the 1921 mortgagees. He then went on to consider whether, having failed on the 1922 mortgage, the 1922 mortgagees were entitled to fall back on to the 1916 mortgage. He thought that they were entitled to fall back on it; but he held that they were entitled to fall back on to it only as against the mortgagors since the acknowledgment given by the mortgagors in the 1922 mortgage could not avail as against the 1921 mortgagees who acquired their title prior to the giving of it. 13. The issues, therefore, with which we are concerned in this appeal are as to which, if either version of the facts as to the execution attestation and registration of the 1922 mortgage, is the right one ? It the mortgagors' version is the true one, then what is the effect on the mortgage of 1922? 13. The issues, therefore, with which we are concerned in this appeal are as to which, if either version of the facts as to the execution attestation and registration of the 1922 mortgage, is the right one ? It the mortgagors' version is the true one, then what is the effect on the mortgage of 1922? If the mortgage of 1922 should fail as a mortgage for want of registration, can the 1922 mortgagees, as between themselves and the mortgagees (apart altogether from any question of protecting themselves from the 1921 mortgage) fall back on to the 1916 mortgage: In other words, can the doctrine against the merger (for want of a better term) serve to keep alive an earlier incumbrance where (a) a later incumbrance has replaced it and (b) the later incumbrance itself fails because of some inherent defect? In short, is the doctrine available only as a shield against an intermediate) claim, or is it available directly for the benefit of the mortgagee against his mortgagor ? It is on this question that Sir Tej Bahadur Sapru on behalf of the mortgagors principally relies to rid the mortgagors of the 1922 mortgage. There remains the question of limitation. Assuming that the 1922 mortgagees have a right to fall back on the 1916 mortgage, then a question of priority remains as between the 1922 mortgagees and the 1921 mortgagees and also as between the 1922 mortgagees and the mortgagors. This depends partly on the construction of the 1922 mortgage instrument, and, so far as it is a question of priority as between the 1922 mortgagees and the 1921 mortgagees, it also depends on the law applicable to a case in which a mortgagor gives to a subsequent mortgagee an acknowledgment after he has created an intermediate mortgage. 14. I shall deal first with the question of fact. The issue to which the question of fact relates is really the issue whether the 1922 mortgage instrument was ever effectively registered so as to become "a registered instrument" within the meaning of s. 59, Transfer of Property Act, 1882. I have already set out above the version of the mortgagors and the 1921 mortgagees, who are the respondents in both appeals. I have already set out above the version of the mortgagors and the 1921 mortgagees, who are the respondents in both appeals. It is to the effect that, when the 1922 mortgage was executed and attested at Meerut on the 26th August by Nazim Uddin and at Mussoorie on 28th August by Ala Uddin, the one bigha of Meerut property was not included in it. That they say, was not added until the 12th September, and then only by way of a marginal addition signed by Nazim Uddin and unattested. They say, moreover, that it was so added without any intention of ever forming part of the mortgage security, but merely for the purpose of pretending before the Registrar that the deed was a deed mortgaging some Meerut property, so as to bring it for registration purposes within his jurisdiction. The appellants' version is quite a different one. They have said that it was throughout the intention to add one bigha of land at Meerut to the security and that the circumstance that it was added as a marginal addition was due solely to a clerical mistake in the engrossment and that it was added by the engrossing "scribe" prior to execution and attestation. It should perhaps have been said earlier that there appear at the foot of the instrument two notes.... "Note 1" and "Note 2". Each of these notes is signed by Nazim Uddin. "Note 1" is immaterial for our present purpose. But "Note 2" refers to the addition of the Meerut property in the margin on p. 2 of the deed. It is said by the appellants that both these notes were on the document before its execution by Nazim Uddin on 26th August. They are each signed by Nazim Uddin. Then follows a third signature of Nazim Uddin, being his general execution of the whole instrument and finally there appear the various signatures of the attesting witnesses. This document will have to be examined more closely. Somewhat surprisingly the learned Civil Judge did not send for the original of the 1922 mortgage instrument. They are each signed by Nazim Uddin. Then follows a third signature of Nazim Uddin, being his general execution of the whole instrument and finally there appear the various signatures of the attesting witnesses. This document will have to be examined more closely. Somewhat surprisingly the learned Civil Judge did not send for the original of the 1922 mortgage instrument. Since the issue of fact relates to a matter of bow a particular document was executed and what was the condition of the document itself at the time of execution, we have ourselves thought it necessary to have the actual instrument before us and we have accordingly by consent of the parties had it produced. It has afforded us some assistance. 15. The appellants have produced three witnesses in evidence of the condition of the 1922 mortgage instrument at the moment of its execution by Nazim Uddin at Meerut on 26-8-1922. The first is Joti Swarup who was himself one of the second mortgagees. He gives evidence to the effect that, during the negotiations for the 1922 mortgage, it had been deliberately agreed between him and Nazim Uddin that the one bigha of the Meerut property should be included in the new security. And the reason he assigns for this is that he wanted one bigha of land at Meerut in order to build a house fin it for himself. It strikes me as a somewhat curious way of carrying out the transaction. If he had wanted to buy a piece of land from Nazim Uddin at Meerut, the simplest course would have been for him to have bought at outright and taken a transfer of it. Moreover, one might have expected in that case to have found some specified bigha of land chosen by Joti Swarup. Nazim Uddin owned, I believe, some forty big has of land at Meerut and I should have thought that a man wishing to build a house for himself would indicate that particular bigha of land which he chose as its site. Joti Swarup then went on in his evidence to describe how this bigha of land had been at first omitted in the engrossment and was subsequently added, together with Note no. 2, before execution and before attestation. Joti Swarup then went on in his evidence to describe how this bigha of land had been at first omitted in the engrossment and was subsequently added, together with Note no. 2, before execution and before attestation. He denies the events which are said to have taken place at Ghaziabad on the occasion of the attempted registration and says that the story of the subsequent inclusion of the Meerut property for the purpose only of obtaining a registration at Meerut is entirely untrue. The other witnesses are attesting witnesses; Chaudhri Ganga Sahai and Dalip Singh, each being one of the attesting witnesses at Meerut on the 26th August. Chaudhri Ganga Sahai is emphatic that the addition of the one bigha of land had been made before the 1922 mortgage was read out preparatory to execution and he professes to have remembered seeing Nazim Uddin sign it and also the two notes. The possible comment that can be made an this gentleman's evidence is that he is slightly over emphatic, having regard to the fact that he was recollecting in detail events which, from his point of view, were of no great importance, which occurred fifteen years earlier. The other witness, Dalip Singh, who also claims to have attested Nazim Uddin'a signature at Meerut, went to the other extreme and was only prepared to say, after a good deal of hesitation, that he recollected that the addition of the Meerut property was on the document when it was executed and attested. The same comment applies to this gentleman's evidence that these events took place a long time ago; but he is less emphatic about it than Chaudhri Ganga Sahai. On the other side, there was the evidence of Nazim Uddin himself in support of his own version of the story and he produced another witness, who was his mukhtar-e-am, to support it. That was the position as far as the actual evidence went; but, as I have said, the learned Civil Judge had not the document itself before him. This was not an easy question of fact for the Judge to solve. But in a careful judgment he came to the conclusion that Nazim Uddin's version was substantially right and he gave four reasons for so thinking. This was not an easy question of fact for the Judge to solve. But in a careful judgment he came to the conclusion that Nazim Uddin's version was substantially right and he gave four reasons for so thinking. His first reason was that he found slight discrepancies between Joti Swarup's evidence and that of Chaudhri Ganga Sahai and Dalip Singh; secondly he felt that, if the Meerut property was actually in the 1922 mortgage when it was executed it was unlikely, seeing that Meerut was much the more convenient place for registration, that they would ever have gone to Ghaziabad to get it registered. Thirdly, he found difficulty in believing the original omission in the draft, and, fourthly, he attached significance to the circumstances that, when the document was sent to Mussoorie on the 28th August to be executed by Ala Uddin, he was apparently never asked to sign the addition in the margin as well as Nazim, Uddin. These reasons given by the learned Judge for his view are all reasons which merit consideration and it is not lightly that I should be prepared even in a first appeal, where admittedly the facts are open, to substitute a different judgment of my own for that of the Judge who saw and heard the witnesses. But to my mind the matter is concluded in favour of the learned Judge's view by the document itself. We have sent for it and it is demonstrably clear from it that the figure "1" before the word "note", together with the whole of the second note, have been added after the test of Note 1 had been written. There is a marked difference in the ink employed. I have no doubt that the whole of the second note was written after the test of Note 1 and that the figure "1" was at the same time added to the word "Note" for. the first time. That in itself is not conclusive; but it is at least as consistent with the respondents' version as with the appellants'. But what turns the scale in favour of the respondents, in my view, is the fact that both Note 1 and Note 2 should have been signed by Nazim Uddin. the first time. That in itself is not conclusive; but it is at least as consistent with the respondents' version as with the appellants'. But what turns the scale in favour of the respondents, in my view, is the fact that both Note 1 and Note 2 should have been signed by Nazim Uddin. If both the notes were on the document before the execution of it by Nazim Uddin, I should certainly not have expected to have found that Nazim Uddin should have signed each note. I should have expected him, at the most, to have attached his signature once, and that after the second note. After alt one does not sign each paragraph of a document when executing it. I can see no greater reason for signing each note. Looking at the evidence as a whole, I have come to the conclusion that the view of the facts taken by the learned Judge was a correct view and I certainly should not be disposed to come to any other conclusion myself in appeal. 16. It has been suggested by Mr. Pathak on behalf of the appellants that we ought to be satisfied with neither version of these facts and that, therefore, we ought to leave the document to speak for itself. I am not satisfied that in view of the evidence which is available, we should be entitled to take that course. I shall, therefore, accept it that the 1922 mortgage, when it was executed and attested at Meerut on 26th August 1922, by Nazim Uddin, and at Mussoorie on 28th August by Ala Uddin, did not contain the Meerut property. 17. It remains to be seen what the effect of this was. In my judgment, the effect can be simply stated. It was that, when the instrument was presented to the Meerut Registrar for registration on 12th September, it was an instrument which according to the requirements of S. 59, T.P. Act, 1882, mortgaged only the Ghaziabad property. Under S. 28, Registration Act, it was not a document capable of being registered at Meerut and it was not, therefore, legally registered there. It is, therefore, an unregistered mortgage, and as a mortgage it fails. I see no escape from that conclusion. No question of intention arises. Under S. 28, Registration Act, it was not a document capable of being registered at Meerut and it was not, therefore, legally registered there. It is, therefore, an unregistered mortgage, and as a mortgage it fails. I see no escape from that conclusion. No question of intention arises. On the facts of this case I should be unable to agree that in fact there was any intention that the Meerut property, which was relatively small in value, should be added to the security. No one has suggested that the security was inadequate. Indeed, there was on the story which I accept an express agreement to the contrary. But even if there had been an intention that the Meerut property should actually be mortgaged, it would have been quite immaterial, since what is required by s. 59, T.P. Act 1882, is not an intention to mortgage, but a formal compliance with the section in respect (among other things) of registration. That is where it has failed in this case and, as I see it, that has nothing to do with intention. 18. That clears the ground for consideration of the remaining, and more difficult, questions arising out of these appeals. At this point we know that the 1922 mortgage has failed as a mortgage. At that stage Sir Tej Bahadur Sapru on behalf of the mortgagors says this. He is not interested in any question of priority as between the 1922 mortgagees, and the 1921 mortgagees. He is interested in getting rid, not merely of the 1922 mortgage as such, but also of any recourse by the 1922 mortgagees by survival to the 1916 mortgage on the failure of the 1922 mortgage. And for that purpose he puts his case in this way He says, that, as between the mortgagors and the 1922 mortgagees, the 1922 mortgage, when it was executed, whether it failed for lack of registration or not, totally absorbed and extinguished the 1916 mortgage. This must not be confused with any question of priority affecting the 1921 mortgage. And for that purpose he puts his case in this way He says, that, as between the mortgagors and the 1922 mortgagees, the 1922 mortgage, when it was executed, whether it failed for lack of registration or not, totally absorbed and extinguished the 1916 mortgage. This must not be confused with any question of priority affecting the 1921 mortgage. Sir Tej says that on the execution of the 1922 mortgage there was a merger of the 1916 mortgage and that, on the failure of the former, it is not now open to the 1922 mortgagees to fall back on the 1916 mortgagenot for the purpose of protecting themselves against an intermediate mortgagebut for the purpose of attacking, and claiming directly against, the mortgagors. In support of this view, Sir Tej Bahadur has drawn our attention to many of those authorities, both English and Indian, which explain the well known Adams v. Angell (1877) 5 Ch. D. 634 : 46 L.J. Ch. 352 principles of keeping alive a subsequent mortgage as a 'shield' against an intervening encumbrancer. Those principles have been developed out of English equity and were accepted in India and are now embodied in the Transfer of Property Act. It is very true that, so far as the relations of a mortgagor and successive mortgagees are concerned, the question that invariably arises is in respect of the keeping alive of an original mortgage as a protection or 'shield' against an intervening encumbrancer, whether the case arises out of a subsequent mortgage in 'renewal' of an earlier one or of a purchase of an equity of redemption. The case of the discharge of an encumbrance by a tenant for life raises rather different considerations. No case has been referred to in which the doctrine of keeping alive an earlier security has, in the absence of some express provision, been inferred on the ground of intention directly as between mortgagor and mortgagee without reference to some intermediate incumbrance to be guarded against. Indeed, in Sir Dinshah Mulla's book on the Transfer of Property Act, 1882 (Edn. 2) at p. 662, he says in so many words: The only case in which it is to the benefit of a mortgagee or charge-holder to keep the incumbrance I alive is when it is necessary as a defence against a sub-sequent incumbrance. 19. Indeed, in Sir Dinshah Mulla's book on the Transfer of Property Act, 1882 (Edn. 2) at p. 662, he says in so many words: The only case in which it is to the benefit of a mortgagee or charge-holder to keep the incumbrance I alive is when it is necessary as a defence against a sub-sequent incumbrance. 19. Moreover even in cases where, on the principles on which this doctrine and s. 101, T.P. Act, 1882, are founded, the presence of an intention to keep alive an earlier mortgage has to be proved or disproved, it is, I think, only the intention to effect some purpose or to guard against some contingency which can be foreseen at the date of the subsequent mortgage that is material, and not any threat to the mortgage which may perhaps arise later against which it' may suit his purpose to be protected, see per Lord Lindley in Liguidation Estates Purchase Co. v. Willoughby (1896) 1 Ch. 726 : 65 L.J. Ch. 486 : 74 L.T. 228 44 W.R. 612 at pp. 734/735. A fortiori it would seem difficult to suppose, therefore, that the doctrine would apply in a case of a failure of the subsequent mortgage through lack of registration. 20. Though, therefore, I should be inclined to agree with Sir Tej Bahadur Sapru's argument that there is no room for the 'keeping alive' of the 1916 mortgage in the present case on the principles on which prior mortgages are sometimes kept alive as a 'shield', yet on two different grounds I think that the 1922 mortgagees must, in this case, be held to be able to have recourse to it. 21. The first ground is that, in my opinion when the 1922 mortgage is closely examined, it is round that it expressly kept the 1916 mortgage alive. It was in fact never destroyed. 22. The two material clauses of the 1922 document in this respect are cls. 11 and 13. Clause 11 reads : This document has been executed in place of the previous document, therefore the creditors shall have all the usual rights to the property hypothecated under this document which they had under the document dated 12th and registered on the 15th February 1916. 23. 11 and 13. Clause 11 reads : This document has been executed in place of the previous document, therefore the creditors shall have all the usual rights to the property hypothecated under this document which they had under the document dated 12th and registered on the 15th February 1916. 23. Clause 13 reads : The creditors shall always have power to realise their money jointly or severally whenever and in whatever way they like, by enforcement of the prior hypothecation lien and by Bale of the hypothecated property as also other moveable and immoveable property and from the person of executants No. 1. I shall have no objection thereto. 24. Clause 13 seems to be a more or less common form clause since it also figures verbatim in the 1916 mortgage. We have been at some pains to verify the translation of it with the original and there seems no doubt that the translation of the clause as given at page 72 of the record of this appeal is substantially correct. Construing it as best I can, no other meaning can be given to cl. 13 than that it is an express clause keeping alive the 1916 mortgage. The words "by enforcement of the prior hypothecation lien" can refer only to the 1916 mortgage. It says in effect that notwithstanding the 1922 mortgage, the mortgagees shall always have a right to enforce the 1916 mortgage. That is nothing else than expressly keeping it alive. For this reason alone there is no necessity to examine the principles of keeping a subsequent mortgage alive as a 'shield' against an intervening mortgage, since in this case there is by express contract between the parties a provision for keeping it alive for the purpose of being enforced directly as against the mortgagors. 2. (1896) 1 Ch. 726 : 65 L. J. Ch. 486 : 74 L. T. 228 44 W. E. 612. 25. That, I think, would be enough to dispose of this contention on behalf of the mortgagors. But there is another ground on which the same result can be reached. 2. (1896) 1 Ch. 726 : 65 L. J. Ch. 486 : 74 L. T. 228 44 W. E. 612. 25. That, I think, would be enough to dispose of this contention on behalf of the mortgagors. But there is another ground on which the same result can be reached. Even assuming that the 1916 mortgage were absorbed in the 1922 mortgage as between the mortgagor and the mortgagees, even then on the authorities it would become a case, not, it is true, of "keeping alive" the 1916 mortgage, but of it being "revived" for the benefit of the 1922 mortgagees on the failure of the subsequent security. There is a world of difference between a doctrine or statute which "keeps alive" a prior security and a doctrine which acknowledges that it was already dead, but, in certain circumstances and for certain purposes, allows it to be "revived". The matter appears to me to be concluded in favour of the 1922 mortgagees by an authority of the Judicial Committee of the Privy Council arising out of a case in this Court, (16) 3 AIR 1916 P.C. 68 : 39 All. 178 : 44 I.A. 60 : 39 I.C. 343 (P.C.), Harchandi Lal v. Sheoraj Singh. In that case, a certain mortgagor and his nephew owned a mauza in the proportions of 5/6th by the mortgagor and 1/6th by his nephew. By a mortgage of 1876, the mortgagor mortgaged his 5/6th share. He then died leaving a widow. In 1879 and 1881 the nephew mortgaged his 1/6th of the same property to the same person who was mortgagee of the 1876 mortgage. In 1887 the widow of the original 1876 mortgagor and the nephew combined to execute two mortgages over the same property purporting to compromise the entire beneficial interest in it to the same mortgagee. The purpose of this transaction, was, first, to pay off the principal and interest due on the 1876 mortgage, and, secondly, to pay off the principal and interest due on the nephew's mortgages of 1879 and 1881. In due course, the mortgagee in 1896 brought a suit to enforce his mortgage of 1881 and in that suit it was eventually held on appeal that the mortgage of 1887 was not binding on the widow. In due course, the mortgagee in 1896 brought a suit to enforce his mortgage of 1881 and in that suit it was eventually held on appeal that the mortgage of 1887 was not binding on the widow. The question then arose whether, on the failure of the 1887 mortgage as far as the widow's 5/6th share was concerned, the mortgagee could fall back on the 1876 mortgage which it had been intended to replace. The Board held that the mortgagee could fall back on the 1876 mortgage on the ground that, the intention of the "Consolidating" transaction of 1887 having been entirely frustrated by the circumstance that it had transpired the widow had no power to mortgage her 5/6th share, it would be altogether inequitable to deprives the mortgagee of the benefit of the prior mortgage on 1876 which the mortgage of 1887 had been intended to replace and tow the extinction of which it had been the, consideration. Their Lordships said: It is, of course, true that the mortgagee's 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 13-11-1876. Pursuant to this intention, he appears to have handed over the mortgage of 13-11-1876 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 Mt. Nandan, and it does not appear to their Lordships to be consistent with equity or good conscience that they first three defendants, having successfully maintained that the transaction embodied in the two deeds of 1887 was not binding on Mt. Nandan, and consequently did not bind them as heirs of Jai Chand, should now claim the benefit of such transaction as a release of the mortgage of 13-11-1876. 26. In my judgment, the circumstances of that case are in substance indistinguishable from those before us. The principle really is that a person cannot claim from a Court of Equity a benefit without accepting the just consequences of the relief he asks for. 26. In my judgment, the circumstances of that case are in substance indistinguishable from those before us. The principle really is that a person cannot claim from a Court of Equity a benefit without accepting the just consequences of the relief he asks for. Where, therefore, a transaction is, at the instance and for the benefit of a party, declared for some reason to have failed, equity will not give him the benefit of that failure, unless he also assumes the logical burden of its consequences. In the case before us the mortgagors have themselves set up the failure of the 1922 transaction as a mortgage on the ground of want of registration. Their contention in that respect has been upheld. The purpose of the 1922 mortgage was admittedly to give to the 1922 mortgagees a fresh security in place of, and over the same property as was comprised in, the 1916 mortgage. If, therefore, the 1922 mortgage fails, the whole purpose of the transaction is as much defeated as was the case in the transaction before the Privy Council. On the same principle as their Lordships of the Judicial Committee have applied, it would, there, fore, be contrary to equity and good conscience if the 1922 mortgagors in this case were now allowed to say that they are entitled to take the benefit of the setting aside of the 1922 mortgage without recognising the revived existence of the 1916 mortgage, which it had throughout been the intention of the parties that it should replace. This is expressed in a passage of Sir Dinshah Mulla's work on the Transfer of Property Act, 1882, by saying that, "if the higher security fails, the lower revives. If a mortgagee purchases the property mortgaged and the sale deed fails for want of registration ... he can still fall back on the mortgage." This is something very different from the doctrine of 'keeping alive' the 1916 mortgage as a 'shield' against an intervening incumbrance. It is the very reverse of it, since it recognises that the 1916 mortgage did cease to exist, but is brought back to life because it has been ascertained that the consideration for which it wag destroyed has failed. It is the very reverse of it, since it recognises that the 1916 mortgage did cease to exist, but is brought back to life because it has been ascertained that the consideration for which it wag destroyed has failed. It is a well settled principle that where parsons enter into a transaction which, if followed, would have the effect, by implication or expressly, of rescinding a former contract and thereby inducing them to alter their relative position, and it turns out that the transaction cannot operate as the parties intended, then their rights under the former transaction remain unaffected. See (1866) 1 Ex. 117, Noble v. Ward, (1867) 2 Ex. 135 : 36 L.J. Ex. 91 : 15 L.T. 672 : 15 W.R. 520, Noble v. Ward; ('16) 3 AIR 1916 Cal. 136 : 43 Cal. 790 : 35 I.C. 305, Mathura Mohan v. Ram Kumar at p. 882 and (1864) 2 Bom. H.C.R. 198, Hira Chand v. Bhaskar Ababhat Shende. 26A. It has been suggested that this principle should not operate in this case since the 1922 mortgagees were themselves parties to the deception of the Meerut Registrar which brought about the failure of the 1922 mortgage. But, on the facts as I have found them, the mortgagors themselves were as much parties to it as the 1922 mortgagees, and I can see no reason why, as between them, the principle acted on by the Judicial Committee should not be applied. They were in pari delicto and I cannot perceive any good reason why the mortgagors should now be heard to rely on the fraud in which they joined if not which they themselves actually contrived to say that for their benefit the other parties to that scheme should be deprived of their security. Nor can I see why, if the 1916 mortgage does revive and if it is still available notwithstanding the law of limitation, which is the only remaining matter to be discussed, it should not carry in favour of the 1922 mortgagees its full interest up to the time of the suit. 27. It has been held, therefore, that on the facts the 1922 mortgage failed as a mortgage; but that, as between the 1922 mortgagees and the mortgagors, the effect of that failure was to "revive" the 1916 mortgage. 27. It has been held, therefore, that on the facts the 1922 mortgage failed as a mortgage; but that, as between the 1922 mortgagees and the mortgagors, the effect of that failure was to "revive" the 1916 mortgage. The 1916 mortgage has been expressly pleaded by the 1922 mortgagees and a cause of action has been independently framed on it. That brings me, therefore, to the only remaining question in these appealsthe question of limitation. 28. Sir Tej Bahadur Sapru on behalf of the mortgagors goes, as he has to go, the whole length of saying that there is no acknowledgment at all in the 1922 mortgage instrument which satisfies the provisions of S. 19, Limitation Act. The references to the 1916 mortgage in the 1922 mortgage instrument are these. In para. 8 it is expressed that the Ghaziabad property . . . already stands pledged and hypothecated to the creditors under the document dated 12th and registered on 15-2-1910, in respect of the amount whereof this document has been executed... 29. By para, 11 of the same document it is said that it . . . has been executed in place of the previous document, therefore the creditors shall have all the usual rights to the property hypothecated under this document which they had under the document dated 12th and registered en 15-2-1916. 30. And by para. 13 it is said that: The creditors shall always have the power to realise their money jointly and severally whenever and in whatever way they like, by enforcement of the prior hypothecation lien . . . 31. The mortgagors argue that this amounts to no "acknowledgment of the liability" and still less an "admission of liability". Even if it were an acknowledgment of liability it is suggested that it is an acknowledgment of a liability, not under the old mortgage of 1910, but only under the new mortgage of 1922 and that it is not enough to admit the liability under the new document alone. There must, it is said, be an admission of liability under the old document. We have been referred to the well known Indian, case in (06) 33 Cal. 1047 : 2 Nag. L.R. 130 : 33 I.A. 165 (P.C.), Mani Ram v. Seth Rupchand before the Judicial Committee of the Privy Council. There must, it is said, be an admission of liability under the old document. We have been referred to the well known Indian, case in (06) 33 Cal. 1047 : 2 Nag. L.R. 130 : 33 I.A. 165 (P.C.), Mani Ram v. Seth Rupchand before the Judicial Committee of the Privy Council. The Board there explains S. 19, Limitation Act, in the sense that it requires only a definite admission of liability. They say that the requirement of an "acknowledgment" of liability under English law is, if anything, more stringent than the requirements of the Indian Limitation Act. "What we have, therefore, to see is whether in the document of 1922 there is an acknowledgment of liability to pay, not merely what had then become due under the 1922 mortgage instrument, but what, assuming it were ever put in issue, was secured under the 1916 mortgage. I have already held that the 1916 mortgage was revived. The issue, therefore, now is whether anything is due under that instrument and we have to look for Borne acknowledgment that the mortgagors did owe money under it at the date of the 1922 document. This seems to me a matter of pure construction of the 1916 mortgage itself. Looking at the passages I have referred to above, I cannot doubt that they constitute an admission of liability under the 1916 mortgage. The first passage says that the Ghaziabad property was mortgaged by the 1916 mortgage "in respect of the amount whereof this document has been executed." That is an admission that, at the moment prior to the execution of the 1922 mortgage, the money secured by it was secured by the 1916 mortgage. In cl. 11 there is an admission that at the moment of the execution of the 1922 mortgage there was a subsisting mortgage of 1916, since otherwise the former could not have been executed "in place of" the latter. And by cl. 13 there is again a clear implied admission that money was then due under the 1916 mortgage. It seems to me that it is extremely difficult in face of these passages to suggest that there was in the 1922 document no admission of liability under the 1916 instrument at the moment it was executed. And by cl. 13 there is again a clear implied admission that money was then due under the 1916 mortgage. It seems to me that it is extremely difficult in face of these passages to suggest that there was in the 1922 document no admission of liability under the 1916 instrument at the moment it was executed. That being so, the second mortgagees' suit, so far as it is a suit based on the 1916 mortgage, was not, in my opinion, barred by the Limitation Act. 32. There remains then the final question of the effect of S. 19, Limitation Act, as between the 1922 mortgagees and the 1921 mortgagees. This question I propose to deal with shortly, because it is, in my opinion, concluded by authority. The point at issue is whether the acknowledgment, which has been held to have been given by the 1916 mortgagors to the 1922 mortgagees in the 1922 instrument, was effective as an acknowledgment under S. 19, Limitation Act, to start a fresh period of limitation in favour of the 1922 mortgagees, not merely as against the 1916 mortgagors themselves, but as against the 1921 mortgagees who derived their title from the mortgagors, prior to the acknowledgment, out of the equity of redemption on the 1916 mortgage. That the 1922 mortgage instrument was capable of being used as acknowledgment, notwithstanding that it had failed as a mortgage, is clear from S. 49, Registration Act, and the authorities on the point decided under it. 33. In my judgment the answer to this question is contained in the well-known judgment of the late Sir Ashutosh Mukerji in ('05) 1 C.L.J. 337, Surjiram Marwari v. Barhamdeo Prasad which was sealed with the approval of the Judicial Committee of the Privy Council in the case from our own Court in AIR 1945 67 (Privy Council) founding himself on the reasoning of Lord Westbury in (1862) 1 De. J. & S. 122 : 32 L.J. Ch. J. & S. 122 : 32 L.J. Ch. 219 : 7 L.T. (N.S.) 812 : 11 W.R. 386, Bolding v. Lane held that, on the proper construction of S. 19, Limitation Act, it did not allow a mortgagor, after he had created a second mortgage and thus ceased to represent the entirety of the equity of redemption, to compromise the position of his own second mortgagee in point of limitation by an acknowledgment given behind his back in favour of the first mortgagee. The case with which Sir Asutosh Mukerji was dealing was also a case of successive mortgagees, in which the mortgagor, by creating the second mortgage, had not parted with his entire interest in the mortgaged property. He retained his ultimate equity of redemption. It is true that in 1942 A.L.J. 64810 the Judicial Committee was dealing with a case, not of successive mortgages, but of a purchase, by a first mortgagee outright of an equity of redemption and their Lordships, therefore, confined their decision in terms to a case in which the mortgagor had given an acknowledgment after he had parted with his entire interest in the equity of redemption. But the reasoning is general; and, indeed, they expressly said that they were "prepared to adopt the reasoning of that very learned Judge"-meaning Sir Asutosh Mukerji"in the present case." I can see no reason why, once a construction of the actual words of s. 19, Limitation Act, has been reached which limits the effect of an acknowledgment given by a mortgagor after he has parted with his entire equity of redemption by sale, exactly the same construction should not apply to a case in which be has merely carved a further mortgage out of his equity of redemption. To allow him to derogate from his own grant by defeating his own mortgage by an acknowledgment would in that case also, in my opinion, be doing the very thing which Lord Westbury described as "taking away the right of one man by the act of another" and would involve a consequence "inconsistent with natural justice." I am aware that a different view was at one time taken in some other Courts of which an example was the view in 1932 expressed in the Madras Bench case in P.C. Muthu Chettiyar Vs. Muthuswami Ayyangar, AIR 1932 Mad 516 But even in that Court in a later Full Bench case in Pavayi and Others Vs. Palanivela Goundan and Others, AIR 1940 Mad 470 Pavayi v. Palanivela Goondan in dealing with the case of a mortgagee who had parted with his whole interest in the equity of redemption by transfer, the learned Chief Justice of the Madras High Court observed that .... In certain of the cases to which I have referred the mortgagor retained an interest in part of the mortgaged property sold, but I do not consider this makes any difference in principle. 34. In my view it makes no difference in principle. That also has been the still more recently expressed conclusion of a Full Bench of the Nagpur High Court in AIR 1944 163 (Nagpur) 35. In spite of this, Mr. Pathak on behalf of the 1922 mortgagees has pressed us with a very recent decision of this year of a Full Bench of five Judges of our own High Court in 15. Munna Lal and Others Vs. Chunni Lal, AIR 1945 All 239 Munna Lal v. Chunni Lal This Full Bench reference arose out of an appeal from a decision of my own and I should, therefore, desire to discuss it no further than is necessary. Primarily it raised a question of subrogation involving a consideration by the Court of the language and effect of S. 92, Transfer of Property Act, 1882. But there was undoubtedly involved in the case the question from the point of view of limitation of the effect of a subsequent mortgagee acquiring the "rights and powers" of a prior mortgagee by subrogation under that section. It was held by three of the five learned Judges who composed the Full Bench that the effect of a subsequent mortgagee acquiring by subrogation under the. section "all the rights and powers" of a prior mortgagee was to start a new period of limitation in his favour from the date of the subsequent transaction. It was held by three of the five learned Judges who composed the Full Bench that the effect of a subsequent mortgagee acquiring by subrogation under the. section "all the rights and powers" of a prior mortgagee was to start a new period of limitation in his favour from the date of the subsequent transaction. Of the three learned Judges who took that view one of them at least used language which made it quite clear that he had no intention of disregarding the doctrine which the Judicial Committee of the Privy Council had approved in AIR 1945 67 (Privy Council) Bank of Upper India Ltd. v. Skinner (ubi supra) in its application to the case of an acknowledgment, as opposed to a case merely of subrogation. Allsop J. in his judgment made this quite clear. He said: .... Our attention has been drawn to the fact that it is now settled that a mortgagor cannot extend limitation against a puisne mortgagee by an acknowledgment alone and it must be admitted that the equities are some what complicated but we are to decide the question before us not on general principles but on the meaning we impute to S. 92. . . 36. As I read that passage, the learned Judge appears to have recognised that the law was settled in a case of acknowledgment, as opposed to a case of subrogation and he very carefully rested his decision on S. 92, Transfer of Property Act, alone. The two learned dissenting Judges also both accepted the authority of Sir Asutosh Mukerji's reasoning, as approved by the Judicial Committee of the Privy Council in 1942 AIR 1945 67 (Privy Council) Bank of Upper India Ltd. v. Skinner as conclusive of the view that a mortgagor cannot, under s. 19, Limitation Act, give an acknowledgment so as to affect behind his hack the rights of a subsequent mortgagee acquired before that acknowledgment is given. For these reasons I cannot regard this Full Bench case as in any way affecting the law relating to the effect of an acknowledgment in such a case as that involved in these appeals. No authority has been produced before us which would lend me the courage, even if I thought it right to do so, (which I do not), to depart from the reasoning of Lord Westbury in (1862-63) 1 De. No authority has been produced before us which would lend me the courage, even if I thought it right to do so, (which I do not), to depart from the reasoning of Lord Westbury in (1862-63) 1 De. J. & S. 122 : 32 L.J. Ch. 219 : 7 L.T. (N.S.) 812 : 11 W.R. 386, Bolding v. Lane (ubi supra) in its application to the case of an acknowledgment where the mortgagor has retained an interest in the form of an equity of redemption in the mortgaged property. 37. The result, therefore, of these appeals is that on the facts the mortgage of 1922 failed as a mortgage for want of registration. The result of that was to 'revive' the 1916 mortgage in favour of the 1922 mortgagees. There was a sufficient acknowledgment in the 1922 mortgage instrument to save the cause of action under the 1916 mortgage; and that cause of action the 1922 mortgagees have expressly pleaded. But, as between the 1922 mortgagees and the 1921 mortgagees, no acknowledgment given by the mortgagors in the 1922 mortgage would be effective to displace the accrued rights of the 1921 mortgagees in respect of limitation. For these reasons, in my opinion, the learned Civil Judge was right in giving the 1922 mortgagees a decree in suit No. 12 of 1934 on the 1916 mortgage, subject only to the principal, interest and costs secured to the 1921 mortgagees under their mortgage of 1921. The Appeal No. 468 of 1937 must, therefore, in my opinion, be dismissed with costs. For the same reasons the Appeal No. 197 of 1938 should also be dismissed with costs. The cross-objections of the mortgagors in both appeals must be dismissed with costs. There will be the usual set-off as to costs. Wali Ullah J. 38.I agree. 39. By the CourtThe Appeal NO. 468 of 1937 must be dismissed with costs. For the same reasons the Appeal No. 197 of 1938 should also be dismissed with costs. The cross objections of the mortgagors in both appeals must be dismissed with costs. There will be the usual set-off as to costs.