JUDGMENT 1. On 14th March 1941, the plaintiff appellant instituted the suit in which this appeal arises for recovery of his dues under three mortgages executed by Jnanendra Nath Guha. The mortgages have been marked as Exs. 1, 2 and 3. As the mortgagee and the mortgagor of all the three bonds were the same one suit was brought in view of the provisions of S. 67, T. P. Act. His claim in respect of the second mortgage (EX. 2) was decreed in full and a very small amount was disallowed from his claim on the third mortgage bond (Ex. 3). Except the question relating to the amount and number of instalments no further question arises in the appeal in respect of those two mortgages. The more important question that has been raised in the appeal relates to his claim on the first mortgage, Ex. 1. That mortgage was executed on 11th September 1927. The principal was stated to be Rs. 11,440 on which simple interest was payable at the rate of 6 3/4 per cent. per annum. The claim on this mortgage was laid at Rs. 28,858-11-0, but the learned Subordinate Judge has made a decree for Rs. 10,863 taking the principal of the loan to be Rs. 5500 only. He allowed the debtor to pay the amount of the decree passed on this mortgage as well as on the other two mortgages in thirty equal annual instalments. The plaintiff has preferred this appeal. The points urged in support of the appeal are: (1) that the principal of the loan in respect of the mortgage Ex. 1 ought to be taken to be Rs. 11,440 as stated in the mortgage bond and not Rs. 5500 and (2) that the number of instalments ought to be reduced. 2. The facts bearing on the first question are as follows: On 13th December 1912 (=28th Aughrahayan 1319 B. S.) the mortgagor Jnanendra Nath Guha borrowed the sum of Rs. 5500 from the mortgagee at simple interest at the rate of 5 1/4 per annum. For securing the loan he mortgaged sixteen annas share in two kharija taluks, Nos. 4261 and 4262 (Ex. 13). It is admitted that the whole of said sum of Rs. 5500 was advanced by the lender to the borrower. In 1914 the account on this mortgage (Ex. 13) was adjusted and the sum of Rs. For securing the loan he mortgaged sixteen annas share in two kharija taluks, Nos. 4261 and 4262 (Ex. 13). It is admitted that the whole of said sum of Rs. 5500 was advanced by the lender to the borrower. In 1914 the account on this mortgage (Ex. 13) was adjusted and the sum of Rs. 6261 was found due. To secure that amount the borrower executed a mortgage, Ex. 13 (a), in favour of the lender on 5th November 1914 (= 19th Kartik 1321 B. S.) Simple interest was payable at 63/4 per cent. per annum. The properties mortgaged were thirteen annas share of the aforesaid two kharija taluks. In 1927 accounts were adjusted on this mortgage (Ex. 13 A) and the sum of Rs. 11,440 was found due. To secure the said amount the mortgage in suit, Ex. 1, was executed on 11th September 1927. The rate of interest and the security were the same as in the mortgage, Ex. 13 (a), of 5th November 1914. 3. The learned Subordinate Judge has held that the transaction represented by the mortgage in suit namely Ex. 1, dated 11th September 1927 cannot be reopened in view of proviso (i) to S. 36, sub-s (1), Bengal Money lenders Act, 1940. Still he has taken the principal of the loan to be Rs. 5500 the amount which was actually advanced to the borrower on 13th December 1912. This is wrong in view of observations of the Judicial Committee in 72 I. A. 156 Renula Bose v. Rai Manmatha Nath Bose ('45) 32 A. I. R. 1945 P. C. 108 : 72 I. A. 156 : 222 I. C. 1 (P. C.). If the mortgage transaction represented by Ex. 1 cannot be reopened by reason of provisions of that proviso the principal of the loan must, for the purposes of S. 30 of the Act, be taken to be what has been treated as the principal of the loan in that instrument: 47 C. W. N. 578 Nripendra Chandra Saha Chowdhury v. Md. Abbas Ali ('44) 31 A. I. R. 1944 Cal. 113 : 47 C. W. N. 678; 48 C. W. N. 496 Birbhadra Chandra v. Surendra Prosad ('44) 31 A. I. R. 1944 Cal. 303 : 48 C. W. N. 496. The point for consideration therefore is whether the transactions represented by mortgages dated 11th September 1927 (Ex. Abbas Ali ('44) 31 A. I. R. 1944 Cal. 113 : 47 C. W. N. 678; 48 C. W. N. 496 Birbhadra Chandra v. Surendra Prosad ('44) 31 A. I. R. 1944 Cal. 303 : 48 C. W. N. 496. The point for consideration therefore is whether the transactions represented by mortgages dated 11th September 1927 (Ex. 1) and 5th November 1914 (Ex. 13 A) can be re-opened. Both those transactions were beyond twelve years of the suit. The sole question is did they "create new obligations after closing previous dealings." 4. An adjustment of accounts agreed upon by both the lender and the borrower may in a sense be taken to close previous dealings between the parties but that is not enough to attract the proviso; for that by itself does not create a new obligation. The subsequent alteration of any one of the terms of the original bond on which the loan was advanced in a sense may be taken to create a new obligation, for the contract so altered would certainly be different from the original one. But that by itself is not sufficient to attract the proviso. The proviso lays down two conditions namely (1) the closing of previous dealings between the lender and the borrower and (2) creation of a new obligation and both those conditions must be the result of the transactions in order that it may be protected against reopening by the force of that proviso. That proviso, however, does not mean that that transaction must be an independent one, an absolutely new one unconnected with a prior transaction, for as the proviso creates an exception to the power of reopening, there must in every case be some connection between that transaction and the prior transaction to which the Court will have to fall back if the former is reopened. The idea of reopening necessarily implies falling back upon a prior transaction, the connecting link between the two being the self same loan. As the transaction which is to be protected against reopening must fulfil both the requirements we have noticed above, it must have the effect of completely substituting the prior obligation to which the borrower desires to fall back upon by means of the reopening. This is what has been laid down in 48 C. W. N. 625 Jadu Nath Roy v. Jagat Prosanna ('44) 31 A. I. R. 1944 Cal. This is what has been laid down in 48 C. W. N. 625 Jadu Nath Roy v. Jagat Prosanna ('44) 31 A. I. R. 1944 Cal. 320 : 220 I. C. 495 : 48 C. W. N. 625. As we were parties to that judgment and the point has been reargued before us in some detail we felt it necessary to state in some detail the reason for the observation we made in that case, namely, that the phrase purporting to create new obligations used in the proviso covers only the case where the original obligation undertaken by the borrower at the time of loan is completely superseded and a substituted obligation created. 5. This is also the interpretation given to the proviso by another Division Bench in First Appeal No. 73 of 1942 Nripendra Kumar Roy Choudhury v. Santosh Kumar Dass First Appeal No. 73 of 1942, Decided on 1st February 1946. Mukherjea J. in delivering the judgment of the Court observed that the language used by the Legislature undoubtedly contemplates a case where the adjustment or agreement extinguishes the previous obligation and replaces it by another or substituted obligations within the meaning of S. 62, Contract Act. 6. In that case he further observed that it seems to us to be settled law that whether a new mortgage bond is to be taken to be in lieu of or in supersession of an old one depends entirely upon the intention of the parties, and that intention has to be gathered from the facts and circumstances of each case. 7. The learned advocate for the appellants questions the soundness of these observations and submits that the question does not depend upon the intention of the parties but upon the legal effect of the later deed. The effect of a transaction embodied in document which is the creation of the parties themselves must be determined by the terms of the instrument. On an ultimate analysis the legal effect depends primarily upon the intention of the parties to the instrument. For the legal effect of an instrument involves two factors, namely (1) what is the agreement between them and (2) how far the law would recognise or give effect to their agreement. On an ultimate analysis the legal effect depends primarily upon the intention of the parties to the instrument. For the legal effect of an instrument involves two factors, namely (1) what is the agreement between them and (2) how far the law would recognise or give effect to their agreement. The intention of the parties must, however, be gathered from the language employed in the instrument, and where there is no ambiguity it is not permissible to refer to external circumstances not even to the conduct of the parties or their actings. It is only in cases of ambiguity that resort can be made to those sources. The fact whether the prior or the original bond on which the loan was taken was returned or not by the lender to the borrower after the execution of the "later bond" which is sought to be reopened is therefore not admissible in evidence (unless terms of the later bond are ambiguous) for the purpose of deciding the question as to whether it had extinguished the obligation under the prior or original bond and had replaced it by another or substituted obligation. With this reservation we agree with those observations made in First Appeal No. 73 of 1942 Nripendra Kumar Roy Choudhury v. Santosh Kumar Dass First Appeal No. 73 of 1942, Decided on 1st February 1946. 8. The terms of the two mortgage bonds Exs. 13 (a) and 1, dated respectively 5th November 1914 and 11th September 1927 are similar. Exhibit 13 (a) recites the original mortgage of 13th December 1912 (Ex. 13) and the relevant portion is as follows: Therefore after adjustment of accounts of the principal and interest due on the aforesaid sum of Rs. 5500 borrowed on the basis of the mortgage bond (Ex. 13) it is found that Rs. 6202 is due to you and is payable by me. Being unable to repay the said sum of Rs. 6202 in cash and by admitting this day that the said sum to be due and by keeping in force the security created by the bond dated 28th Augrahan 1319 I renewed this bond for the loan. 9. The material terms of Ex. 1 are as follows: I am indebted to you for the money taken from your tahabil on the basis of the registered mortgage bond for Rs. 6202 executed on 19th Kartic 1321 B. S. (Ex. 13a). 9. The material terms of Ex. 1 are as follows: I am indebted to you for the money taken from your tahabil on the basis of the registered mortgage bond for Rs. 6202 executed on 19th Kartic 1321 B. S. (Ex. 13a). After adjustment of accounts it is found that Rs. 11,440 inclusive of principal and interest are due to you and justly payable by me. Being unable to pay the said amount in cash at present I renew this mortgage bond to-day on admitting the said debt of Rupees 11,440 keeping in force the security created by the bond dated 19th Kartic 1321 (Ex. 13a). 10. The effect of each of these two bonds (Exs. 13A and 1) is that the security created by the mortgage (EX. 13) of 13th December 1912 was kept intact. The sole motive of the plaintiff may be to prevent a mortgagee of the self same properties, who may have had advanced a loan to the mortgagor after 13th December 1912, getting priority over him. But whatever be the motive the effect was to keep intact the security created by the mortgage of 5th December 1912. In sub-stance a vital part of the obligation as created by the mortgage bond Ex. 13 dated 13th December 1912 was that the plaintiff should have his money out of the secured properties before a later creditor of the defendant who had the security of the self same properties or some part thereof, and that obligation was preserved under the terms of the two later mortgage bonds Exs. 13 (a) and 1. There was thus no extinguishment of the obligations under-taken by the defendant under that bond Ex. 13 by the terms of the two bonds Ex. 13A and Ex. 1. There was no complete supersession. The adjustment and agreement contained Exs. 13 (a) and 1 are accordingly not protected against re-opening. The principal of the loan must, therefore, be taken to be Rs. 5500 namely the amount which was actually advanced, and not the amount treated as principal in either Ex. 1 or 13 (a). The amount of the new decree as made by the learned Subordinate Judge must therefore be maintained. 11. The most important consideration for the determination of the amount and number of instalments is the ability of the borrower to pay. 1 or 13 (a). The amount of the new decree as made by the learned Subordinate Judge must therefore be maintained. 11. The most important consideration for the determination of the amount and number of instalments is the ability of the borrower to pay. After considering the evidence of both parties we find that the two taluks which were mortgaged yield a gross income of Rs. 2200 and the khamar lands of the defendants-respondents, who are the legal representatives of the mortgagor, Jnanendra Nath Guha, yield a net income of Rs. 1000 a year. The revenue, cesses and collection charges amount to Rs. 625 roughly. That leaves an annual net profit of Rs. 2575 from their lands. Their household and other expenses may on the evidence be fairly estimated at Rs. 1500 a year. That would leave more than Rs. 1000 a year for payment of their debts, and the evidence is that they have no other debts to pay except those covered by the three mortgages in suit. The total amount payable on the three decrees passed by the learned Subordinate Judge, which we affirm, is Rs. 18,613 odd. In these circumstances we hold that twenty equal annual instalments would be fair. We order accordingly. The first instalments are to be paid within 15th September 1946 and the other instalments within 15th September of each the succeeding year. The amounts already paid by the defendants-respondents or their father in pursuance of the instalment order made by the learned Subordinate Judge are to be credited towards the first instalments. In default of payment of any one instalment the plaintiff would have the right to apply for a final decree. We direct each party to bear their respective costs of this appeal.