- (1.) This is an appeal in a mortgage suit instituted more than twenty years ago. The original plaintiffs, the mortgagors, named Sing, sued in the Court of the Sudder Ameen of Zilla Sarun, the representatives of the original mortgagees, named Lal, who were eminent bankers, having cootis in various parts of India, and also one Ramkrishna, the gomasta of the firm, to cancel on redemption three several instruments, viz., the mortgage deed, lease, and agreement named in the plaint, and which will be more particularly described. These instruments the plaintiffs alleged to constitute one mortgage security of the bankers, the Lal defendants. All the defendants asserted, however, as to two of these instruments, viz., the lease and the agreement, a different title and interest, conferring a separate interest as distinct from the bankers, on their gomasta, the last defendant. The lease bore date the 16th May 1837; it was for twenty years, and reserved a rent of sicca rupees 24,858 annas 10, payable to the Sings by the gomasta. The mortgage deed bore date the 5th June in the same year, and pledged the same property also for twenty years to the bankers, to secure a loan of sicca rupees 1,50,000 from them to the Sings. The interest reserved was 9 per cent. Ostensibly, the mortgagees were entitled to the rent alone, the surplus of which, after deducting the Government revenue, left a balance of rupees 13,500, exactly the sum calculable as interest on the loan at 9 per cent. Ramkrishna granted, as apparently a subsidiary arrangement, sub-leases to certain katkanadars, nominees of the mortgagors, at rents aggregating sicca rupees 35,067, and the mortgagors guaranteed to him those receipts of rent. Ostensibly, therefore, the several instruments evidenced a mortgage transaction, providing only for interest alone from the usufruct, leaving the principal debt to be paid otherwise in full, and a beneficial lease in the gomasta yielding an annual profit of rupees 10,200. All the defendants insisted that the ostensible was also the real character of the instruments. The ikrarnama was executed by the mortgagors, the Sings, to the gomasta, on the 29th August, in the same year, as a security to cover certain losses incurred or anticipated from adverse claims, for the due payments of their rents by the sub-lessees, the katkanadars, and for a future advance of sicca rupees 7,000 bearing an interest of 12 per cent.
(2.) The plaintiffs sought also to recover possession, alleging the mortgagees, the Lal defendants, whom they treated as mortgagees in possession, to be satisfied from the usufruct, and further claimed as mesne profits a small alleged surplus from the same source.
(3.) This claim, then, of the mortgagors to redeem before the twenty years were past, was denied in respect of all that the lease covered, which was the whole that the mortgage deed included.;