1. The mortgage-bond in this case puts the mortgagee in possession of the mortgaged property, and authorizes him to retain possession until payment of the mortgage-money, the mortgagors being given credit for all profits recovered from the land over and above the Government assessment; so far it is a usufructuary mortgage within the meaning of Clause (d) of Section 58, Transfer of Property Act.
2. The deed also contains a personal covenant by the mortgagor to pay the mortgage-money and an implied agreement that in the event of non-payment the property shall be sold (the debt is to be recovered from the mortgaged land and from the persons and other property of the mortgagors). So far it is a simple mortgage within the meaning of Clause (b) of Section 58, Transfer of Property Act.
3. As such, the rights and liabilities of the parties should be determined as laid down in that section, by the contract as evidenced in the mortgage-deed, and, so far as such contract does not extend, by local usage.
4. Here the plaintiff-mortgagee sued for recovery of the debt, and in default of payment by the mortgagors for foreclosure and possession. To that relief he is not entitled because he lost possession by leasing the land to his mortgagors for a term, and if he seeks to regain possession he must sue as a landlord on the determination of the tenancy. Though be asked for relief to which he is not entitled, that ought not to deprive him of his right to the relief which he can legally claim. The fact that the mortgagor went into possession as a tenant does not affect the distinct and independent right of the plaintiff to sue for the mortgage-money. As account must be taken of what is due on the mortgage and the plaintiff given a decree for sale. There is obviously no bar of limitation or institution fee. The claim should be valued at the amount of the debt sought to be recovered: Transfer of Property Act, Section 92, and Hemraj v. Trimbak P.J. 1897 p. 416.
5. We reverse the decrees of the lower Courts and remand the case to be disposed of in accordance with the above remarks. Costs to abide the result.