Karamat Husain, J.
1. The facts are these:--One 1di on the 15th of January, 1866, executed a mortgage deed in favour of his son Shams-ud-din. The material portion of the said mortgage-deed may be rendered as follows:
A sum of Rs. 700 in all is due to Shams-ud-din by me, hence executing this deed in favour of Shams-ud-din, I covenant and give in writing that in lieu of the interest on the said sum which at the rate of Rs. 2 per mensem amounts to Rs. 168, I mortgage with possession 56 bighas, 11 biswas and 7f dhurs yielding a rent of Rs. 113-2-3 at the rate of Rs. 2 per bigha, situate in the village Angwa alias Kathgaun and put him in possession. The said Shams-ud-din is to appropriate the rents of the said land amounting to Rs. 113-2-3. He may either cultivate the land or let it to tenants. I and my heirs and representatives shall raise no objection. After deducting Rs. 113-2-3 an annual balance of Rs. 54-13-9 remains due, and whenever I shall intend to pay off the debt, I shall pay the principal together with the annual balance of interest, i.e., Rs. 54-13-3 and shall redeem the land.
2. The representatives-in-interest of the mortgagor brought an action for redemption of the property mortgaged on the allegation that in the settlement of 1882 fasli in consequence of exchange of the plots the area of the mortgaged property went up to 80 bighas, and that its rent rose to more than Rs. 200, and they prayed for accounts.
3. The pleas in defence on which the disposal of this appeal turns were that under the mortgage deed in question the mortgagees were not bound to render accounts and that the plaintiff in order to redeem had to pay the principal Rs. 700 and the total of the annual balance of interest amounting to Rs. 3,859.
4. The Court of first instance finding that the plaintiffs were not entitled to accounts, decreed their claim on- condition of their paying Rs. 2,962-14-0 to the answering defendants with costs.
5. The plaintiffs appeal to the lower appellate Court. One of the pleas taken was that the defendants were liable to account. This plea found favour with the lower appellate Court which discharged the decree of the first Court and remanded the case. That Court, towards the end of its judgment, observes: 'I, therefore, disagree with the narrow construction the learned Munsif has placed upon the deed. I consider that so far its terms are most clear and distinct that in no case is the mortgagee or his representatives entitled to derive greater annual interest than is represented by the sum of Rs. 168. It is necessary, therefore, in my opinion, that accounts should be taken to find out how much the mortgagee or his representatives have derived from the land as rent during each year during which the mortgage subsisted.' The defendants appeal against the order of remand and their learned Vakil, on the one hand, contends that on a right interpretation of the mortgage deed dated the 15th January, 1866, the defendants are not liable to accounts, that the mortgage being a usufructuary mortgage, there can be no liability to accounts under 77 of the Transfer of Property Act and that the plots obtained in exchange, though larger in area must in the absence of anything to the contrary be presumed to be of an equal value to the plots originally mortgaged. The learned Advocate for the respondents, on the other hand, contends that by the terms of the mortgage the defendants cannot take more than Rs. 168 a year as interest, that the mortgagor being the owner of the property, his representatives are entitled to account, and that the mortgage not being a usufructuary mortgage inasmuch as the rents accruing from the property are not to be appropriated in lieu of the whole interest, 77 of the Transfer of Property Act has no application. Both parties rely on Jaijit Rai v. Gobind Tewari 6 A. 303. In my opinion the contentions of the learned Vakil for the appellant are sound and must, therefore, prevail. There is nothing in the mortgage deed of the 15th January, 1856 to entitle the mortgagor to account. If he wanted to make the mortgagee liable to account, he should have in express terms stipulated therefor. In the absence of such stipulation the agreement as to the payment of the annual balance of the interest is binding upon his representatives. This was enacted so far back as 1855, by 4 of Act XXVIII of 1855, which is in the following terms: 'A mortgage or other contract for the loan of money by which it is agreed that the use or usufruct of any property shall be allowed in lieu of interest shall be binding upon the parties.'
6. In addition to the absence of any agreement regarding the liability of the mortgagee for accounts the mortgage in question is undoubtedly usufructuary and 77 of the Transfer of Property Act exempts him as such from liability to account. The fact that the rents of the property are to be appropriated in lieu of a portion of interest only, cannot alter the usufructuary character of the mortgage. According to the notion of a mortgage in British India the ownership of the property, no doubt, remains in the mortgagor, but when he puts the mortgagee in possession and expressly covenants to pay the total of the annual balance of interest at the time of redemption his ownership cannot entitle him to account. The question of accretion does not arise for what the mortgagee got was in exchange of a portion of the property originally mortgaged, and there is nothing to show that the large area is not of the same value as the property which was originally mortgaged.
7. The ruling in Jaijit Rai v. Gobind Tewari 6 A. 303, relied on by both sides, is not directly in point.
8. For the above reasons, I would allow the appeal with costs, which in this Court will include the fees on the higher scale, set aside the order of the lower appellate Court and remand the case to that Court for trying the remaining issues.
9. I agree with my learned brother that the lower appellate Court has placed a wrong construction upon the deed which contains the covenant between the parties. The intention of contracting parties clearly was that the profits arising from the land mortgaged were to be appropriated by the mortgagee as part of the annual interest accruing upon the sum advanced by him, and that the respondents when they wished to redeem should pay the principal money--the mortgage money--together with Rs. 45-12-3, the annual balance of interest agreed upon. I agree in the order proposed.