1. The plaintiff in this case brought an action for redemption of a mortgage dated the 9th of September 1872 and claimed account. The material portion of the mortgage-deed may be rendered as follows:
This condition has been agreed upon that whatever may be the income of the property (biswat) mortgaged the mortgagees will be entitled to it (and that) I shall claim no account. As the income (of the mortgaged property) is not sufficient for the payment of the interest which is at the rate of ten annas per cent, per month I shall pay from my own pocket to the mortgagees a yearly sum of Rs. 35.... I shall redeem (the property) whenever I pay the whole of the principal and interest.
2. One of the pleas in defence was that the plaintiff, in consequence of the express agreement that he could not claim accounts, was debarred from such a claim. The Court of first instance decreed the suit for redemption but rejected the claim for an account. On appeal the lower Appellate Court came to the conclusion that the plaintiff Was entitled to an account and remanded the case.
3. The defendants came to this Court in appeal from the order of remand and their learned Vakil urges that the express agreement entered into between the mortgagor and the mortgagees precludes him from claiming accounts.
4. The learned Counsel for the respondent in answer to the above contention; says that the specification of the rate of interest clearly implies that the mortgagees are entitled to the mortgage-debt and the interest thereon at the rate of ten per cent, per month and to no more, and that this necessarily involves the taking of an account.
5. In our opinion, the express agreement between the mortgagor and the mortgagees that the former will not claim accounts and will, in order to redeem, pay the whole of the principal and interest, debars him from claiming accounts. The liability of the mortgagees to account inferred from the fixing of the rate of the interest can in no way override the express agreement that there shall be no account. The case is governed by Shafi-un-nisa v. Fazalrab 7 A.L.J. 787 : 7 Ind. Cas. 293. The result is that we set aside the order of the lower Appellate Court and restore the decree of the Court of first instance with costs.