1. On the whole, though not without hesitation, we think that the instrument may be considered to be a mortgage, but we are of opinion that it falls within Section 98 of the Transfer of Property Act, and that the rights and liabilities of the parties must be determined by the contract itself. The contract does not provide for the contingency which has occurred. No special usage applicable to the present circumstances is set up. It is, however, contended that, under Section 68 of the Transfer of Property Act, it was open to the mortgagee to sue for the mortgage money as possession of part of the mortgaged property had not been delivered to him or to acquire a charge on the part which had been delivered to him until he was repaid the mortgage money. It appears to us, however, that Section 68 does not apply to a case like this. That Section contemplates cases where the mortgagee is entitled to claim, repayment of the mortgage money before redemption. In the present case, however, the contract gives no right to claim repayment, but in terms denies it. The only right the mortgagee had was to remain in possession for the stipulated period and to recover damages for the breach of contract by the mortgagor in not delivering possession of the whole of the land to him. We think, therefore, that the lower Courts were wrong in holding that Exhibit I was an usufructuary mortgage and gave the second defendant the right to remain in possession of the part he had after the expiry of the three years agreed upon.
2.We must, therefore, reverse the decrees in both the Courts below and decree possession of the property sued for to the plaintiff with Es 9 for past mesne profits and with future mesne profits also. The defendants must pay the plaintiff's costs throughout.