1. In regard to the question of law, which was the main ground for this reference, namely, whether oral evidence as to the acts and conduct of the parties was admissible to prove that the deed in this case was intended to operate as a mortgage and not as an out-and-out sale, the learned Vakil who appeared for the appellant stated that, having regard to the authorities, he could not successfully contend that such evidence was not admissible. We think the authorities establish that in such a case, evidence directed to the acts and conduct of the parties would be admissible. Upon the main question submitted to us on this reference, the appellant consequently fails.
2. Upon the other point, whether the case ought to go back to the Lower Appellate Court, upon the ground that the Subordinate Judge has not determined the question whether the mortgage has been extinguished or satisfied, we see no reason to differ from the conclusion of the two learned Judges who heard the case in the Division Bench.
3. The case must go back for the determination of the question, but to be decided upon the evidence as it now stands.
4. With reference to the costs of the appeal, and of the reference as regards the appeal as there has been a partial success on each side, the costs of the appeal must abide the result of the remand, but as regards the costs of the reference the appellant must pay them.