Lord Parker:-

This is the rehearing of an appeal from the High Court at Calcutta, dated the 30th August 1911, which set aside a preliminary decree of the Subordinate Judge and remitted the case to the Court of the Subordinate Judge to be dealt with in accordance with certain directions contained in the judgment of the High Court. At the original hearing the, present respondents did not appear and the appellant obtained an order setting aside the decree of the High Court at Calcutta and dismissing the action in which the appeal arose. Subsequently the respondents obtained an order of His Majesty discharging the order thus made on the ground that it was by the fraud of his agent that he was not represented by counsel at the hearing, and directing the appeal to be reheard, the costs thrown away to be dealt with upon such rehearing. The appeal has accordingly been reheard before their Lordships, who have had the advantage of hearing counsel on both sides, The facts out of which this action arose may be stated as follows : In 1896, Maharajah Shri Ramnarayan Singh Bahadur (whom their Lordships will hereafter refer to as the mortgagor) executed in favour of Rai Jadunath Mukerji Bahadur (whom their Lordships will hereafter refer to as the mortgagee) a deed dated the 14th April in that year. This deed recites that the mortgagor had borrowed from the mortgagee a sum of 1,30,000 rupees, and for the repayment of the loan with interest as therein mentioned, had given in Zarbharna the rents and cesses of the Mokurari villages therein described. The villages are divided into groups, the distinguishing mark of each group being the date at which the mortgagee is to take possession. The possession of all the villages is to be redelivered to the mortgagor on the 14th January 1903 it being calculated that by that date the amount due to the mortgagee for principal and interest will have been satisfied out of the rents of the several villages. The deed contains an elaborate schedule showing the details of this calculation. It also expressly precludes the mortgagor collecting any of the rents during the term of the Zarbharna. It also contains the following clause :-

"If by mistake I" (the mortagor) "or my heirs make any collection, then I or my heirs shall be liable to pay the amount collected with interest at the above rate.........Except in such a case, for no other reason and on no other account the Zarbharnadar has and shall have any claim whatever against me or my heirs and representatives on the ground or realisation and non-realisation. If a claim is made, it is and shall be totally null and void."

It is common ground that the mortgagee obtained possession of the several groups of villages at the respective days in that behalf specified in the deed, and retained possession thereof for the term of the Zarbharna, and at the expiration of such terms redelivered the villages to the mortgagor. The mortgagee, however, did not in fact receive by the collection of the rents sufficient money to discharge the principal of the loan with interest as mentioned in the deed.

On the 13th January 1909, within 6 years from the expiration of the term of the Zarbharna the respondents, who represent the mortgagee, instituted the present action. By their plaint they asked relief either (1) in accordance with Order XXXIV, Rule 4, of the Civil Procedure Code, on the footing of an existing mortgage of the villages described in the deed; or (2) on the footing of a personal liability on the part of the mortgagor. They claimed to realise what was due to them, in the first alternative, out of the mortgaged villages and, in the second out of the estate of the mortgagor who was then dead.

In the course of the action it appeared that the deed of the 14th April 1896, was unattested, and it was accordingly held by the Subordinate Judge that it could not, having regard to the Transfer of Property Act, 1882, section 59, be enforced as a mortgage. The respondents did not appeal from