Lord Simonds.-

In this appeal which is brought from a judgment and decree of the Judicial Commissioner, North West Frontier Province, dated 28th July 1943, a large number of questions have been debated upon which their Lordships think it unnecessary to express any opinion. The question which is decisive of the matters in dispute is a simple one and the relevant facts can be shortly stated.

[2] The first respondent to this appeal, Abdul Wahab Khan, claiming that under and by virtue of a deed of 23rd August 1939, he had acquired from one K. B. Muqarrab Khan, since deceased, all the rights which the latter enjoyed under a certain mortgage dated 25th May 1921, brought the suit out of which this appeal arises to enforce his rights as mortgagee under that mortgage. His suit was dismissed on various grounds by the Additional Subordinate Judge, Peshawar, on 24th November 1942, but his appeal from that decision was substantially allowed by the Court of the Judicial Commissioner.

[3] It appears to their Lordships that, apart from all other defences available to the appellant in the suit, it is a fatal objection to the claim of respondent 1 that under the deed of 23rd August 1939, upon which he