The main legal point established in the judgment is the interpretation of the nature of the amount claimed (rent or interest) and the application of the relevant limitation period under the Limitation Act.

Tyabji, J.

1. On the 8th April 1896, under Exhibit A, the defendants mortgaged with possession nine items of property estimated to yield 1,000 paras of paddy which, after meeting the assessment and interest, left 126 paras to go in reduction of the principal. On the same day, by Exhibit B, the mortgagors leased back from the mortgagees the nine items on the terms that they were only to pay the mortgagees the 650 paras due for interest on the mortgage and retain 350 paras out of which they were to pay the assessment.

2. On the 1st September 1903 the mortgagors executed another mortgage in favour of the mortgagees, Exhibit C, for Rs. 3.300, of 19 items of property, of which items 1 to 9 were the subject of the mortgage with possession (Exhibit A).

3. The mortgage was expressly recited to be given as security for the principal sum of Rs. 3,300 and the interest thereon, and as to items 1 to 9 was with possession and as to the other items without possession. On the same day the mortgagors again took a lease of the nine items which wore included in both mortgages at a rental of 1,000 paras of paddy. On these facts the Subordinate Judge has held that the plaintiff is not entitled to a charge on the mortgaged properties for the arrears of interest due on the mortgage, although the mortgage is expressly stated to secure the interest as well as the principal, by reason of the fast that the mortgagors took the nine items on lease under Exhibit 1) and that the rent due by them for more than three years is barred. He, accordingly, only allowed the amount of three years rent. The Subordinate Judge says the interest on the mortgage Exhibit D had been agreed to be paid out of the usufruct of the nine items comprised in Exhibit A, but I do not find any such provision in Exhibit C and I can see no reason for refusing to give effect to the provisions of the Exhibit 0 that the whole 19 items mortgaged should be security for the interest as well as the principal would, therefore, modify the decree accordingly. The similar ground of appeal as to the interest in Exhibit A was not pressed, and the other objections are untenable. The decree will be modified accordingly. The parties will pay and receive proportionate costs of the appeal.

4. The memorandum of objections is dismissed with costs. Time for redemption is extended to three months after the re-opening of the lower Court.

Tyabji, J.

5. This appeal arises out of a suit for the realisation of debts secured by two mortgages, for the sale of the properties mortgaged, and for a personal decree against the mortgagors. The mortgages are Exhibits A and C on the record, dated 8th April 1896 and 1st September 1903, for the sums of Rs. 5,000 and Rs. 3,300 respectively. It has been found by the learned Subordinate Judge that the mortgages were supported by consideration, that they were executed for tarwad purposes, that there was necessity for their execution and that they are, therefore, binding as against the properties themselves and the interests of all the members of the tarwad. These findings are based on a consideration of all the evidence, including the circumstances that all the adult members (for the time being) of the tarwad, joined in the execution of the mortgages sued upon and that reasonable inquiries" had been made into the necessities of the tarwad. It is unnecessary to say more in regard to these findings than that the evidence fully supports them.

6. The mortgages sued upon purport to be usufructuary. But on the very days on which they were executed, the parties entered into agreements (Exhibits 13 and D respectively, dated 8th April 1896 and 1st September 1903), by which the usufructuary mortgagee purported to let the mortgaged premises to the mortgagor: and the latter purported thenceforth to hold possession of the mortgaged properties as tenant of the mortgagee. Thus the mortgagor continued in possession of the properties usufructuarily mortgaged, but in effect attorned to the mortg