John Wallis, C.J.

1. It is in my opinion not open to us to answer the question referred to us in the affirmative consistently with the decisions of the Privy Council in Pattabhiramier v. Venkatarow Naicken (1871) 13 M.I.A 560, Thumbusawmy Moodaly v. Hossain Rowthen (1875) I.L.R. 1 Mad, Sithal Pershad v. Luchmi Pershad (1883) I.L.R. 10 Cal. 30, Bhagwan Sahai v. Bhagwan Din (1890) I.L.R. 12 All. 387, Balkishen Das v. W.F. Legge (1899) I.L.R. 22 All. 149 and Jhanda Singh Wahiduddin (1916) I.L.R. 38 All. 570. All these decisions lay down that in cases in India not governed by Bengal Regulation XVI of 1806 instruments of this kind are to take effect according to their tenor, unless it appears from the terms of the instrument or the surrounding circumstances, excluding oral evidence of intention as inadmissible, that the intention was to effect a mortgage. In Thumbuswamy Moodaly v. Hossain Rowthen (1875) I.L.R. 1 Mad. 1 the Privy Council refused to disturb a decision of this Court which took a different view, because it considered that the parties might have been misled by a course of decisions in this Court which their Lordships held to be erroneous, but they also indicated with