( 1 ) BOTH these are appeals by the applicants in a case under Section 12, U. P. Agriculturists Relief act XXVII [27] of 1934.

( 2 ) THE appellants applied under the said section for redemption of a usufructuary mortgage dated 10. 7. 1928 made by their father Tikam Singh in favour of one Ganga Sahai, the original respondent, after whose death his legal representatives were brought on the record. The mortgage was for Rs. 6,337 and was executed to pay off a decree No. 140 of 1926 of the Court of the Subordinate Judge, Bulandshahr, which had been passed on foot of a simple mortgage bond dated 4-11-1920, executed by the same mortgagor in favour of the same mortgagee. This earlier mortgage too had been executed in lieu of amounts due on certain promissory notes of previous dates.

( 3 ) THE appellants case was that the entire mortgage money had been paid off from the usufruct of the property, whereas the mortgagee pleaded that a sum of Rs. 5059-9-7 was still due on that account from the present appellants as their rate able share of liability under the mortgage sought to be redeemed.

( 4 ) THE question of the appellants rate able liability was raised in view of certain previous proceedings, under the Encumbered Estates Act. The mortgagor, Tikam Singh, had applied under Section 4 of that Act, impleading his sons, the present, appellants, in the array of opposite parties. It was held in that case that Tikam was liable to pay 1/5th and the sons 4/5ths of the family debts and, so far as the amount due under the mortgage now in question is concerned, the liability of the appellants was fixed at Rs. 5059-9-7, which is precisely the amount claimed by the mortgagee in, his defence in the case under Section 12, Agriculturists Relief Act. In the proceedings under the Encumbered Estates Act the relative position of the title of the father and the sons was also fixed, the proportion being 1/5th for the father and 4/5tha for the sons.

( 5 ) THE Court below had first allowed the claim for redemption without the mortgagors having to pay anything at all, on the finding that the entire mortgage money had been paid up from the usufruct of the property mortgaged. This Court, on an appeal (First Appeal No. 401 of 1941), filed by the mortgagee Ganga Sahai, set aside that decree and sent the case back for a fresh trial, holding that the mortgage money had not been paid up as claimed by the mortgagors. The Court then passed the decree now under appeal, holding that Rs. 4131-14-9 were still due from the appellants in respect of their 4/5ths liability under the mortgage in suit.

( 6 ) ONLY three points were urged by the learned counsel for the appellants in this appeal : (1) that certain repayments made to the mortgagee had been wrongly disallowed by the Court below, (2)that a larger amount had been paid as interest to the mortgagee than what he was entitled to receive under the present law, and (3) that the appellants were not liable to pay to the mortgagee the amount which their father Tikam Singh mortgagor might have failed to pay as theka money for the Sir plots of which he (Tikam Singh) had taken a theka for 12 years from the mortgagee on the date of the mortgage. The amount annually payable under that theka, it, may be mentioned, was Rs. 378.

( 7 ) WE propose to consider these points seriatim.

( 8 ) AS regards the first point, the only evidence produced by the appellants was the statement of tikam Singh, the mortgagor. He no doubt stated that he had repaid to the mortgagee five different amounts, viz. Rs. 117 on 29-6-1919, Rs. 156-15-0 on 29-6-1920, Rs. 111 on 28-1-1920, rs. 246 on 29-6-1919 and Rs. 243-15-0 on 29-6-1920. To rebut that statement the defendant examined Bishambhar Das, son of the mortgagee, who denied the repayments alleged. There was thus oath against oath on this vital question of repayment of a fairly substantial amount alleged to have been made by the mortgagor to the mortgagee. The Court below was not satisfied wi