A mortgagee with possession is entitled to retain possession of the mortgaged property until the discharge of the mortgage debt, and this right is not barred by S. 68(1)(d), T. P. Act, which provides a supplemental right to sue for the mortgage money in certain circumstances.

1. The suit out of which this appeal has arisen was instituted by Raghunath Prasad, Kedarnath and Hiralal against Kiran Swaroop and Mt. Haidari for the possession of an open land together with a Chabutra standing, thereon and for mesne profits.

The plaintiff's case was that the property in suit was mortgagee with possession in their favour by Mt. Ludako by a registered deed on 3-4-1939; that thereafter Mt. Ludako took the property on rent from the mortgagees and continued in possession of the property as mortgagees' tenant until her death sometime in 1946 that on 3-7-1947 the defendant Kiran Swaroop. got Mt. Haidari to execute a sale deed of the property in his favour and took possession of the' property.

The plaintiffs alleged that as mortgagees they were entitled to the possession of the property and that the defendant's possession was illegal and unauthorised. On these allegations the plaintiffs claimed the recovery of possession of the property as well as mesne profits at the rate of Rs. 10/- per month. Mt. Haidari admitted the plaintiffs' claim.

The defendant Kiran Swaroop contested the suit inter alia on the ground that Mt. Ludako was not the owner of the property and that, therefore, the mortgage executed by her in favour of the plaintiffs was void and inoperative and that he was in possession of the property as a purchaser from Mt. Haidari, the real owner of the property. It was also pleaded in the alternative that as Mt. Haidari was the daughter of Mt. Ludako she was competent to sell the property as legal representative of Mt. Ludako to the defendant.

The defendant further stated that the plaintiffs were not entitled to the relief of possession of the property and mesne profits. The learned Civil Judge Second Class Gwalior who tried the suit found that Mt. Ludako was the rightful owner of the property; that she executed a mortgage with possession of the property in favour of the plaintiffs on 3-4-1939; that the transfer of the property by Mt. Haidari to Kiran Swaroop was not valid; and that under the terms of the mortgage, the plaintiffs were entitled to the possession of the property.

On these findings a decree for the possession of the property in favour of the plaintiffs was passed by the trial Court directing the defendant Kiran Swaroop to pay the costs of the suit to the plaintiffs and the defendant Mt. Haidari. It also contained a direction for an inquiry into the mesne profits. The defendant Kiran Swaroop then appealed to the Court of Civil Judge First Class. Lashkar.

The appellate Court held that Mt. Haidari was a legal representative of Mt. Ludako and that the sale of the property by her to Kiran Swaroop was valid. The other findings of the trial Court were, however, upheld in appeal. The appellate Court made a modification in the decree of the lower Court with regard to costs by disallowing the plaintiff's costs on the claim of mesne profits. In other respects the decision of the trial Court was affirmed and the defendant's appeal was dismissed leaving the parties to bear their own costs.

The defendant has now preferred this appeal against the decision of the Civil Judge First Class. Lashkar. The plaintiffs have also filed a cross-objection with regard to the costs' of the appeal disallowed to them. During the pendency of this appeal Hiralal died. As according to the plaintiffs Hiralal, Raghunath Prasad and Kedarnath were members of a joint Hindu. family and the mortgage was effected through Hiralal in favour of the family and as Raghunath Prasad was now the Karta of the family, the appeal was heard as against Raghunath Prasad and Kedarnath the surviving co-parceners, who were already on record.

2. Before me it was not disputed that Mt. Ludako was the owner of the property in suit and that on 3-4-1939 she mortgaged the property with possession in favour of the plaintiffs; that after the mortgage she remained in possession of the property as a tenant of the mortgagees until her death; and that on 3-7-1947