JUDGMENT

1. This is a second appeal1 by Kanhaiya Lal and Debi Dayal, plaintiffs, against the judgment and decree dated 26th January 1931 of the learned District Judge of Unao, affirming the judgment and decree dated 26th August 1930 of the Additional Subordinate Judge of that place. It arises out of a suit for foreclosure instituted by the plaintiffs on the basis of a mortgage deed dated 27th October 1902.

2. Though the question of law requiring determination in this appeal is a fairly short one, yet the facts of the case are a bit complicated and need to be stated at some length. Kalka Singh, Gulab Singh and Chandika Singh were three brothers who between them owned a five annas four pies share in village Bichauli, pargana Auras, district Unao. In 1888 Kalka Singh and Gulab Singh executed two deeds of simple mortgage in favour of Mt. Bitto. The first of these deeds (Ex. 3) dated 16th January 1888 was for Rs. 1,500 carrying interest at 1 per cent per mensem, in respect of a one anna share in Bichauli. The term fixed for payment was five years. The second deed (Ex. 4) was executed on 26th June 1888 for a sum of Rs. 997 with interest at 1 per cent per mensem payable in four years. This deed also related to a one anna share in Bichauli. Mt. Bitto died in 1893 or 1894 leaving Mahadin father of Kanhaiya Lal, plaintiff 1, and Ram Prasad, father of Debi Dayal, plaintiff 2, as the nearest reversioners of her hushand. Thus after the death of Mt. Bitto Mahadin and Ram Prasad became entitled to her mortgagee rights under the mortgages Exs. 3 and 4. In order to repay the mortgage debt due under these two deeds Gulab Singh, defendant 1, on 27th October 1902 executed the mortgage deed in suit (Ex. 1) for Rs. 3,000 bearing interest at four annas per cent per mensem, in favour of Mahadin and Ram Prasad. The mortgage consideration was made up of Rs. 2,497, the principal sum secured under the two deeds Exs. 3 and 4 in favour of Mt. Bitto and Rs. 503, the interest due in respect of both the aforesaid deeds. It is a mortgage by conditional sale in respect of an eight pies share in village Bichauli. The term fixed in the deed is 15 years. The plaintiffs as representatives of Mahadin and Ram Prasad, claimed a decree for Rs. 4,292-12-0 on account of principal and interest by foreclosure of the eight pies share on the allegation that the time fixed for payment had expired. As the controversy in the appeal before us is only between the plaintiffs and two of the defendants, namely Baijnath, defendant 4, and Hira Lal, defendant 5, it would be enough for us to state such of the pleas raised in defence by these defendants as are relevant to the appeal. The plaintiffs have impleaded Baijnath and Hiralal as subsequent transferees of the mortgaged property. Baijnath pleaded that Gulab Singh, defendant 1, and Mt. Rukmin, widow of Kalka Singh, had on 19th October 1899 executed a mortgage deed Ex. F-2 for Rs. 7,344 bearing interest at ten annas per cent per mensem in favour of his brother Thakur Prasad in respect of a three annas six pies share in village Bichauli. It was a possessory mortgage but possession was not given. The term fixed in the mortgage was ten years. Thakur Prasad died and since his death Baijnath became entitled to the mortgagee rights of his deceased brother. On 16th October 1911, Gulab Singh and Mt. Rukmin in order to repay the debt due under the mortgage deed Ex. F-2 executed another mortgage deed (Ex. F-1) for Rs. 12,000 in favour of Baijnath. The term fixed for payment in this deed is ten years. It relates to a three annas share in village Bichauli.

3. Under the terms of this deed the mortgagee was given possession over specific plots of land aggregating 144 bighas 2 biswas in area in lieu of interest which was fixed at seven annas per cent per mensem. Baijnath obtained a decree for sale on foot of the mortgage deed Ex. F-1 and on 9th August 1927 purchased a 2 annas 6 pies share in village Bichauli in execution of the said decree. On the b