1. This is an appeal on behalf of the Defendants in anaction commenced by the Plaintiff-Respondent for redemption of a usufructuarymortgage. The case for the Plaintiff is that, on the 23rd June 1877, his fatherexecuted a usufructuary mortgage for nine years in favour of the Defendants ortheir predecessors for a sum of Rs. 1,400. Under the terms of the mortgagedeed, the mortgagees were to take possession of the premises, and apply theprofits in the manner following, that is, pay Rs. 1940 as the Governmentrevenue and Rs. 10-1-3 as profit to the mortgagor, and take the balance, whichwas assumed to be Rs. 58-8.0, in lieu of interest on the mortgage money at therate of Rs. 3-12-0 per cent per annum. It was further stipulated that if as amatter of fact the total income exceeded the assumed amount, namely, Rs.81-13-3, the mortgagees would be entitled to appropriate the excess on accountof their labour and exertion. The substance of the transaction, therefore, wasthat the mortgagees would pay to the mortgagor an annual sum of Rs. 10,1-3, andapply the balance in payment of revenue charges and interest on the mortgagedebt. The Plaintiff alleges that the mortgagees never paid the annual profit,and had, on the other hand, appropriated the sum annually collected by themfrom the tenants on account of cesses payable under the Bengal Cess Act, 1880.The Plaintiff, therefore, seeks for an account, and prays that he may beallowed to redeem upon payment of whatever sum is found due to the mortgagees.The Defendants contend that they are entitled to the whole of the mortgagemoney before redemption can be allowed, because they have uniformly paid theprofit to the mortgagor and have never collected any sum from the tenants onaccount of cesses. In so far as the payment of the profit to the mortgagor isconcerned, however, the Defendants do not assert that the sums were paid incash, but they allege that in October or November 1877 the mortgagor was placedin possession of a portion of the mortgaged properties, and it was agreedbetween the parties that, as the consideration for this transaction, themortgagor would pay the mortgagees the sum of Rs. 10-1-3 annually, in otherwords, according to the mortgagees, the sum in question has not been paid incash to the mortgagor, but the latter has been placed in possession of a partof the mortgaged premises, the income whereof is sufficient to wipe out theannual debt. The Court of first instance found upon both the points in favourof the Defendants. The Subordinate Judge held that the subsequent transactionalleged by the mortgagees had been established on the evidence, and that theDefendants had not collected cesses, or indeed, any sum in excess of the rentfrom the tenants. In this view, the Subordinate Judge made a decree forredemption in favour of the Plaintiff, on the footing that Rs. 1,400, that is,the entire consideration money for the mortgage, had to be paid for theredemption thereof. Upon appeal the learned District Judge has modified thisdecision. Upon the first question he has held that the Defendants are notentitled to adduce oral evidence to prove the transaction alleged by them, andin support of this view he has placed reliance upon the cases of Khoda Buksh v.Alimunissa I. L. R. 27 All. 313 (1904) and Maharaj Singh v. Balwant Singh I. L.R. 28 All. 508 (1906). With regard to the second point the District Judge hasheld that the Defendants mortgagees have collected cesses from the tenants andhave retained them ; in this view, he has held that the Plaintiff is entitledto redeem the mortgage upon payment of only Rs. 317-15-1. The Defendants havenow appealed to this Court and, on their behalf, the decision of the DistrictJudge has been challenged on two grounds, namely, first, that the Defendantswere entitled to prove by oral evidence the arrangement alleged to have beenmade between the parties for the payment of the annual profit of Rs. 10-1-3 tothe mortgagor, and, secondly, that, even on the assumption that the Defendantshave realised cesses from the tenants, the Plaintiff is not entitled to claimthese sums in the course of the accounts in a redemption suit, because if thePlaintiff were now to institute a suit for recovery of the money alleged tohave been improperly appropriated by the mortgagees, his claim would besuccessfully met by the plea of limitation, except with regard to the cessesfor the three years immediately preceding the suit. In our opinion, the firstcontention of the Defendants-Appellants must prevail while the second must be overruled.In support of the first ground taken by the Appellants, it has been urged thatthe arrangement alleged by them was not in variation of the terms of theoriginal usufructuary mortgage, and that, in substance, it was only a mode ofpayment adopted by the parties with regard to the annual profit of Rs. 10-1-3.In our opinion, this contention is well-founded. The Defendants have neverrepudiated the terms of the mortgage, they have never denied that they werebound, under its terms, to pay to the Plaintiff the sum fixed as annualprofits. Their contention is that they have made the payment, not in cash, butby placing at the disposal of the mortgagor the profits of a portion of themortgaged premises. The arrangement, therefore, was not in supersession or evenvariation of the mortgage: it was made on the assumption that the mortgage wasa valid transaction in its entirety. The decisions upon which the DistrictJudge has placed reliance are clearly distinguishable. In Khoda Buksh v.Alimunissa I. L. R. 27 All. 313 (1904), the Court was called upon to considerthe validity of a lease granted by a usufructuary mortgagee to the mortgagor.It was ruled that the two transactions were separate. This principle, if it hasany application to the case before us, plainly does not assist the contentionof the Plaintiff-Respondent. The case of Maharaj Singh v. Balwant Singh I. L.R. 28 All. 508 at p. 514 (1906) merely shows that after a mortgage has beengranted its terms cannot be varied by a parol agreement between the parties. Inthat case the effect of the oral agreement alleged was to modify the terms ofthe mortgage contract in essential particulars, as it purported to reduce theamount recoverable under the deed, take away the right of sale, and provide forthe payment of the reduced debt by a sale of property not included in themortgage" transaction. The case before us is manifestly of an entirelydifferent description and falls within the principle of the decision in GopalSingh v. Laloo Lall 10 C. L. J. 27 (1909). The essence of the matter is aspointed out by the Judicial Committee in Sah Lal Chand v. Indrajit I. L. R. 22All. 370 : s. c. 4 C. W. N. 485 (1900) that the Indian Evidence Act does notsay that no statement of facts in a written instrument may be contradicted, butonly that the terms of the contract may not be varied, added to, subtractedfrom, or contradicted [see also Ram Baksh v. Durjan I. L. R. 9 All. 392(1887)]. Here the Defendants do not seek by parol evidence to contradict orvary the terms of the mortgage contract ; they merely seek to show that thesum, payable as profit to the mortgagor, has been paid in a particular mode.This, in our opinion, it is perfectly competent for them to do. The judgment ofthe District Judge upon this point cannot, therefore, be supported, and thecase must be remanded for further consideration, because, although the DistrictJudge has indicated that he was not quite satisfied with the evidence as to thealleged agreement, he has not reversed the clear and definite finding of theoriginal Court that the agreement has been satisfactorily established. Thefirst ground urged on behalf of the Appellants must therefore prevail.

2. In support of the second ground taken by the Appellants,it has been argued that they are not liable to account for the sums, found bythe District Judge to have been collected by them on account of cesses from thetenants in occupation of the mortgaged premises. It has been contended insubstance that such sums have been collected by them not as mortgagees, but astrespassers, and cannot be included in the mortgage account; in other words,that the mortgagor ought to bring a separate suit for recovery of those sums,and if he should do so, he would be successfully met by the plea of limitationwith regard to a considerable portion of the claim. Before we examine thesoundness of this position, it is necessary to observe that at the time of themortgage contract in 1877 cesses were not payable by the tenants to theirlandlord, the liability was first imposed by the Bengal Cess Act, 1880. When,therefore, the proprietor granted the mortgage, he did not and could notanticipate that the mortgagees would be in a position to realise from thetenants any sums in excess of the actual rents. It appears that after thestatutory liability had been imposed on the tenants the usufructuary mortgageesin possession collected from them, not merely the rents, but also the cesses.The result, therefore, has been that, while the mortgagor as proprietor had paidthe cesses to the Collector, the sums recoverable by them from the tenants inthat behalf have been intercepted by the mortgagees in possession. The questionarises whether under these circumstances the mortgagees are not bound in themortgage account to credit the mortgagor with the sums thus improperly realisedby them. Upon an examination of the mortgage contract, it is, we think, fairlyclear that the parties did not intend that any accounts should be taken at thetime of redemption. They arbitrarily fixed the income of the property, andsettled the amount to be paid therefrom on account of Government demands andinterest on the security. The remainder, which was a fixed sum of Rs. 10-1-3,was to be annually paid to the mortgagor as surplus profits. The arrangement,therefore, in substance was that if the contract was faithfully performed byboth sides, the mortgagor, upon payment of the principal sum alone, wouldbecome entitled to redeem the property. The contingency, however, which hashappened, is that the mortgagees have collected from the tenants sums whichwere realisable under a subsequent Statute only by the proprietor mortgagor.Are they not in equity bound to account for such sums Sec. 76 of the Transferof Property Act provides in cls. (g) and (h) that the mortgagee in possessionis to account for all sums received by him as mortgagee, in other words, if amortgagee in possession has received profits from the mortgaged property in analtogether different character, he cannot be called upon to account for them.Instances of possession by a person who is a mortgagee, but receives theprofits in a different character, may be found in the books. [Blennerhassett v.Day 2 Ba. & Be. 104 at p. 125 (1811) where a mortgagee took possessionunder a forfeiture, and Page v. Linwood 4 Cl. & F. 399 (1837) where amortgagee entered into possession as lessee. See also Kara-mal v. Imdad 7 AgraS. D. (1852) and Khadim v. Sheo Manraj 9 Agra S. D. 164 (1854)]. In the casebefore us, the mortgagees had no other character in which they could claim tobe in possession. The principle, therefore, applies that the mortgagor isentitled to credit for every sum realised by the mortgagees out of a mortgagedproperty. This principle is based as was pointed out by Mr. Justice Story inGordon v. Lewis 2 Sumner 143 ; 10 Fed. Cas. 807 (1835) on the doctrine that amortgagee shall not get any advantage out of the mortgage fund beyond principaland interest. [Goubbins v. Creed 2 Sch. & Lef. 218 (1804)]: in other words,in the view of a Court of Equity, the rents and profits are incidents de jureto the ownership of the equity of redemption, and the mortgagee in possessionis bound to apply whatever profits he actually receives towards thesatisfaction of the mortgage-debt. An instructive illustration of theapplication of this doctrine is to be found in the case of Dexter v. Arnold 2Sumner 108 ; 7 Fed. Cas. 597 (1834). There a mortgagee in possession hadtransferred a portion of the mortgaged premises as If he were the absolute ownerthereof, and received a large sum of money. When the mortgagor soughtredemption, he claimed the benefit of the sum obtained by the mortgagee by thesale. The mortgagee contended that he had received the sum by a wrongful act,and was not bound to include it in the mortgage accounts. Mr. Justice Storyoverruled this contention, and held that as the mortgagor was prepared to adoptthe transactions if it had been made with his consent, he was entitled to thebenefit of the sum wrongfully received by the mortgagee. In the case before usthe mortgagees have improperly collected the cesses from the tenants. Themortgagor has not repudiated these transactions, he has not sought to make thetenants liable on the ground that the payments had been made to a person notauthorised to collect them on his behalf as proprietor. Under thesecircumstances, it is, in our opinion, but just that the mortgagor should beallowed credit for these sums. The view we take is not opposed to the decisionsin Nawal Kisore v. Inait Ali 7 Agra S. D. 248 (1852) and Sujat Ali v. Dut Ram 8Agra S. D. 178 (1853). In the first of these cases, the mortgagee in possessionhad collected from the tenants sums not legally payable by them because theywere in the nature of illegal cesses. The Court held that, as a general rule,it was equitable to give the mortgagor credit for every sum entered in theaccount rendered by the mortgagees as realised and not to allow the latter torepudiate any of these items on the plea that they were illegal cesses. In thesecond case, the Court held that, under similar circumstances, as themortgagees had not entered the illegal cesses in the accounts kept by them, themortgagee was not entitled to claim them. This distinction obviously cannot besupported on principle. If it were recognised, the result would be that themortgagee who honestly admitted that he had recovered the illegal cesses wouldbe liable, whereas the mortgagee who was unscrupulous enough to deny that hehad realised them would escape liability. The liability, in our opinion, oughtto depend upon the nature of the sums collected and the character in which theywere realised. Tested from these points of view, the case before us isreasonably free from difficulty. In the first place, the Defendants were inpossession as mortgagees: no other character could be attributed to them. Whilethey were entitled to intercept the rents payable by the tenants, they alsorealised, no doubt improperly and without the assent of the mortgagor, the sumspayable as cesses. But they found themselves able to do so only because theyhad been placed in possession as mortgagees. But for their character asmortgagees, they would have had no access to the tenants, and would not havebeen able to collect any sums at all from them. In the second place, the sumsrealised were payable by the tenants by reason of their occupation of the land;it was a statutory liability imposed upon them, calculated upon the annualvalue of the lands. The essence of the matter, therefore, is that themortgagees who had as such got into possession and who were entitled under themortgage contract to collect the rents took advantage of their position asmortgagees to collect other sums from the tenants payable by the latter intheir character as tenants not to the mortgagees but to the mortgagor. In ouropinion, there can be no doubt, under these circumstances, that the mortgageesare liable to account for the profits received. Some analogy is furnished by avery different class of cases in which it has been held that a trespasser whohas been unlawfully in occupation of land is bound to account not merely forthe rents and profits but also for whatever sums he may have collected even byany wrongful means ; [see, for instance, Chunder Coomar v. Kashee Nath 5 W. R.Mis. 37 (1866) where a trespasser was made liable, not only for the ordinaryrents and profits, but also for what he had collected from the tenants bywrongful extortion, and Buneead Singh v. Sudaseeb Dutt 2 W. R. Mis. 50 (1865)where a trespasser was made liable for value of trees cut down and appropriatedby himself; see also Moyi v. Avuthramar I. L. R. 22 Mad. 197, 200 ; 8 Mad. L.J. 273 (1898). But in the case of In re Radha Mohan Ghosh 1 Beng. S. D. Sum.Cm. 75 (1846) a different view was taken and it was ruled that illegalcollections cannot be taken into account in the adjustment of mesne profits].No doubt these cases are much simpler, because the wrong-doer receiveswrongfully whatever he realises, whereas in the case before us the receipt ofthe rent by the mortgagees is lawful, but the realisation of the cesses isunlawful. For the reasons stated, however, we are of opinion that therealisation of the rents as well as the cesses stands on the same footing, andthe mortgagees are not entitled to set up as a defence that they have collectedthe cesses as trespassers and are not bound to include them in the mortgageaccounts. [Narsingh v. Lukputty I. L. R. 5 Cal. 333 (1879), Ramnath v.Brahmamoyi 1 C. L. J. 531 (1905); see also Nogendrabala v. Gurudoyal I. L. R.30 Cal. 101 [LQ/CalHC/1902/48] : s. c. 7 C. W. N. 535 (1903), which shows that the agent of alandlord is bound to account for illegal cesses collected from tenants, thoughthe contrary view may possibly be supported by Nobin Chunder v. Gooroo Gobind 14W. R. 447 (1870), [explained in Nobin v. Gooroo 25 W. R. 8 (1875)]. The secondobjection taken by the Appellants must consequently be overruled. The result,therefore, is that this appeal is allowed and the decree of the District Judgedischarged. The case is remanded to him in order that he may rehear the appeal.He will first consider whether the arrangement alleged by the Defendants forpayment of the annual profit of Rs. 10-1-3 has been established on the evidence; if it has been proved, the mortgagor is not entitled to claim any credit onthis amount; if it has not been proved, the mortgagor is entitled to have theamount with interest thereon at six per cent, per annum set off against theprincipal sum. In so far as the cesses are concerned, we affirm the finding ofthe District Judge that the Defendants have realised them, and the Plaintiff isentitled to credit to that extent with similar interest on the sums realisedwhen the mortgage accounts are taken. The costs of this appeal will abide theresult.

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Ramavatar Singh and Ors. vs. Tulsi Prosad Singh (21.07.1911- CALHC)