1. This is an appeal on behalf of the Defendants in an action commenced by the Plaintiff-Respondent for redemption of a usufructuary mortgage. The case for the Plaintiff is that, on the 23rd June 1877, his father executed a usufructuary mortgage for nine years in favour of the Defendants or their predecessors for a sum of Rs. 1,400. Under the terms of of the mortgage deed, the mortgagees were to take possession of the premises, and apply the profits in the manner following, that is, pay Rs. 1940 as the Government revenue and Rs. 10-1-3 as profit to the mortgagor, and take the balance, which was assumed to be Rs. 58-8.0, in lieu of interest on the mortgage money at the rate of Rs. 3-12-0 per cent. per annum. It was further stipulated that if as a matter of fact the total income exceeded the assumed amount, namely, Rs. 81-13-3, the mortgagees would be entitled to appropriate the excess on account of their labour and exertion. The substance of the transaction, therefore, was that the mortgagees would pay to the mortgagor an annual sum of Rs. 10,1-3, and apply the balance in payment of revenue charges and interest on the mortgage debt. The Plaintiff alleges that the mortgagees never paid the annual profit, and had, on the other hand, appropriated the sum annually collected by them from 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 be allowed 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 mortgage money before redemption can be allowed, because they have uniformly paid the profit to the mortgagor and have never collected any sum from the tenants on account of cesses. In so far as the payment of the profit to the mortgagor is concerned, however, the Defendants do not assert that the sums were paid in cash, but they allege that in October or November 1877 the mortgagor was placed in possession of a portion of the mortgaged properties, and it was agreed between the parties that, as the consideration for this transaction, the mortgagor would pay the mortgagees the sum of Rs. 10-1-3 annually, in other words, according to the mortgagees, the sum in question has not been paid in cash to the mortgagor, but the latter has been placed in possession of a part of the mortgaged premises, the income whereof is sufficient to wipe out the annual debt. The Court of first instance found upon both the points in favour of the Defendants. The Subordinate Judge held that the subsequent transaction alleged by the mortgagees had been established on the evidence, and that the Defendants had not collected cesses, or indeed, any sum in excess of the rent from the tenants. In this view, the Subordinate Judge made a decree for redemption 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 the redemption thereof. Upon appeal the learned District Judge has modified this decision. Upon the first question he has held that the Defendants are not entitled to adduce oral evidence to prove the transaction alleged by them, and in 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 has held that the Defendants mortgagees have collected cesses from the tenants and have retained them ; in this view, he has held that the Plaintiff is entitled to redeem the mortgage upon payment of only Rs. 317-15-1. The Defendants have now appealed to this Court and, on their behalf, the decision of the District Judge has been challenged on two grounds, namely, first, that the Defendants were entitled to prove by oral evidence the arrangement alleged to have been made between the parties for the payment of the annual profit of Rs. 10-1-3 to the mortgagor, and, secondly, that, even on the assumption that the Defendants have realised cesses from the tenants, the Plaintiff is not entitled to claim these sums in the course of the accounts in a redemption suit, because if the Plaintiff were now to institute a suit for recovery of the money alleged to have been improperly appropriated by the mortgagees, his claim would be successfully met by the plea of limitation, except with regard to the cesses for the three years immediately preceding the suit. In our opinion, the first contention 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 that the arrangement alleged by them was not in variation of the terms of the original usufructuary mortgage, and that, in substance, it was only a mode of payment 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 never repudiated the terms of the mortgage, they have never denied that they were bound, under its terms, to pay to the Plaintiff the sum fixed as annual profits. Their contention is that they have made the payment, not in cash, but by placing at the disposal of the mortgagor the profits of a portion of the mortgaged premises. The arrangement, therefore, was not in supersession or even variation of the mortgage: it was made on the assumption that the mortgage was a valid transaction in its entirety. The decisions upon which the District Judge has placed reliance are clearly distinguishable. In Khoda Buksh v. Alimunissa I. L. R. 27 All. 313 (1904), the Court was called upon to consider the 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 has any application to the case before us, plainly does not assist the contention of 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 been granted its terms cannot be varied by a parol agreement between the parties. In that case the effect of the oral agreement alleged was to modify the terms of the mortgage contract in essential particulars, as it purported to reduce the amount recoverable under the deed, take away the right of sale, and provide for the payment of the reduced debt by a sale of property not included in the mortgage" transaction. The case before us is manifestly of an entirely different description and falls within the principle of the decision in Gopal Singh v. Laloo Lall 10 C. L. J. 27 (1909). The essence of the matter is as pointed out by the Judicial Committee in Sah Lal Chand v. Indrajit I. L. R. 22 All. 370 : s. c. 4 C. W. N. 485 (1900) that the Indian Evidence Act does not say that no statement of facts in a written instrument may be contradicted, but only that the terms of the contract may not be varied, added to, subtracted from, 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 or vary the terms of the mortgage contract ; they merely seek to show that the sum, 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 of the District Judge upon this point cannot, therefore, be supported, and the case must be remanded for further consideration, because, although the District Judge has indicated that he was not quite satisfied with the evidence as to the alleged agreement, he has not reversed the clear and definite finding of the original Court that the agreement has been satisfactorily established. The first 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 by the District Judge to have been collected by them on account of cesses from the tenants in occupation of the mortgaged premises. It has been contended in substance that such sums have been collected by them not as mortgagees, but as trespassers, 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 limitation with regard to a considerable portion of the claim. Before we examine the soundness of this position, it is necessary to observe that at the time of the mortgage contract in 1877 cesses were not payable by the tenants to their landlord, the liability was first imposed by the Bengal Cess Act, 1880. When, therefore, the proprietor granted the mortgage, he did not and could not anticipate that the mortgagees would be in a position to realise from the tenants any sums in excess of the actual rents. It appears that after the statutory liability had been imposed on the tenants the usufructuary mortgagees in possession collected from them, not merely the rents, but also the cesses. The result, therefore, has been that, while the mortgagor as proprietor had paid the cesses to the Collector, the sums recoverable by them from the tenants in that behalf have been intercepted by the mortgagees in possession. The question arises whether under these circumstances the mortgagees are not bound in the mortgage account to credit the mortgagor with the sums thus improperly realised by them. Upon an examination of the mortgage contract, it is, we think, fairly clear that the parties did not intend that any accounts should be taken at the time of redemption. They arbitrarily fixed the income of the property, and settled the amount to be paid therefrom on account of Government demands and interest 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 by both sides, the mortgagor, upon payment of the principal sum alone, would become entitled to redeem the property. The contingency, however, which has happened, is that the mortgagees have collected from the tenants sums which were 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 Transfer of Property Act provides in cls. (g) and (h) that the mortgagee in possession is to account for all sums received by him as mortgagee, in other words, if a mortgagee in possession has received profits from the mortgaged property in an altogether different character, he cannot be called upon to account for them. Instances of possession by a person who is a mortgagee, but receives the profits 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 possession under a forfeiture, and Page v. Linwood 4 Cl. & F. 399 (1837) where a mortgagee entered into possession as lessee. See also Kara-mal v. Imdad 7 Agra S. D. (1852) and Khadim v. Sheo Manraj 9 Agra S. D. 164 (1854)]. In the case before us, the mortgagees had no other character in which they could claim to be in possession. The principle, therefore, applies that the mortgagor is entitled to credit for every sum realised by the mortgagees out of a mortgaged property. This principle is based as was pointed out by Mr. Justice Story in Gordon v. Lewis 2 Sumner 143 ; 10 Fed. Cas. 807 (1835) on the doctrine that a mortgagee shall not get any advantage out of the mortgage fund beyond principal and 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 jure to the ownership of the equity of redemption, and the mortgagee in possession is bound to apply whatever profits he actually receives towards the satisfaction of the mortgage-debt. An instructive illustration of the application of this doctrine is to be found in the case of Dexter v. Arnold 2 Sumner 108 ; 7 Fed. Cas. 597 (1834). There a mortgagee in possession had transferred a portion of the mortgaged premises as If he were the absolute owner thereof, and received a large sum of money. When the mortgagor sought redemption, he claimed the benefit of the sum obtained by the mortgagee by the sale. 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 Story overruled this contention, and held that as the mortgagor was prepared to adopt the transactions if it had been made with his consent, he was entitled to the benefit of the sum wrongfully received by the mortgagee. In the case before us the mortgagees have improperly collected the cesses from the tenants. The mortgagor has not repudiated these transactions, he has not sought to make the tenants liable on the ground that the payments had been made to a person not authorised to collect them on his behalf as proprietor. Under these circumstances, it is, in our opinion, but just that the mortgagor should be allowed credit for these sums. The view we take is not opposed to the decisions in Nawal Kisore v. Inait Ali 7 Agra S. D. 248 (1852) and Sujat Ali v. Dut Ram 8 Agra S. D. 178 (1853). In the first of these cases, the mortgagee in possession had collected from the tenants sums not legally payable by them because they were 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 the account rendered by the mortgagees as realised and not to allow the latter to repudiate any of these items on the plea that they were illegal cesses. In the second case, the Court held that, under similar circumstances, as the mortgagees had not entered the illegal cesses in the accounts kept by them, the mortgagee was not entitled to claim them. This distinction obviously cannot be supported on principle. If it were recognised, the result would be that the mortgagee who honestly admitted that he had recovered the illegal cesses would be liable, whereas the mortgagee who was unscrupulous enough to deny that he had realised them would escape liability. The liability, in our opinion, ought to depend upon the nature of the sums collected and the character in which they were realised. Tested from these points of view, the case before us is reasonably free from difficulty. In the first place, the Defendants were in possession as mortgagees: no other character could be attributed to them. While they were entitled to intercept the rents payable by the tenants, they also realised, no doubt improperly and without the assent of the mortgagor, the sums payable as cesses. But they found themselves able to do so only because they had been placed in possession as mortgagees. But for their character as mortgagees, they would have had no access to the tenants, and would not have been able to collect any sums at all from them. In the second place, the sums realised were payable by the tenants by reason of their occupation of the land; it was a statutory liability imposed upon them, calculated upon the annual value of the lands. The essence of the matter, therefore, is that the mortgagees who had as such got into possession and who were entitled under the mortgage contract to collect the rents took advantage of their position as mortgagees to collect other sums from the tenants payable by the latter in their character as tenants not to the mortgagees but to the mortgagor. In our opinion, there can be no doubt, under these circumstances, that the mortgagees are liable to account for the profits received. Some analogy is furnished by a very different class of cases in which it has been held that a trespasser who has been unlawfully in occupation of land is bound to account not merely for the rents and profits but also for whatever sums he may have collected even by any 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 ordinary rents and profits, but also for what he had collected from the tenants by wrongful 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 appropriated by 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 illegal collections cannot be taken into account in the adjustment of mesne profits]. No doubt these cases are much simpler, because the wrong-doer receives wrongfully whatever he realises, whereas in the case before us the receipt of the rent by the mortgagees is lawful, but the realisation of the cesses is unlawful. For the reasons stated, however, we are of opinion that the realisation of the rents as well as the cesses stands on the same footing, and the mortgagees are not entitled to set up as a defence that they have collected the cesses as trespassers and are not bound to include them in the mortgage accounts. [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 : s. c. 7 C. W. N. 535 (1903), which shows that the agent of a landlord is bound to account for illegal cesses collected from tenants, though the contrary view may possibly be supported by Nobin Chunder v. Gooroo Gobind 14 W. R. 447 (1870), [explained in Nobin v. Gooroo 25 W. R. 8 (1875)]. The second objection taken by the Appellants must consequently be overruled. The result, therefore, is that this appeal is allowed and the decree of the District Judge discharged. 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 for payment 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 on this amount; if it has not been proved, the mortgagor is entitled to have the amount with interest thereon at six per cent, per annum set off against the principal sum. In so far as the cesses are concerned, we affirm the finding of the District Judge that the Defendants have realised them, and the Plaintiff is entitled to credit to that extent with similar interest on the sums realised when the mortgage accounts are taken. The costs of this appeal will abide the result.
