Dawson-Miller, C.J:— These two appeals arise out of two suits numbered 38 and 39 of 1916 which were tried together before the Subordinate Judge of Palamau. In the former suit Hara Pershad Sahu and others, the representatives-in-interest of Dhanukdari Sahu deceased, sued Prabhu Dayal Singh and his brother Amar Dayal Singh, members of a joint family governed by the Mitakshaia law, to recover the principal and interest due on a mortgage bond, executed by Prabhu Dayal Singh alone in favour of Dhanukdari on 17th April, 1909 corresponding to 12th Baisakh 1316 F.S By the terms of the bond an 8 annas share out of 16 annas in Tola Semaria, mauza Narainpur, belonging to the joint family was hypothecated to secure a loan of Rs. 3,000 advanced to Prabhu Dayal Singh. The amount claimed in the suit was Rs. 5,357-8-6 for principal and interest after giving credit for two sums amounting in all to Rs. 2,591-9-3 due from the plaintiffs in that suit to the defendants as Chaudharana or rent of Bazar Garhwa of which the plaintiffs were lessees and the defendants part proprietors.

2. In the second suit Amar Dayal Singh and his brother Prabhu Dayal Singh sued Har Pershad Sahu and Dost Muhammad Sheikh to recover a sum of rupees 4,470-12-6, made up of Rs. 2,893-7-3 for Chaudharana of the said Bazar for the first nine months of 1914 and Rupees 1,577-5-3 interest thereon at 2 per cent per month.

3. In the former suit Amar Dayal alone appeared and filed a written statement. He raised several pleas in defence. His case so far as it is material to this appeal, is that he was the elder brother and karta of the family and that his brother Prabhu Dayal had no right to mortgage the family property or any portion of it without his consent, the bond not having been executed for any necessity of the joint family or to secure an antecedent debt. He further alleged that Prabhu Dayal was a minor when he executed the bond. He also contested the plaintiffs' right in a suit of this nature to treat their liability for Chaudharana as extinguished by setting off a proportionate amount of the defendants' liability under the bond and denied that any permission to do so had been given. The plaintiffs thereupon petitioned the Court to be allowed to amend their claim by adding thereto the sum of Rs. 1,295-8-0, Amar Dayal's proportionate share of the Rs. 2,591 credited for Chaudharana in the plaint. The defence to the second action was that the principal sum of Rs. 2,893 claimed had been discharged by certain payments made to or on behalf of the plaintiffs, viz., Rs. 285-13-0 deposited at the Daltonganj khas mahal office for dasan or repairs and improvements due from the plaintiffs in that suit, Rupees 2,591 due from the plaintiffs for interest under the mortgage and alleged to have been paid to Dhanukdari, Rs. 6 paid in cash to the plaintiffs, and another item of one gold mohur, amounting in all to more than the principal sum claimed. They denied shat any interest was due or payable.

4. The learned Subordinate Judge found that the loan was not made for joint family purposes and that Amar Dayal, who was the elder brother and karta of the family, did not consent to the execution of the bond and was not bound by it. These findings have not been challenged in this appeal. He further found that on the authority of Sudaburt Pershad Sahoo v. Foolbash Koer(1), one member of a joint Mitakshara family could not validly mortgage his share of the joint family property. He considered however that the mortgagees in such a case had a lien or equitable charge on the 8 annas share mortgaged by Prabhu Dayal and were entitled to sell the said share in order to realize their dues. For this finding he relied on the authority of Mahabeer Persad v. Ramyad Singh(2) and Madho Pershad v. Mehrban Singh(3). In estimating the amount due, he accepted the plaintiffs' evidence that an agreement had been come to between the parties to sat off the Chaudharana against the interest due under the mortgage, but, for some reason not vary clear allowed only Prabhu Dayal's share to be set off against the mortgage debt.

5. Of the Rs. 2,893-7-3 payable to Prabhu Dayal and his brother for Chaudharana, he found that Rs. 285-13.0 had already been paid for their account by the plaintiffs for dasan leaving a balance of Rs. 2,607-10-0 due to the two brothers half of which, amounting to Rupees 1,303-13-0, was payable to Prabhu Dayal as his share and this he considered as discharged by giving credit for it in the mortgage suit. As however the plaintiffs in that suit had given credit for Rs. 1,511-9-3 in their plaint as originally filed, he found that they were entitled to roughly, Rs. 200 more than the sum claimed and assessed the amount of the decree, for which the plaintiffs should have a charge on Prabhu Dayal's undivided share at Rs. 5,556.

6. In the second suit, on the same principle, he found that Rs. 1,303-13-0 was due to Amar Dayal as his share of the Chaudharana and awarded him that sum together with interest at 12 per cent per annum amounting in all to Rs. 1,675.

7. From this decision Amar Dayal and Prabhu Dayal Singh have entered appeals in each of the suits and contend, as to the first, that the learned Judge was wrong in holding that the mortgagees had an equitable lien or charge on the mortgagor's share in the joint property. They further contend that Prabhu Dayal was a minor at the date when the mortgage was executed. As to the second suit they contend that, the share of both the brothers in the Chaudharana should have been decreed, and that the plea of set off should not have been upheld.

8. The main question which was argued before us was as to the legal effect of the mortgage of joint family property executed by one member of a joint family to secure an advance made for his own purposes and unconnected with the family needs.

9. The learned Judge did not find that any special circumstances existed, such as were relied on in the case of Mahabeer Pershad v. Ramyad Singh, creating an equitable lien or charge on the mortgaged property, nor were the mortgagees in possession of the property as in that and other cases relied upon by the respondents.

10. It becomes necessary to consider the cases relied on, in the light of subsequent decisions, to see how far they afford any authority for the proposition put forward by the respondents that a mortgage made by one member of a joint Mitakshara family for his own purposes and without the consent of the other members, where no antecedent debt or family necessity exists, creates a charge or lien on the mortgagor's undivided interest or gives the mortgagee any right to compel a partition in order to enforce his security. Mahabeer Pershad's case, was decided in the High Court at Calcutta in 1873 by Phear and Ainslie, JJ., the latter expressing a somewhat hesitating assent to the judgment of his colleague. In the same year, in the case of Jugdeep Narain Singh v. Deendayal Lal(4), the same learned Judges set aside a sale of joint family property held in execution of a decree for money based on a mortgage bond and refused to give the mortgagee-purchaser a lien on the property.

11. In that case the father of the plaintiff, with whom he was joint in estate, executed a mortgage of a share in the family property in favour of the defendant Deendyal, to secure repayment of a loan for which no family necessity was proved. The mortgagor having defaulted, was sued on the bond by the mortgagee, Deendayal, who obtained a money decree for the amount secured and in execution put to sale and purchased the mortgagor's interest in other family property of the plaintiff and his father not cohered by the bond. The plaintiff sued to set aside the sale making his father and the mortgagee purchasers defendants. The Court, in setting aside the sale, refused to give the mortgagee a charge or lien on the mortgagor's undivided share, on the ground that there were no special circumstances warranting the application of the principle applied in Mahabeer Pershad's case. On appeal to the Privy Council, their Lordships distinguished the case of a voluntary alienation from an attachment and sale of the judgment-debtor's interest in execution of a decree and although they upheld the right of the plaintiff to set aside the sale, declared that the execution-purchaser acquired the share and interest of the mortgagor in the property and was entitled to take such proceedings as he should be advised to have that share and interest ascertained by partition: see Deendyal Lal v. Jugdeep Narain Singh(5). It is important to notice that in that; case their Lordships did not think it right to express any dissent from the ruling of the High Court in Sudaburt's case as to voluntary alienations and added,

“but however nice the distinction between the rights of a purchaser under voluntary conveyance and those of a purchaser under an execution sale may be, it is clear that a distinction may, and in some cases does, exist between them.”

12. It is sfficiens to instance the seizure and sale of a share in a trading partnership at the suit of a separate creditor of one of the partners. The partner could not himself have sold his share so as to introduce a stranger into the firm without the consent of his co-partners, but the purchaser at the execution sale acquires the interest sold, with the right to have the partnership accounts taken in order to ascertain and realize its value.

“It seems to their Lordships that the same principle may and ought to be applied to shares in a joint undivided Hindu estate.”

13. That decision does not establish the contention that a mortgagee, in circumstances such as the present, acquires any right, equitable or otherwise, against the undivided share of his mortgagor in cases where there has been no attachment and sale by legal processes.

14. In Suraj Bunsi Koer v. Sheo Parsad Singh(6), decided by the Judicial Committee in 1879, their Lordships drew a distinction between the rights of co-parceners in a Hindu family consisting of a father and his sons and those of a like family consisting of undivided brothers, the sons being affected by the obligations of Hindu law to pay their father's debts, an obligation which does not exist in the case of brothers. They further laid down the following propositions:

“First; that, where joint ancestral property has passed out of a joint family, either under a conveyance executed by a father in consideration of an antecedent debt, or in order to raise money to pay of an antecedent debt, or under a sale in execution of a decree for the father's debt, his sons, by reason of their duty to pay their father's debts, cannot recover that property, unless they show that the debts were contracted for immoral purposes, and that the purchasers had notice that they were so contracted; and, secondly, that the purchasers at an execution sale, being strangers to the suit, if they have not notice that the debts were so contracted are not bound to make inquiry beyond what appears on the face of the proceedings.”

15. That also was a case in which the property had been purchased at an execution sale in pursuance of a decree obtained against the deceased father of the plaintiffs, the purchaser in that case being a stranger to the suit but having notice of the plaintiffs' objection to the sale. Their Lordships held that the property having been attached for the debts of the co-sharer during his lifetimes the sale was good for his share; but as it appeared on the evidence that the debt was one for which, according to Hindu law the other co-sharers could not be made liable, the sale was not good for their shares.

16. In Madho Parshad v. Mehrban Singh, which came before the Judicial Committee in 1890, the authorities were again reviewed.

17. In that case Mehrban Singh and his uncle Zalim Singh were members of a joint family under the Mitakshara law. Salim, for his own benefit without the consent of his nephew who was a minor and without legal necessity, sold to the defendant Madho Parshad by three registered deeds his undivided share in three villages, the joint property of the family. Upon his uncle's death, which occurred shortly afterwards, the plaintiff, through his next friend, sued Madho Parshad for cancellation of the deeds and possession of the property by right of survivorship. The defendant contended that the sale, if set aside, should only be vacated on the terms that he should have a lien on the interest sold for the return of the purchase-money. Lord Watson, in delivering the judgment of the Board, said:

“Any one of several members of a joint family is entitled to require partition of ancestral property, and his demand to that effect, if it be not complied with, can be enforced by legal process. So long as his interest is indefinite he is not in a position to dispose of it at his own hand and for his own purposes, but, as soon as partition is made, he becomes the sole owner of his share, and has the same powers of disposal as if it had been his acquired property. Actual partition is not in all cases essential. An agreement by the members of an undivided family to hold the joint property individually indefinite shares, or the attachment of a member's undivided share in execution of a decree at the instance of his creditor, will be regarded as sufficient to support the alienation of a member's interest in the estate or a sale under the execution.”

18. The judgment then deals with the earlier cases already referred to and points out that in Deendyal's case their Lordships had distinguished the cases of a purchaser by private bargain and at an execution sale. On the principle laid down by Lord Watson the attachment and sale in execution, at the instance of the creditor, was sufficient to support the alienation presumably on the ground that it was tantamount to a separation of the judgment-debtor's interest from that of the other co-parceners. The case of Suraj Bunsi Koer v. Sheo Pershad Singh did not, in Lord Watson's opinion, carry the matter any further. Refering to Mahabeer Persad's case be observes:

“It is unnecessary to decide whether, if Zalim Singh had been still alive, and so entitled to resume his undivided share on cancellation of the sale-deeds, it would have been possible to order partition and to charge Zalim's divided share with the Rs. 10,000 paid to him by the appellant.”

19. The decision is clearly no authority for the proposition that a mortgage of an undivided share of the family property, executed by a member of a joint family without the consent of his co-parceners and not being to secure an antecedent debt or justified by the necessity of the family, confers on the mortgagee any right to proceed against the property even to the extent of the interest of the mortgagor.

20. This question arose and was decided against the mortgagee's contention in the case of Narain Prasad v. Surnarn Singh(7). In that case Surnam Singh and two other persons, the managing members of different joint families, hypothecated their respective rights and interests in certain villages without the consent of their co-parceners to Narain Parasad who sued on the mortgage bond. The defendants were Surnam Singh, the sole survivor of the mortgagors, and the families of all three. Family necessity was not proved nor was there any antecedent debt. Their Lordships, affirming the decision of the Allahabad High Court, declared such a mortgage to be void and further decided that it gave the mortgagee no rights against the karta's interests in the joint family property. It was argued that the mortgage was not void, but only voidable, and that on the principle laid down in Mahabeer Persad's case the mortgagor's interest should be declared available upon partition as security for the bond debt. In delivering the judgment of the Board, Lord Haldane, in referring to Mahabeer Persads case, said:

“On looking at the facts, their Lordships agree with the observation of Mr. Parik that there was very little, if any, evidence of such a representation, but that there was such a representation was the basis of the judgment, and, unless the learned Judges had held that an equity arose out of it, their judgment would have amounted to this that for every mortgage by the head of a joint family the property of the joint family could be made available to the extent of the interest of the mortgagor. Now, whatever may happen, when there are special circumstances, such as there were in the case referred to, that is not the general law. The general law is quite plainly laid down by Lord Watson in delivering the judgment of this Board in the case of Madho Parshad v. Mehrbati Singh.”

21. His Lordship then quoted the passage from Lord Watson's judgment in that case already set out above and added:

“Now these are the principles' which govern this and all other cases of the kind, and, according to these principles, there can be no doubt that the present mortgage is void. There were no such special circumstances, as the learned Judges seem to find in the first case above quoted entitling them to impose terms upon the plaintiffs, and, whether Lord Watson approved that case or not, which is not quite clear, he at all events said that it had no application which would affect the operation of the principles which he laid down as above quoted.”

22. That decision was given in 1917 and has been followed and referred to with approval in two more recent cases which came up for decision before their Lordships' Board: see Anant Ram v. Collector of Etah(8) and Manna Lal v. Karu Singh(9), decided on 29th July last year. In the former case their Lordships refused to give effect to the mortgagee's contention that, although the mortgage debt was not incurred for family necessity, the mortgagor's interest in the family property could be sold in enforcement of the mortgage. In the latter they were prepared to set aside a decree of the Calcutta High Court ordering the father's share of the family property to be sold on partition if the amount found due were not paid within a specified time. This however did not become necessary on the facts found by their Lordships. That was a case where a mortgage was executed by the manager of a joint family. The suit was brought on a bond against the mortgagor and his sons. It was found by the Calcutta High Court that the loans for which the property was hypothecated was not justified by family necessity and that Court dismissed the suit as against the two sons, but ordered, as against the father, that if the amount due were not paid within a specified time his share of the mortgaged property should be liable to be sold on partition. Lord Phillimore delivering the judgment of the Board in that case, said:

“Upon the finding of the High Court this decree was too favourable to the plaintiff and incorrect. The law was finally established no doubt since that decision by this Board in the case of Narain Prasad v. Samara Singh, which determined that a mortgage of the joint family property of a Mitakshara family by its karta (or manager) unless necessity or an antecedent debt is proved, is void; the transaction itself gives to the mortgagee no rights against the karta's interest in the joint family property.”

23. Two other cases, which may be shortly noticed, were called to our attention by the learned counsel for the respondents in support of his contention that the mortgagees were entitled at least to a declaration that the property should be held in specified shares by the co-parcener with a charge or lien upon Parbhu Dayal's shares for the mortgage debt. In the first case Ram Sunder Das v. Barhamdeo Narayan Thakur(10), certain members of a joint family executed a mortgage of a share in family property in favour of the appellant. The mortgagors had apparently represented that the property was their separate property and that they had power to charge it. The mortgagees sued and obtained a decree and proceeded to bring the mortgaged properties to sale. One of the respondents who had a joint interest in the property thereupon brought a suit to have it declared that the property was joint and that the mortgage deed was inoperative. The trial Court found that the property was joint and that the mortgage was not legal and that the specific shares covered by it could not be sold in execution of the decree but that the mortgagees were entitled to sell the right, title and interest of the mortgagors. The mortgagee appealed from this decision to the High Court and contended that the decree should have been for a declaration that the shares of the mortgagors should be specified and that it should be declared to that he had a lien on them. The plaintiff, respondent in the appeal did not contend that the mortgage gave no rights whatever against the mortgagor's share but supported the view of the lower Court that the mortgagor's interests could be sold in execution of the mortgage-decree.

24. The High Court accepted the appellant's contention and, on the ground that the mortgagors had represented that they had power to charge the property, held that they were bound to make good that representation by the exercise of such proprietary right over the property as they possessed, viz., by partition, and ordered that the property should be held by the co-parceners in certain proportions and that the shares of the mortgagors should be held by them subject to the mortgagee's lien for the amount of the mortgage debt. The only question for determination in that case was the form of the decree. The right of the mortgagee to relief in one form or another was assumed without argument. The assumption upon which the judgment is based may possibly be justified on the ground that there was a special representation by the mortgagors. But in view of the decision in Narain Prasad v. Sarnam Singh, it can no longer be regarded as an authority for the proposition put forward on behalf of the respondents in the present case. In the second case: Ram Sundar Das v. Nathuni Singh(11), the respondent a coparcener in a Mitakshara family, executed a mortgage in favour of the appellant. The latter obtained a decree and proceeded to put it in execution. Another member of the family, who was no party to the mortgage then brought a suit for a declaration that the properties covered by the mortgage belonged to a joint Mitakshara family of which he and the mortgagors were members and that consequently, the mortgagors had no authority to execute the mortgage in respect of any definite share of the property and prayed that the mortgage and the decree passed thereon should be declared void and inoperative. The Court declared the mortgage void as against the share of the mortgagors but further ordered that the properties were to be held by the mortgagors and their co-sharer, the plaintiff, in certain specified shares and that the shares of the mortgagors were to be held subject to the lien of the mortgagee for the sum advanced and interest.

25. The mortgagee then prayed for sale of the specific shares of the mortgagors in execution of the decree originally obtained by him. Objection was taken that the decree was incapable of execution on the ground that it had been invalidated by the subsequent decree of the High Court and that the only remedy of the decree holder was to institute a fresh suit to enforce the lien declared by the decree of the High Court. The Subordinate Judge upheld the objection and the mortgagee decree-holder appealed. It was held by the High Court that the mortgagee could bring the shares to sale in execution of his decree and that it was not incumbent upon him to institute a separate suit to enforce the lien. It does not appear from the judgment that any objection was taken to the mortgagee's right to a declaration for a lie and the only question for decision was whether that lien could be enforced by sale of the mortgagors' share in the execution proceedings then pending or whether it was necessary for him to bring a fresh suit. Although in this case also it was assumed that the mortgagee was entitled to a lien on the mortgagors' share the question was not directly in conflict. If and in so far as it is at variance with the decision in Narain Prasad v. Surnam Singh it cannot be regarded as an authority for the respondents' contention.

26. The result of the authorities appears to me to be that a mortgage of the whole or a share of the joint family property of a Mitakshara family unless justified by legal necessity or by an antecedent debt or assented to by the other members of the family, is void and inoperative as against the property hypothecated and gives the mortgagee no rights even against the mortgagor's undivided share. Where however the mortgagors' interest has been separated from that of the other members of the family actual partition by metes and bounds not being essential for this purpose, or where the share has by legal process been attached or sold at the instance of the creditor, it may be come available as security for the mortgage debt. In special circumstances, where the property has already passed into the hands of the mortgagee, the Court if satisfied that the equities of the case require it may in its discretion set aside the alienation upon the terms that the property when restored shall be held in separate shares, the share of the mortgagor being subject to a lien for the mortgage debt and interest.

27. In the facts of the present case, the principle laid down in Narain Prasad v. Surnam Singh appears to be applicable. The suit is one to enforce a mortgage against the joint family property the mortgagors being in possession. No equities can arise as in a case where the property has been sold in execution of the decree or has otherwise passed into the hands of the mortgagees.

28. It was contended however that an intention on the part of the mortgagor to separate from the rest of the family should be inferred from the terms of the mortgage-bond itself, which purports to hypothecate only the mortgagor's interest that is an eight annas share out of the whole property. I am unable to accept this view. In more than one of the cases already mentioned the mortgagor purported to charge his own share and interest only and nowhere was it held that this was any evidence of partition and the evidence of the plaintiffs thamselves in the present case shows that the two brothers were living in commensality and joint in estate at the date when the suit was instituted.

29. One other point which, in view of the conclusion already arrived at, it is perhaps not necessary to determine but which was argued before us may be mentioned. The appellants contended that at the date when the bond was executed Prabhu Dayal Singh was a minor. The evidence given on behalf of the respondents showed that he was about 30 years of age in April 1917. He would therefore be about 22 in April 1909 when the bond was executed. According to Amar Dayal's evidence, his brother was 25 or 26 in April 1917, when his evidence was given, which would make him just over or just under 18 years at the date of the mortgage. His evidence on this point in cross-examination was certainly very unsatisfactory and on some of his answers his brother would appear to have been well over 18 years of age at the date when the mortgage, was executed. The learned Judge was dissatisfied with his evidence and refused to accept it and found that there was no satisfactory evidence that Prabhu Dayal was a minor when he executed the bond. A horoscope however of Parbhu Dayal purporting to be made by one Ram Nandan Ram, who was dead, was tendered in evidence and proved by his son to be in his father's handwriting. If this can be accepted as conclusive, Parbhu Dayal was born in Sraban 1948 Sambat, and would therefore be just under 18 years of age when the bond was executed. The learned Subordinate Judge rejected the horoscope as not being admissible in evidence to prove the date of Prabhu Dayal birth. Section 32 of the Evidence Act, was relied on for the contention that the horoscope was admissible. Under that section written statements made by dead persons are admissible in certain cases, one of the cases being

“when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement has special means of knowledge and when the statement was made before the question in dispute was raised.”

30. Such statements are also admissible when they relate to the existence of any like relationship and are contained in any will or deed relating to the affairs of the family to which the deceased person belonged or in any family pedigree or upon any tomb-stone, family portrait or any thing on which statements are usually made. The question to be decided in the present case would hardly appear to be one of relationship by blood, marriage or adoption. There is no dispute as to the relationship between any of the parties and for Illus. (1) appended to the section I should have taken the view that the horoscope is not admissible for the purpose for which it was tendered. I am constrained to hold that the document is admissible however by reason of the illustration. The question was also considered by Coxa and Beachcroft, JJ., in Monindra Mohan Roy v. Ram Krishna(12), where earlier authorities where reviewed and it was decided that statements as to age made by deceased persons in the circumstances contemplated in the section were admissible. The horoscope however is merely evidence and is not conclusive and in face of the other conflicting evidence in the case I should have been inclined to remand the case for further consideration on this point had such a course been necessary.

31. It follows however from the conclusion arrived at on the other point in the case that the plaintiffs are not entitled to any charge or lien upon the mortgaged property. It was not contended that they were entitled to a personal decree against defendant 1, Prabhu Dayal, the suit having been brought more than six years after the due date of the mortgage. In the result I would set aside the decree of the Subordinate Judge and dismiss Suit No. 38 of 1916 with costs against the respondents here and in the Court below.

32. With regard to the appeal in Suit No. 39 of 1916, it appears, that a sum of Rupees 2,893-7-3 was due from the defendants in that suit for Chaudharana for the year 1914. At that time Prabhu Dayal was under a personal obligation to pay interest by the terms of the bond which then amounted to over Rs. 3,000. The evidence of Hara Pershad, defendant 1 in the suit, is to the offect that the two brothers directed him to retain Rs. 2,591 and some odd annas of the Chaudharana, against the mortgage money and that, under their orders, this amount, actually Rs. 2,591-9-3, as appears from the plaint in the mortgage suit, was set off against the mortgage-money, and that a further sum of Rs. 16 was paid. It was further not disputed that Rs. 285-13-0 were paid for dasan for the lessors' account and could properly be deducted from the rent. These sums together amount to the sum claimed for Chaudharana. If this evidence is believed, the whole Chaudharana was settled in account between the parties and nothing remains due. There was no reason why Amar Dayal, who was the karta of the family, as well as his brother, should not agree to discharge the debt of one of them in this manner out of their joint family funds. Prabhu Dayal did not give evidence. His brother Amar Dayal, it is true, denied that he authorized Hara Pershad to set off the Chaudharana against the mortgage-money. The learned Judge said he believed Hara Pershad but he only allowed him to set off Prabhu Dayal's share of the Chaudharana against the mortgage debt, and entered judgment for the remaining half. Why he gave effect to the agreement to the extent of the half - share of Prabhu Dayal only is not very clear. On his finding it would seem that he ought to have dismissed the suit. Thera is however no appeal from the decree by the defendants. I can see no reason for disbelieving the story of Harprasad. It is also significant in this connexion that no attempt was made to exact payment of the Chaudharana for the year 1914 until 14th September, 1916 when the plaint was filed, that is two days after the mortgage suit was instituted. Accepting, as I do, the story of Hara Pershad, I can see no reason why the plaintiffs should not be bound by the agreement come to that the liability for the Chaudharana should be discharged by setting it off against the interest due at that time under the mortgage. I would dismiss the appeal with costs.

33. Mullick, J.:— I agree.

V.S/R.K

34. Appeal in F.A No. 122 of 1917 allowed.

35. Appeal in F.A No. 26 of 1918 dismissed.