BRAHM PARKASH Vs. MANBIR SINGH AND ORS.

JUDGEMENT

(1.) THESE three appeals, which are before us on certificates of fitness granted by the High Court of Punjab, arise out of two suits for the recovery of amounts due on mortgages executed by one Mohinder Singh who was a contractor in Delhi. Mohinder Singh is now deceased and is now represented in these proceedings by his widow and son. Mohinder Singh owned as many as eight properties in Delhi and over one or other of these he created successively 24 mortgages between September 1943 and July 1944 and also executed a sale in respect of one item of these properties. The contentions urged in these appeals arise out of conflicts between the rights of some these mortgagees inter se, between some of them and the purchaser of one of the properties. It is however unnecessary for the purpose of deciding these points to set out the details of every one of these several mortgages or their history.

(2.) APPEALS 77 and 78 may first be considered. The facts necessary to appreciate the sole point raised by Mr. Achhru Ram, learned Counsel for the appellant - Jagdish Chand are these : The property concerned in the two appeals is plot No. 1, Pusa Road in Block 34 with a bungalow thereon. A mortgage for Rs. 10,000/ - was created over this and certain other properties (we are, however not concerned with these other properties) in favour of one Lajwanti by Mohinder Singh by a deed dated October 19, 1943. A few days later - on November 7, 1943 - another mortgage was executed in her favour for Rs. 16,000/ - under which the property No. 1, Pusa Road was given as security. Passing over certain intermediate transactions not material for the purposes of the present appeals, a mortgage was created in favour of one Daulatram Narula inter alia on this property on January 21, 1944 to secure a sum of Rs. 60,000/ -. Two days later - on January 23, 1944 - the appellant, Jagdish Chand, lent a sum of Rs. 10,000/ - to Mohinder Singh and had a mortgage executed on No. 1, Pusa Road. Daulatram Narula, the mortgagee under the deed dated January 21, 1944 obtained two further mortgages over the same property and others on February 25, 1944 and March 14, 1944, the first for Rs. 9,500/ - and the second for Rs. 10,000/ -. It ought to be mentioned that the consideration for several of the mortgages referred to earlier was in part a payment in cash to the mortgagor and in part repayment in part satisfaction of previous mortgages, but this circumstance not being of any relevance we are not setting out the details of the consideration for the several mortgages. Lastly, and this is the mortgage which is of importance for the point raised in this appeal, on July 13, 1944, Mohinder Singh created in favour of Pandit Sham Sunder an usufructuary mortgage for Rs. 1,25,000/ - out of which Rs. 84,000/ - was reserved with the mortgagee for payment to Daulatram Narula the sum representing the principal and interest due on his three mortgages. It is common ground that on the date when the mortgage was registered Sham Sunder carried out his obligation and discharged the mortgages of Daulatram by paying him Rs. 84,000/ -.

(3.) IN these two suits the genuineness of the several mortgages was not seriously disputed and the only point on which contest was centered was as regards the respective rights of the several mortgagees inter se. We are concerned in these two appeals with the claim made by the legal representatives of Sham Sunder that they were entitled by reason of their discharging the mortgages -debt of Daulatram to whom they had paid Rs. 84,000/ - out of the mortgage amount of Rs. 1,25,000/ - to be subrogated to the rights and priorities of Daulatram under the mortgage dated January 21, 1944 for Rs. 60,000/ - as against the later mortgage of January 23, of Jagdish Chand even though there was no agreement in writing under which he stipulated for such a right. This contention was raised both in the suit by Lajwanti as well as in Mukhamal's suit. It was contended on their behalf that though the Transfer of Property Act did not in terms apply, yet the equitable principle underlying its s. 92 viz., the right of a secured creditor who had discharged a prior encumbrance to be subrogated to the rights and priorities of the mortgagee who he had redeemed , could nevertheless be invoked under s. 6 of the Punjab Laws Act. The learned trial Judge, however, while acceding to this in principle, held on the basis of certain authorities to which he referred that in the absence of a specific agreement stipulating for subrogation the subsequent mortgagee was not entitled to such an equity. On this ground the right of the subrogation claimed by the legal representatives of Sham Sunder was rejected. From the rejection of this claim in the two suits Sham Sunder's representatives preferred two appeals to the High Court and the learned Judges allowed the appeal holding that it was not an essential condition for claiming the right of subrogation that the creditor redeeming the mortgage should have entered into an express agreement to that effect. It is from this decision of the High Court that these two appeals have been preferred.