ASSAR ALI KHAN Vs. BAIJNATH PRASAD

JUDGEMENT

(1.) THIS is defendant's appeal.

(2.) THE house in dispute belonged to one Mohd. Ali Khan. On August, 22, 1958 Mohammad Ali Khan executed a mortgage by conditional sale in respect of this house in favour of Lakshmi Ram for consideration of Rs. 1300/- payable with interest at the rate of 1% per mensum. Lakshmi Ram made transfer of his interest as mortgagee in favour of Hardeo Prasad on Feb. , 3, 1960 for a sum of Rs. 1525/- Hardeo Prasad instituted suit No. 602 of 1961 against the heirs of Mohammad Ali Khan, the mortgagor for foreclosure claiming recovery of the mortgage amount. Preliminary decree was passed in his favour on Nov. , 29, 1962 for a sum of Rs. 2472. 25 and the time granted to the judgment-debtor for the payment was up to May 29, 1963. This was, it appears, extended subsequently but the judgment-debtor the defendants were unable to discharge the decretal amount which was to be paid up to Nov. 19, 1963. THE equity of redemption relating to this mortgage was transferred by the defendants to Jamuna Prasad on Oct. , 29, 1963 for a sum of Rs. 6000/ -. Out of the sale consideration Jamuna Prasad made payment of Rupees 2472. 25 to Hardeo Prasad the decree-holder on Nov. , 6, 1963 and in this manner the decree was satisfied. THEreafter the defendants Nos. 1 and 2 brought original suit No. 1217 of 1964 against Jamuna Prasad contending that they were minors and the sale dated Oct. , 29, 1963 was made without authority for and on their behalf. It was claimed that their interest to the extent of half in the house could not be conveyed to Jamuna Prasad under this instrument. This suit was decreed for cancellation of the said deed of sale on Aug. , 31, 1966 in respect of half share belonging to the defendants 1 and 2. Jamuna Prasad instituted the suit giving rise to this appeal on Sept. , 15, 1966 in recover the sum of Rs. 1236. 12 pertaining to the share of the defendants 1 and 2 besides Rs. 423. 88 as interest. THE plaintiff Jamuna Prasad died on Jan. 16, 1969 and the suit has been pressed by his legal representatives substituted on the record. THE defendants 1 and 2 contested the suit pleading that the sale dated Oct. 29, 1963 was void and they are not under liability to the plaintiff for any part of the said amount.

(3.) UPON reference to the deed of sale dated Oct. 29, 1963 executed in favour of Jamuna Prasad it is manifest that the decretal amount was left in the hands of the vendee as part of the sale consideration for the purpose of being paid of to the decree-holder namely, Hardeo Prasad. The mechanical process of payment is not so material if it is known definitely as in the instant case as to whom the money belonged and whose money it was that was being paid. Where as in the instant case the money is paid by the mortgagee out of the money left in his hand by the mortgagor; it is a money belonging to the mortgagor and not the money belonging to the mortgagee. The test applied is as to whom the money belonged which is paid. If the vendee or the mortgagee has taken the property and undertaken as a part of the sale consideration or the mortgage money to discharge a prior debt he is making the payment out of the money which really belongs to the transferor and is not paying the money which belongs to him; (See Hira Singh v. Jai Singh, AIR 1937 All 588 (FB) ). Reference in this connection may also be made to the decision of the Privy Counsel in Lala Man Mohan Das v. Janki Prasad (AIR 1945 PC 23 ). Para 3 of S. 92 of the Transfer of Property Act says that a person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the right of the mortgagee if the mortgagor has by a registered instrument agreed that such person shall be so subrogated. In the case of Lala Man Mohan Das the Privy Council pointed in reference to this provision contained in S. 92 of the Transfer of Property Act that a right of subrogation can be claimed by the vendee only if the mortgagor has by a registered instrument agreed that he shall be so subrogated. There is admittedly no such agreement entered into in the instant case. The decretal amount in the present case was paid by Janki Prasad from out of the sale consideration which was left in his hands by the vendors upon the execution of the deed of sale dated Oct. 29, 1963 and as held in the case of Mahesh Lal v. Mahant Bawan Das, (1883) ILR 9 Cal 961 (PC) cited with approval by their Lordships in the Full Bench decision in Hira Singh (AIR 1937 All 588) (supra) the vendee was in such a case taken to have paid all the amount for and on behalf of the mortgagors out of the sale consideration without being entitled for that reason to subrogation. The mortgagor in other words entrusted the vendee with that part of the sale consideration for the specific purposes of the same having paid to Hardeo Prasad the mortgagee and no question of subrogation in favour of Jamuna Prasad arises on this count.