TARA SUNDARI DEBI Vs. KHEDAN LAL SAHU

JUDGEMENT

(1.) This second appeal arises out of a suit on a mortgage bond, dated the 21 December 1900, and the question which has to be decided is one of subrogation. It appears that one Bhagwat Pershad Singh mortgaged his two anna share in Mouzah Pain Kalan to one Narsingh Singh by a bond early in 1886. Narsingh brought a suit on this bond and obtained a decree on the 21 June 1899 for Rs. 850, Bhagwat Pershad's share was put up for sale in execution and after several adjournments the decretal amount was paid off by the plaintiff's husband, the pleader and old friend of the judgment-debtor, by means of a mortgage bond for Rs. 850 to his wife Tara Sundari. The bond recites the necessity for paying off the decree and the fact of its payment, it refers to the mortgage of Narsingh and also specifically mentions one of the three mesne mortgages which the Court of first instance has postponed to plaintiff's mortgage holding that she has the right of subrogation.

(2.) The learned Judge in the lower appellate Court has sot aside this part of the Sub-Judge's judgment on two grounds: first that there was no agreement or intention to keep alive Narsingh's lien and secondly that Tara Sundari was a mere volunteer.

(3.) We have already in a judgment delivered this day in Prayag Narain Kafri V/s. Chedi Rai l4 C.W.N. 1093, note : 7 Ind. Cas. 979 pointed out to this same learned Judge that the principle of subrogation is one based on a presumption of intention which may be supported by circumstances or by evidence of assignment or agreement or both. In this case one mortgagee at least is expressly referred to in the plaintiff's bond and this is the strongest evidence of intention to keep it alive. As regards the other two there is a false statement by the mortgagors that there are no other mesne in cumbrances and the presumption, therefore, enures to her benefit, as regards mortgages she knew nothing about; since her plain intention was to advance money on property free of encumbrance.