TIKA SAO Vs. HARI LAL

JUDGEMENT

(1.) The facts of this case, so far as they are material to the questions to be decided by this Bench, may be briefly stated as follows : In the year 1924, defendants 1 and 2 in the action which has given rise to this reference executed two simple mortgage bonds in favour of one Sundar Sah and in 1925 they executed two other simple mortgage bonds in favour of one Kokil Sah, admittedly a benamidar for. Saukhi Sah and others. Saukhi Sah and Sundar Sah belonged to the same family and there being a private partition between them, Sundar Sah acquired the right to realize all the dues under the first two bonds and Saukhi Sah similarly acquired the right to realize the dues under the last two bonds. Defendants 1 and 2 afterwards executed several mortgage bonds in favour of the appellants in the year 1926, and on 25 April 1927 they also executed a mortgage bond in favour of the plaintiffs and defendants 3 to 6 for a sum of Rs. 13,000.

(2.) The points to be noted in regard to the last bond are firstly, that it provided among other things that the bulk of the consideration money was to be used by the plaintiff in paying off the four bonds executed by defendants 1 and 2 in favour of Sundar Sah and Saukhi Sah in the years 1924 and 1925 and secondly, that mauza Marsua was not one of the properties mortgaged under this bond, though it had been mortgaged under three of the bonds executed by defendants 1 and 2 in favour of Sundar Sah and Kokil Sah between 1924 and 1925.

(3.) The plaintiffs claimed in their action that by payment of the prior mortgage bond of 1924 and 1925 they had been subrogated to the position of the mortgagees under those bonds and they were, therefore, en-titled to sell Marsua to realize the sum paid by them to liquidate the incumbrance on it. The defendants, on the other hand, contended that the plaintiffs were not entitled to subrogation and could not proceed" against Marsua. On these facts two questions have been referred to this Bench and they have been formulated as follows: (1) Whether a subsequent mortgagee, who pay up and redeems the earlier mortgages as a part o the covenant in his mortgage is entitled to claim subrogation so as to give him the right to enforce the rights of the earlier mortgagees as a plaintiff in an action or whether he can use the earlier mortgages as a shield only irrespective of the fact that the properties mortgaged to him are different from the properties covered by the earlier mortgages so redeemed. (2) Whether the provisions of Section 92 of the amended Transfer of Property Act are retrospective.