SAMINATHA PILLAI Vs. KRISHNA AYYAR

JUDGEMENT

(1.) The plaintiff sues to recover the money due under a mortgage instrument executed by the first defendant in 1905. The amount was advanced to discharge a mortgage debt of Rs. 400 due to one Sivasami Sivan under a mortgage dated November 1901. The finding is that the mortgagor discharged that mortgage by paying the creditor Rs. 300 out of the amount received from the plaintiff and by the execution of a promissory note for Rs. 50, the balance Rs. 50 having been given up by the mortgagee.

(2.) The appellant claims under a mortgage dated October 1903,. and contends that the plaintiff is not entitled to any priority on account of his discharge of the prior mortgage. His contention has been disallowed by the Lower Courts.

(3.) It is argued before us in Second Appeal that though the entire ? mortgage debt has been discharged, as only Rs. 300 a portion of the mortgage debt was paid out of the money advanced by the plaintiff, and the balance Rs. 50 was paid by the mortgagor himself, he cannot claim a first charge to that extent. It is contended that it is only when the person claiming subrogation discharges the entire debt that he is so entitled. Reliance is placed in support of this contention on Hanumanthaiyan v. Meenatchi Naidu (1912) I.L.R., 35 Mad., 183 and Gurdeo Singh v. Chandrikah Singh (1909) I.L.R., 36 Calc., 193.