RAMKARAN HIRALAL Vs. JOGESHWAR

JUDGEMENT

(1.) MACNAIR , J.C. 1. Jogeshwar defendant 1 mortgaged certain property to Bansidhar defendant 14, on 16th November 1918. On 7th August 1925 the plaintiffs became owners of part of the mortgaged property by purchase at an auction-sale and on 16th April 1926 paid Rs. 17,910 through the Court to Bansidhar in full satisfaction of his mortgage. In the suit out of which this appeal arises they claimed to foreclose the property alleging that they had acquired the rights of the mortgagee by satisfying the mortgage-debt. Preliminary issues were framed on the point whether the plaintiffs could in these circumstances sue for foreclosure. These issues were found for the defendants. The plaintiffs offered to amend the plaint but amendment was not allowed. The suit was therefore dismissed. There were various defendants and the learned trial Judge allowed the full fee for one practitioner to be apportioned among them on the ground that the defendants had succeeded on a joint defence at an early stage in the proceedings. The main point urged by R.B.M.B. Kinkhede in appeal is that under the law before the Transfer of Property Amendment Act, 1929, came into force, a co-mortgagor on redeeming property subject to mortgage obtained the rights of the mortgagees with regard to foreclosure. The trial Judge held that the redemption only gave the plaintiffs charge on the shares of their co-mortgagors.

(2.) THE appellant's argument on this point may, I think, be thus stated. It is settled law that where there are several mortgages on a property, the owner of the property subject to the mortgages may, if he pays off an earlier charge, treat himself as buying it and stand in the same position as his vendor: Mali Reddi Ayyareddi v. Gopalakrishnayya AIR 1924 PC 36. The reasons given by their Lordships of the Privy Council for this conclusion fully apply if a part owner of the property pays off the earlier charge. It is then clear that but for the provisions of Section 95 an owner of part of the mortgaged property would in some cases obtain rights differing in nature from a charge, and the Legislature when enacting Section 95 cannot have intended to deprive a co-mortgagor paying off an earlier mortgage of his priority over later mortgages. Section 95 then, which states that such a mortgagor has a charge does not in all oases prevent his stepping into the shoes of the mortgagee of the proparty redeemed by him. If it does not prevent him in all cases, there is no reason why it should prevent him in any case where it is to his advantage to keep the former encumbrance alive. In the case we are considering this was to his advantage as there was an intermediate mortgage and apart from this a mortgage lien is something better than a charge.

(3.) ON p. 1185 he states (of 58 col.) Hitherto for reasons good or bad the Courts in India have affirmed that a mortgagor is entitled to this priority.