AVUDAI AMMAL Vs. CHINNA RAMASAMI NAICK

JUDGEMENT

(1.) The question argued in this Second Appeal is whether the third mortgagee is entitled to priority over the second mortgagee. There were three mortgages, one of 1900 in favour of one Veerappa Naick, Ex. B. another in 1904 in favour of the 2nd defendant Ex. 1, and the third in favour of the plaintiff in 1912, Ex. C. Veerappa Naick brought a suit and obtained a decree without impleading the 2nd defendant as a party. In order to discharge the decree, the mortgagor borrowed from the plaintiff Rs. 3,350 on 28 July, 1912, and paid the amount to Veerappa's Vakil in discharge of the decree debt. The mortgage deed Ex. C, in favour of the plaintiff was executed on 16 August, 1912, and the stamp paper for the deed was purchased on 27 July, 1912.

(2.) Both the lower Courts have found in favour of the plaintiff's contention that he is entitled to priority over the second mortgagee.

(3.) It has been urged before me that the plaintiff is a volunteer and that he had no subsisting interest on the date of his mortgage, to enable him to get the benefit of the principle of subrogation and that in order to stand in the shoes of the first mortgagee, Veerappa Naick, the plaintiff ought to have had an interest in the mortgaged property, before he discharged the amount due to Veerappa and reliance is placed on Gurdeo Singh V/s. Chandrihah Singh and Chandrikah Singh v. Rashbehari Singh (1909) 36 Cal. 193 and Govinda Padayachi V/s. Lokanatha Aiyar A.I.R. 1921 Mad. 51 In Gurdeo Singh V/s. Chandrikah Singh and Chandrkah Singh v. Rashbehari Singh (1909) 96 Cal. 193, the learned Judges observe: That principle is, that subrogation as a matter of right is never applied in aid of a mere volunteer. Legal substitution into the rights of a creditor for the benefit of a third person takes place only for his benefit, who, being himself a creditor satisfies the lien of a prior creditor or for the benefit of a purchaser, who extinguishes the encumbrances upon his estate or of a co-obligor or surety, who discharges the debt, of an heir, who pays the debts of the succession. Anyone who is under no legal obligation or liability to pay the debt, is a stranger and, if he pays the debt, he is a mere volunteer.