MUKARAM MARWARI Vs. MOHAMMAD HOSSAIN

JUDGEMENT

(1.) This appeal arises out of a suit on a mortgage bond which was executed by the predecessor in interest of defendant 1 in favour of the plaintiff on 6 November 1919. Defendant 2, who contested the suit, was impleaded on the ground that he was a purchaser of a portion of the equity of redemption. His defence was that he satisfied two prior mortgages in respect of the property which he purchased and consequently he was entitled to stand in the shoes of the prior mortgagees whose claims were satisfied by him. The trial Court repelled the defence of defendant 2.and decreed the suit in full. On appeal by defendant 2 the lower appellate Court dismissed the appeal on the ground that the appeal was incompetent. A Second Appeal (S. A. 505 of 1930) was taken to this Court by defendant 2 and this Court set aside the judgment of the lower appellate Court and directed a re--hearing of the appeal according to law. Thereupon the lower appellate Court has re--heard the appeal and has allowed it in part. It has come to the conclusion that defendant 2 was entitled to get credit for Rs. 210 for satisfying the prior mortgages. Hence the present appeal by the plaintiffs.

(2.) The following points were taken by the learned Advocate in support of the appeal: (1)that defendant 2 was not entitled to subrogation, inasmuch as he satisfied the prior mortgages under a covenant, under which he was bound to discharge the prior mortgages; (2)that the payment by defendant 2, being only a payment as agent of the mortgagor, defendant 2 was not entitled to claim any subrogation; (3)that the lower appellate Court in coming to the conclusion that the intention of defendant 2 was to keep the mortgage alive did not take into consideration the fact that the previous mortgage bonds were not taken back at the time when they were alleged to have been satisfied; (4)that out of the five items of the property mortgaged by Ex E only one is included in the plaintiffs mortgage and consequently defendant 2 who paid off Ex E was not entitled to claim the entire amount paid for the satisfaction of Ex. E by way of subrogation; (5)that the lower appellate Court has not come to any definite finding that the prior mortgages which were satisfied were for consideration; (6)that the satisfaction of the prior mortgage, Ex. E, was not a proper satisfaction, inamuch as the money was not paid to the mortgagee but to the son--in--law of the mortgagee; and (7)that in any view of the case the lower appellate Court should not have allowed full costs to defendant 2.

(3.) As regards the first point the contention of the learned Advocate for the appellant is that defendant 2 at the time of his purchase retained a part of the price and expressly agreed by a convenant in the deed of his purchase to discharge the prior mortgages out of the same and consequently he having discharged his own obligation under the covenant was not entitled to claim subrogation. It cannot be disputed and in fact it was not disputed by the learned Advocate for the respondent that if the mortgagor, that is, the vendor of defendant 2, had himself paid off the previous mortgages out of the price, he could not claim subrogation, because in that case he would have performed his own obligation. This principle has now been expressly recognized by the legislature in the Transfer of Property Amendment Act, i.e. Act 20 of 1929. It is however contended by the learned Advocate for the respondent that the rule against subrogation of the mortgagor cannot be extended to defendant 2 who, as purchaser, satisfied the prior mortgages in order to protect his own interest. In other words the contention is that the continuance of the prior mortgages paid up by him must be presumed to be for his benefit, unless the contrary is shown and consequently his intention at the time of the satisfaction of the prior mortgages must be taken to keep them alive as a shield against any other encumbrance which might be discovered later on. Now it is well established that: When the owner of an Estate pays charges on the Estate which he is not personally liable to pay, the question whether these charges are to be considered as extinguished and as kept alive is simply a question of intention. You may find the intention in the deed or you may find it in the circumstances attending the transaction or you may presume an intention from considering whether it is or is not for his benefit that the charge should be kept on foot: Thorne V/s. Cann 1895 A C 11 at p. 18: see also Mohesh Lal V/s. Mohunt Bawan Das (1883) 9 Cal 961, Gokuldoss Gopaldoss V/s. Rambux Seochand (1884) 10 Cal 1035, Dinobondhu Shaw Chowdhury V/s. Jogmaya Dasi (1902) 29 Cal 154 at p. 16, Syed Mahomed Ibrahim Hossein Khan V/s. Ambika Persad Singh (1912) 39 Cal 527 at p. 81.