NADUVILE MARATHE IKKALI AMMA S DAUGHTER TAVAZHI MANAGER LAKSHMI AMMA Vs. KARUPPATH AMMALU AMMA S SON SANKARA NARAYANA MENON

JUDGEMENT

(1.) The question raised in this Second Appeal is whether the appellant, who was defendant in the suit, was entitled to subrogation in respect of two mortgages discharged by him for the mortgagor.

(2.) The appellant had been given a usufructuary mortgage of property, which was subject to three prior simple mortgages in consideration of an advance of Rs. 8000 made by him to the mortgagor, the appellant undertaking to pay off these prior mortgages. As a matter of fact he paid off the two first mortgages, but he did not pay off the third mortgage. The third mortgagee brought a suit for sale on the footing of his mortgage, and the appellant set up in this suit a claim to be substituted for the two prior mortgagees whose debt he had discharged. The lower appellate Court rejected this claim, holding that it was not sustainable in the face of Section 92 of the Transfer of Property Act. It should be mentioned that the mortgages in question were antecedent in date to the amendment introduced by Section 92 into the Act.

(3.) The case has been argued on the assumption that Section 92, as held by a Full Bench in Tota Ram V/s. Ram Lal (1932) I.L.R. 54 All. 897 (F.B.) is retrospective. Assuming that it is, I think that the third paragraph of the Section is fatal to the appellant's claim. This paragraph runs: A person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such person shall be so subrogated.