RAJANI NATH SIL Vs. ENNATALI HOWLADAR

JUDGEMENT

(1.) This is an appeal by defendant 3 in a suit for sale by enforcing a simple mortgage bond executed by defendants 1 and 2 in favour of the plaintiff in April 1923. The facts which are necessary to discuss the issue raised in this Court are that defendants 1 and 2, who may be called the mortgagors, mortgaged the property in dispute in March 1923 to Moslem Khan. About a month thereafter, in April 1923, they again mortgaged the same property to the plaintiff. Four years later, in April 1927, they mortgaged the same property to defendant 3. In that mortgage bond they stated that the properties were previously mortgaged to Moslem Khan, that about Rs. 700 was due on that mortgage and the mortgagors agreed that defendant 3 should keep the required amount in deposit to pay off the said mortgage, and that on redemption thereof, defendant 3 would keep the bond. They also stated that except that mortgage in favour of Moslem Khan, the properties were not otherwise encumbered. Thereafter defendant 3 paid a sum of Rs. 680 to Moslem Khan and redeemed the first mortgage and obtained the mortgage bond. The present suit was instituted in 1932. Defendant 3 contested the suit. He raised various defences which were repelled by the Court of appeal below and the suit was decreed in full.

(2.) In appeal the learned advocate has urged only one issue, namely whether the appellant is entitled to be subrogated to the rights of the first mortgagee Moslem Khan. The Court of appeal below decided the issue against the appellant on the grounds that both the first and third mortgages were usufructuary mortgage bonds and two usufructuary bonds could not subsist at one and the same time, and that there could be no subrogation if the subsequent mortgagee paid off the first mortgage out of his mortgage money. Upon hearing the learned advocates on both sides it appears that the first ground of the learned Subordinate Judge is of no weight. The appellant obtained a usufructuary mortgage and though the first mortgage was usufructuary he redeemed it forthwith and there could be therefore no conflicting interest as to possession.

(3.) The second point, that there can be no subrogation if the subsequent mortgagee paid off the prior mortgage out of the mortgage money, is a more difficult question of law. It was urged on one side that the issue is governed by Section 92, T. P. Act. On the other side it was urged that that Section had no application as the mortgages were effected before April 1930, when Section 92 came into force. The question is of mere academic importance. If Section 92 does not apply then Sub-section 74 and 75 which were repealed would apply and the effect of those Secs.is the same as of Section 92 in this case. The question here is whether in the circumstances of his case the Court should presume an intention on the part of defendant 3 to keep the first charge alive for his own benefit. Many cases were cited by the learned advocates on both sides. On the side of the respondent the case in Jagmohan Das V/s. Jugal Kishore 1932 P C 99 was cited. In that case where the vendee of a half share of a property already mortgaged stipulated to pay, as part of the consideration, half the mortgage-debt, but afterwards he paid the whole of the mortgage money to defeat a Court sale, it was held that in redeeming the mortgage in suit, the said vendee would get no credit for that half of the sum which he was bound to pay under the terms of the purchase, but would get credit for the other half. In that case the vendee had bound himself to pay half of the mortgage money, and it was his duty to pay that half, therefore he could not get subrogation for that half. The case in Mukaram Marwari V/s. Mohammad Hossain 1936 Cal 42 was also cited. In that case the subrogation was claimed by a purchaser of a portion of the equity of redemption; it was refused by this Court.