BANSIDHAR DHANDHANIA Vs. KALROO MANDAR

JUDGEMENT

(1.) This is an appeal under the Letters Patent from a decision of a single Judge of this Court. It arises out of a suit brought to enforce a mortgage executed by one Tahur in 1927.

(2.) In 1930 Tahur and two co-sharers of his sold their entire sixteen annas share to defendant 2, the appellant before us. The consideration money for this sale was left with the appellant in accordance with an express covenant in the sale deed that the vendee would pay off two mortgages executed by Tahur and another co- sharer in 1918 and 1919 and one mortgage executed by the third co-sharer in 1924. The existence of the mortgage of 1927 executed by Tahur was not disclosed to the purchaser-appellant, who set up the defence that he was entitled to subrogation in respect of the mortgages of 1918 and 1919. The trial Court and the Court of first appeal accepted the contention in principle, but declined to give the appellant any relief on the ground that though the mortgages covered other properties the appellant had not established what share of the burden was to fall upon the property in suit.

(3.) On appeal by defendant 2 to this Court the learned Judge of this Court held it settled by the decision of the Judicial Committee in Jagmohan Das V/s. Jugal Kishore that a purchaser of the equity of redemption who discharges a prior encumbrance which he is by contract bound to discharge is not entitled to the benefit of the equitable rule of subrogation, for the simple reason that he merely performs his own obligation or covenant; or, to put it briefly, "covenant excludes subrogation".