MOULVI MUTIULLAH KHAN Vs. BANWARI LAL

JUDGEMENT

(1.) This appeal arises out of a suit for sale upon two mortgages made respectively on the 11 of July 1897 and the 4 of August 1898 by one Dariao Singh in favour of the plaintiff Bunwari Lal. Dariao owned a 6? biswa share in the village Serai Khas. On the 18 of August 1894 he mortgaged a 4 biswa share to one Bhola Nath. On the 11 of December 1894 he mortgaged 5 biswas to Bhola Nath and on the 14 of September 1895 he mortgaged 1 biswa more to the same mortgagee. After these mortgages he made the two mortgages in favour of Bunwari Lal to which we have referred above. On the 23 of April 1900, Dario sold to Prag Narain his interest in the mortgaged property and he left Rs. 2,600 with the purchaser for discharge of the mortgages held by Bhola Nath. Prag Narain did not pay off those mortgages but on the 16 of September 1901 he made a mortgage of the property to one Hardwari Lal for Rs. 3,300 and out of this sum Hardwari Lal withheld Rs. 2,200 for payment to Bhola Nath. With this money he discharged the mortgages held by Bhola Nath. Hardwari Lal brought a suit for sale upon his mortgage and obtained a decree against Prag Narain. In execution of that decree the mortgaged property was sold by auction and the appellant Mutiullah Khan became the purchaser. In the suit out (sic) which this appeal arises Bunwari Lal prayed for the sale of the property purchased (sic) Mutiullah Khan. Mutiullah's defence was that he was entitled to hold up the mortgages of Bhola Nath as a shield against the claim of Bunwari Lal. The Court (sic) relying upon the ruling of this (sic) Baijnath V/s. Murli Dhar A.W.N. (1907) 85 : 4 A.(sic), has (sic) Mutiullah Khan has no right by virtue of his purchase to claim priority over the plaintiff.

(2.) The correctness of this decision is impugned in this appeal and it is urged that Mutiullah as standing in the shoes of Hardwari Lal is entitled to claim the benefit of the prior mortgages held by Bhola Nath which were discharged by Hardwari Lal. (sic) is contention is, in our judgment, well-(sic)ded. After the sale to Prag Narain the mortgagor ceased to have any interest in the mortgaged property and those interests rested in Prag Narain under his purchase. Hardwari Lal as mortgagee from Prag Narain was thus a subsequent mortgagee of the property. As such subsequent mortgagee he redeemed the prior mortgages held by Bhola Nath, and, therefore, under the provisions of Section 74 of the Transfer of Property Act he was entitled to take the benefit of the securities held by Bhola Nath. Further as upon his discharge of the prior mortgages held by Bhola Nath the mortgage deeds were handed over to him, this is evidence of his intention to keep the mortgages alive. He was, therefore, entitled to hold them up as a shield against the claim of the subsequent mortgagee. This was so held in Kallu V/s. Sant Lal A.W.N. (1896) 129 and is in agreement with the decision in Baldeo Prasad V/s. Uman Shanker (sic) L.J. 987 : 4 Ind. Cas. 810, [Second Appeal No. 1069 of 1905, decided on the 6th of April 1907], and also with the decision in Mamraj V/s. Ramji Lal (sic) L.J. [Second Appeal No. 757 of 1903, decided on the 25 of May 1909, which has not yet been reported]. The case on which the Court below has relied is distinguishable from this case. The circumstances of that case were peculiar and having regard to those circumstances the puisne mortgagee was held to be entitled to enforce his mortgage against the subsequent purchaser who had discharged prior incumbrances.

(3.) For the above reasons we are of opinion that the plaintiff Bunwari Lal is not entitled to bring the mortgaged property to sale without discharging the prior mortgages which have been paid off by Hardwari Lal. The Court below has not determined what amount if any, is due on those prior mortgages. We cannot, therefore, decide this appeal without obtaining findings on the following issues which we refer to the Courts below under the provisions of Order 41, Rule 25 of the Civil P. C.. (1) What amount, if any, is due on each of the mortgages held by Bhola Nath, dated respectively the 18 of August 1894, the 11 of December 1894 and the 14 of September 1895? (2) Is the claim under any and which of these mortgages barred by limitation?