KALIMUDDIN SHAIK Vs. BAIDYANATH SAHA

JUDGEMENT

(1.) This appeal has arisen out of a suit for recovery of Rs. 1,153-12-0 alleged to be due on a mortgage bond. The appellants are purchasers of the mortgaged property by the kabala Ex. B. The appellants claim that the property was mortgaged to them for Es.390 on 3 Baisakh 1329. Two days later they purchased the property for Rs. 800 and out of the consideration of the two transactions Rs. 7.00 was paid in satisfaction of a prior mortgage of Samiruddin and the property was sold to them free of encumbrances, the existence of the plaintiff's mortgage being concealed from them.

(2.) It is urged on their behalf that the plaintiffs are not entitled to enforce their mortgage - without refunding Rs. 700 paid by the appellants to redeem the prior mortgage. The Court of first instance has found that Samiruddin's mortgage was paid off by the mortgagors previously. The lower appellate Court finds that inasmuch as the amount of the prior mortgage was admittedly actually paid by the mortgagors, the appellants cannot claim that they are entitled to recover the amount from the plaintiffs as subsequent mortgagees before the latter can put the property to sale to enforce their mortgage.

(3.) It is clear that if, as found by the first Court, the prior mortgage was paid off by the mortgagors previously to, and independently of, the appellant's purchase, the prior mortgage was extinguished as the mortgagors could have had no advantage in keeping it alive and could not have intended to do so, but, assuming that the prior mortgage was paid off, as claimed, from the consideration of the kabala at the time of the purchase, by agreement between the mortgagors and the purchasers, must the prior mortgage to regarded as extinguished or can the purchasers hold it as a shield to protest their property against the puisne mortgagees? This is a question which depends entirely on the circumstances in which the mortgage of Samiruddin was paid off. The learned Subordinate Judge has unfortunately come to no finding as to what these circumstances were : he disposed of the matter by simply saying that the appellants are not entitled to claim the money paid to Samiruddin (the prior mortgagee) because, on their own case they did not pay any thing, to Samiruddin in addition to the consideration of the kabala. But the appellants claim is that the amount paid to Samiruddin was included in the amount paid for the kabala so that the argument of the learned Subordinate Judge appears to be entirely futile.