MANGAL SEN Vs. KEWAL RAM

JUDGEMENT

(1.) The appellant, Mangal Sen, was defendant 17 in the suit, which was for the enforcement of a mortgage of 30 August 1922 executed by three brothers, Chandu Lal, Nandan Lal and Bansi Lal, in favour of the plaintiff-respondent. The appellant was impleaded as a defendant on the allegation that he was a subsequent purchaser of a portion of the mortgaged property. The appellant's contention was that he had, after purchasing on 20 April 1933 a portion of the mortgaged property, paid off a sum of Rs. 4180 to Joti Prasad who held a prior mortgage of 25 August 1921 executed by Bansi Lal alone. The appellant asserted in his written statement in para. 1 of the "further pleas" that the plaintiff could not get the property purchased by the appellant sold in enforcement of his mortgage. In para. 2 he alleged that he was not a subsequent purchaser, nor was the property purchased by him liable to be sold for the satisfaction of the amount due to the plaintiff. In para. 3 he stated that, even if the plaintiff had a right to get the property sold, he could not be allowed to do so without payment of a sum of Rs. 4180 and interest thereon to the appellant. In para. 5 it was averred that the property purchased by the appellant was not liable to be sold at the instance of the plaintiff and that the appellant had been improperly impleaded as a defendant. The plaintiff filed a replication and asserted that Mangal Sen and Joti Prasad were brothers and that Mangal Sen had not paid any money to Joti Prasad.

(2.) It was also pleaded that Mangal Sen could not acquire any right of subrogation by reason of the partial redemption set up by him. The Court below held that Mangal Sen had proved that he had paid the sum of Rs. 4180 to Joti Prasad in discharge of a portion of the amount due to Joti Prasad, but that such partial redemption could not entitle Mangal Sen to the right of subrogation in view of the provision contained in para. 4 of Section 92, T.P. Act. It accordingly rejected the claim put forward by Mangal Sen. In this appeal the relief sought by the appellant is that this Court may declare that in respect of the property purchased by him the appellant was a prior mortgagee to the extent of Rs. 4180. It is clear from the written statement and from the judgment of the learned Civil Judge that no pleading precisely similar to the relief now sought in appeal was really put forward in the Court below and, strictly speaking, the appellant cannot complain against the Court below for not having considered a plea which he never put forward. But, apart from that, it seems to me that the decision of the Court below is right. The facts bearing on this question are these. One of the items of property mortgaged to Joti Prasad under the deed of 25 August 1921, executed in his favour by Bansi Lal, was "one share out of six shares" situated in a village called Pairi. In the mortgage of 30 August 1922, made by Bansi Lal, Nandan Lal and Chandu Lal in favour of the plaintiff-respondent, one of the items mortgaged was "three out of six shares" in that village Pairi. In execution of a simple money decree held by certain persons against the sons of Bansi Lal, who had died by this time, a portion of the property mortgaged to Joti Prasad was put up to sale and was purchased by the appellant on 20 April 1933.

(3.) The appellant alleges that on 20 August 1933 he paid a sum of Rs. 4180 to his brother Joti Prasad, and obtained from him a receipt which he has produced. His contention is that Joti Prasad released the property purchased by the appellant from his security and that the appellant took possession of that property free of the encumbrance of Joti Prasad. He claims that as the result of this alleged payment to Joti Prasad he is entitled to be subrogated to the rights of Joti Prasad and to be treated as a prior mortgagee to the extent of Rs. 4180. It is common ground that this payment of Rs. 4180, even if it was made by Mangal Sen to Joti Prasad, did not redeem the mortgage of 25 August 1921 in full. Mr. Panna Lal has relied on the case in Udit Narain Misir V/s. Ashrafi Lal (1916) 3 AIR All 81. That case was decided long before the Transfer of Property Act was amended and Section 92 was inserted in the Act. The learned Judges who decided that case did not agree with the view taken by the Calcutta High Court in Gurdeo Singh v. Chandrika Singh (1909) 36 Cal 198. It seems to me that the Legislature, when amending the Transfer of Property Act in 1929, deliberately accepted the view of the Calcutta High Court in Gurdeo Singh V/s. Chandrika Singh (1909) 36 Cal 198 and did not accept the view expressed by this Court in Udit Narain Misir V/s. Ashrafi Lal (1916) 3 AIR All 81. The appellant's purchase and his alleged payment to Joti Prasad are of the year 1933, i.e., at a time when the Transfer of Property Act had Seen amended. Mr. Panna Lal argues however that the law as it stood on 25th August 1921, when the mortgage deed in favour of Joti Prasad was executed, would govern the rights of his client. This contention is not, in my opinion, correct. It has been held in the Full Bench case in Hira Singh V/s. Jai Singh that Section 92, T.P. Act, has retrospective effect.