SETH CHUNNI LAL Vs. LAKSHMI CHAND

JUDGEMENT

(1.) This is an appeal by Seth Chunni Lal who was the plaintiff in the Court below and who had brought a suit for the recovery of a sum of Rs. 2800 on the basis of a mortgage dated 28 April 1922. The defendants to the suit were Bharat Singh, Ranjit Singh and Ram Singh, defendants 1 to 3, who might loosely be described as the original mortgagors, and Lachhmi Chand, Hargu Lal and Rameshwar Das, defendants 4 to 6, who were impleaded as subsequent mortgagees under a mortgage of 19 January 1929. The mortgage was executed by Bharat Singh in his own right and as the guardian of Ranjit Singh and Ram Singh. The defence of Ranjit Singh and Ram Singh was that they were separate from Bharat Singh defendant 1 and the latter had no right to execute the mortgage on their behalf and the mortgaged property so far as their share was concerned was unaffected. Defendants 4 to 6 pleaded-and it is only with this plea that I am concerned-that they had priority to the extent of Rs. 3230 because under the mortgage of 1929 the above sum was credited towards an earlier mortgage in their favour of 28th January 1921, a mortgage earlier than the mortgage in suit of the plaintiff.

(2.) The trial Court held in favour of defendants 2 and 3 and said that defendant 1, Bharat Singh, was not entitled to execute a mortgage on behalf of defendants 2 and 3 and that the property of defendants 2 and 3 was unaffected by the mortgage. It also held in favour of defendants 4 to 6 and declared that they were entitled to priority with respect to the sum of Rs. 3230. On these findings the learned Munsif decreed the plaintiff's suit for Rs. 2800 but exempted defendants 2 and 3 and their share of the property. All the defendants were given six months time from the date of the decree to redeem the plaintiffs mortgage and in case of their failure to do so the plaintiff was given three months time from the expiry of the six months aforesaid to pay off the amount of Rs. 3230 for the prior mortgage of defendants 4 to 6 and in case of such payment being made within the period above mentioned the plaintiff was to be entitled to realize the amount due on the mortgage in suit as also the sum of Rs. 3230 plus the costs of the suit by sale of Bharat Singh's 1/3 share in the property in dispute. There was an appeal by the plaintiff, and the lower Appellate Court confirmed the decree of the trial Court.

(3.) In second appeal before us it is contended that defendants 4 to 6 are not entitled to any priority. For the rest no grievance is made so far as the decrees of the Courts below are concerned. The submission on behalf of the plaintiff is that defendants 4 to 6 are mortgagees under the mortgage of 19 January 1929 and to that extent their mortgage is subsequent to the plaintiff's mortgage of 28th April 1922. The mortgage of 19 January 1929 was executed for a sum of Rs. 5500 and out of this, Rs. 3230 was credited towards a mortgage of 28 January 1921 in favour of defendants 4 to 6 and a sum of Rs. 1200 was left for payment to the present plaintiff upon his mortgage of 28 April 1922. It is contended on behalf of the plaintiff-appellant that the mortgagees of 1929 are not entitled to subrogation so far as the sum of Rs. 3230 is concerned and reliance is placed on Section 92, T.P. Act (Act 4 of 1882 as amended by Act 20 of 1929). Section 92 provides amongst other things: A person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such persons shall be so subrogated.