Chama Swami and Another vs Padala Ananda and Another

The plaintiffs in this case, according to the finding of the lower appellate Court, purchased certain lands by a sale-deed dated 21st July 1899,

which was afterwards registered, and on the 24th August 1899 redeemed a mortgage on the property. The plaintiffs'' purchase was afterwards

held invalid as against defendants 3 to 6, and under these circumstances the plaintiffs have brought the present suit to recover from defendants 3 to

6 the money due on the mortgage which they paid off whilst in possession of the property under the sale deed in their favour. Both the lower

Courts have given a decree in the plaintiffs'' favour on the authority of Syamalarayadu v. Subbarayadu ILR (1897) M. 143 the facts in which

closely resemble those in the present case. In the argument, before us it was not seriously argued that the present case was distinguishable; but it

was said that the decision in Syamalarayadu v. Subbarayadu ILR (1897) M. 143 was wrong. We are unable to agree with this contention.

Although no authorities are cited in Syamalarayadu v. Subbarayadu ILR (1897) M. 143 we think that the learned judges who decided the case

must have had their attention called to the decision of the Privy Council in cases of this kind and have proceeded on the authority of those cases. In

t he well-known case of Gokaldas Gopaldas v. Puranmal Premsulkhdas ILR (1884) C. 1035 their Lordships of the Judicial Committee pointed

out that what we have to look to in India are not the technical rules of English Equity as settled by the authority of decided cases, but only such of

those rules as rest upon broad intelligible principles of justice and can be applied as part of the law of justice, equity and good conscience; and

accordingly their Lordships refused to apply the ruling in Toulmin v. Steere (1817) 3 Mer. 210 to India. In a later case Dakhina Mohan Roy v.

Saroda Mohan Roy ILR (1893) C. 142, Lord Macnaghten delivering the judgment of their Lordships, referred to the case of The Peruvian Guano

Co. v. Dreyfus (1892) A.C. 166 in which he had himself criticized the English decisions that parties who have no right to property cannot acquire a

lien by expending moneys in connection with it, and observed that after the decision in The Peruvian Guano & Co. v. Dreyfus (1892) A.C. 166 it

would be hard to maintain as a proposition admitting of no exceptions that a person who is in wrongful possession is not entitled to recover sums

paid on account of outgoings, In that case their Lordships held that the plaintiff was not in wrongful possession at the time he paid the Government

revenue which he was seeking to recover as he was at the time in possession under the decree of a competent Court which was afterwards

reversed; but at the close of the judgment '' his Lordship speaks of the claim as being in the nature of salvage, and observes that the Indian Statute

Law recognizes an equity to repayment in the case of a person who not being proprietor pays the Government revenue in good faith to support a

claim which afterwards turns out to be unfounded. In Syamalarayudu v. Subbarayadu ILR (1897) M. 143 the action of the plaintiff in paying off a

mortgage on the property was considered to have been made in good faith in spite of the fact that he was claiming under a sale-deed which had

been antedated for the purpose of supporting his title. For the appellant we have been referred to the recent decisions of the Calcutta High Court

Gurudeo Singh v. Chandrikah Singh and Chandrikah Singh v. Rashbehari Singh (1907) 5 C.L.J. 611 in which the American authorities are

considered, but we do not think they help the appellant. The American Courts apply to cases of this kind an equitable doctrine of subrogation

borrowed from the Civil Law, and when equity requires it allow persons paying off mortgages on properties which do not belong to them to be

subrogated to the rights of the original mortgagees. This right of subrogation is not extended to mere volunteers who pay off other people''s debts

without having any concern in them. This was held by the Supreme Court in Etna Life Insurance Co. v. Middleport (1887) 124 U.S. 525, but in

the course of their judgment in that case the learned judges cite with approbation a passage from Shelden on Subrogation in which subrogation is

allowed as a matter of right for the benefit of a purchaser who has extinguished an encumbrance on the estate which he has purchased.

We think this is the right principle to apply especially where, as in the present case, the plaintiffs were in possession when they paid off the

mortgage.

Under these circumstances we agree with the lower Courts, and dismiss the appeal with costs.