Hanumanthaiyan vs Meenatchi Naidu and Another

In this case there are two questions raised before us:-(1) where there are two mortgages on a property and a person advances money for the

payment of the first mortgage and that debt is satisfied, would the lender be entitled to stand in the shoes of the first mortgagee and claim priority if

he had no interest in the mortgaged property either as purchaser of the equity of redemption or as mortgagee at the time of the advance, and (2)

whether it is necessary that the first mortgage should be entirely discharged before the claim to priority over the 2nd mortgagee can be sustained. In

this case only a portion of the mortgage money due under the first mortgage was paid and the first mortgage was not entirely discharged. We think

there can be no doubt on principle that before a person advancing money for the purpose of discharging the debt due under the first mortgage can

establish his claim to the rights of the first mortgagee it must be shown that the first mortgage had been extinguished. Otherwise the result would be

that a number of persons would be entitled to rank as first incumbran-cers with reference to different sums of money advanced by them, and it

would be impossible to work out the rights of the parties. This is very clearly pointed out in Gurdeo Singh v. Chandrikah Singh and Chandrikah

Singh v. Rashbehary Singh (1907) 5 C.L.J. 611 ; and in JONES on Mortgages, para. 885 b. The learned vakil for the appellant has relied on

several rulings of this court for the contrary position. The cases relied on are Rupabai v. Audimulam ILR (1887) M. 345. Gangadhara v. Sharama

ILR (1884) M. 246 and Seetharama v. Venkatakrishnier ILR (1891) M. 94. In Rupabai v. Audimulam ILR (1887) M. 345, the learned Judges

state, at p. 354,that the whole of the prior charge was released and the same appears to have been the case in Gangadhara v. Sivarama ILR

(1884) M. 246. The facts of Seetharama v. Venkatakrishna ILR (1891) M. 94, so far as they appear from the report, are not very clear, but

supposing that the case is authority for the proposition contended for by the appellant it would seem that the question was not properly discussed

before the learned Judges and they give no reasons in support of their view. On this point therefore the appeal fails even if the other proposition

advanced on behalf of the appellant be held to be sound, as to which we do not express any decided opinion. The appeal is dismissed with costs.