Jai Pragash Singh vs Rupmanjari and others

Kulwant Sahay, J.—This is an appeal by the defendant No. 17 against the decree of the Officiating Subordinate Judge of Arrah, dated the 2nd June 1919 and the only question raised in the appeal is as regards the right of priority between the different mortgagees. The suit is based on four mortgage bonds executed by the mortgagor-defendants in favour of the plaintiffs. Three of these bonds are dated the 17th November 1904 and the fourth is dated 18th November 1904. The appellant''s bond is dated 5th April 1902 and the appellant contends that he has got a right of priority over the plaintiffs inasmuch as his money went to pay off a prior bond, dated the 26th April 1890 of Kashi Nath Chaudhry. The learned Subordinate Judge has found that the appellant has failed to prove that the money advanced by him went to satisfy the previous mortgage of 1890 and further that there is nothing to show that there was any intention on the part of the appellant to keep the prior mortgage of 1890 alive. It appears that the money advanced under the plaintiffs'' first bond of 17th November 1904 went to satisfy three bonds, dated 6th January 1902, 4th February 1902, and 4th March 1902, in favour of one Mangar Ram, and that advanced under their bonds Exs. (A) and (B) of 1904 went to satisfy another mortgage of one Ram Prasad Chaudhry, dated the 5th May 1893. In the plaintiffs'' bond there is distinct recital that these prior bonds of Mangar Ram and Earn Prasad Chaudhry were kept alive and the learned Subordinate Judge has held that as the money advanced by the plaintiffs went to pay off the prior mortgages of 1893 and 1902, the plaintiffs have got a right of priority over the defendant No. 17.

It has been contended by the learned Vakil for the appellant that there is evidence on the record to show that the money advanced by the appellant went to satisfy the bond, of 26th April 1890 and in support of this contention he relies upon Ex. (1) certified copy of the bond, Ex. D, judgment in the suit on the above bond; Exhibit E, certified copy of the decree passed on that judgment and Ex. F, certified copy of the Register of Civil Suits which shows that a sum of Rs. 7,500 was paid in full satisfaction of the bond of Kashi Nath Chaudhry. Now, none of these documents goes to show that the sum of Rs. 7,200 advanced by the defendant No. 17 went to pay off the debt of Kashi Nath Ohaudhry. It has been contended that although execution was taken out for the realisation of a sum of Rs. 7,500 on the date on which the appellant''s bond was executed, a sum of Rs. 7,200 only was due upon Kashi Nath Chaudhry''s bond and the money advanced by the appellant went to completely satisfy that prior bond. But the documents relied upon are not sufficient to come to this conclusion; nor is the oral evidence of any value to show that the money advanced by the appellant went to satisfy the whole of the debt due upon Kashi Nath''s bond. I, therefore, agree with the learned Subordinate Judge in his finding that the evidence is not sufficient to come to a finding that the prior debt was paid off by the money advanced by the appellant. All that can be said upon the evidence is that it is likely that a sum of Rs. 7,200 went to partly satisfy the prior debt, but that is not sufficient to subrogate the defendant No. 17 into the position of the prior mortgagee. Kashi Nath Ohaudhry. Then there is no evidence on the record to show that the defendant No. 17 was even aware of the prior mortgages in favour of Manger Earn and other persons which were satisfied by the debts advanced by the plaintiffs, and that being 90, there could be no intention on the part of the defendant No. 17 to keep the prior mortgage of Kashi Nath Chaudhry alive. The position, therefore, is that we have nothing on the record to show that there was any intention on the part of the appellant to keep the mortgage of Kashi Nath alive and therefore he has no right to be substituted in the place of Kashi Nath. In this connection I may refer to the observations of the Privy Council in the case of Mahesh Lal v. Mahanth Bawan Das (1883) 9 Cal. 961 where their Lordships quoting from the judgment in the case of Adams vs. Angell (1876) 5 Ch. D. 634 observed:-

In a Court of Equity, it has always been held that the mere fact of a charge having been paid off does not decide the question whether it is extinguished. If it is paid off by a tenant for life without any expression of his intention, it is well established that he retains the benefit of it against the inheritance, for although he has not declared his intention of keeping it alive, it is presumed that his intention was to do so, because it is manifesty for his benefit. On the other hand, when the owner of an estate in fee, or in tail, pays off a charge, the presumption is the other way, but in either case the persons paying off the charge can, by expressly declaring his intention, either keep it alive or destroy it; if there is no reason for keeping it alive, then especially in the case of an owner in fee, equity will, in the absence of any declaration of intention, destroy it; but if there be any reason for keeping it alive, such as the existence of another incumbrance, equity will not destroy it.

Here we find no reason disclosed upon the evidence from which an intention could be presumed on the part of the appellant to keep alive the prior bond of Kashi Nath Chaudhry and, therefore, by the satisfaction of the decree obtained by Kashi Nath, the mortgage in his favour was extinguished and it was not kept alive for the benefit of the appellant.

Another point has been taken by the learned Vakil for the appellant to the effect that the learned Subordinate Judge ought to have determined the several liabilities as between the defendants Nos. 15 and 16 and the appellant. It appears that only two properties were mortgaged to the appellant, whereas some other properties also were mortgaged to the plaintiffs, and the defendants Nos. 15 and 16 are interested in the other properties, and the contention was that the extent of the several liabilities of the defendants Nos. 15, 16 and 17 ought to have been distinctly found by the learned Subordinate Judge. But that is a question of contribution between the several subsequent mortgagees and is a question which is foreign to the present suit. It would be open to the appellant, if he satisfies the whole of the decree of the plaintiffs, to institute a properly framed suit for contribution and in such a suit the several liabilities will have to be determined. The appeal is, therefore, dismissed with costs.

Das, J.

I agree.