Mata Din Kasodhan vs Kazim Husain and Another

Sir John Edge, Kt., C.J.—This is a Second Appeal, and is brought by the plaintiff in the suit from the decree of the late District Judge of Gorakhpur of the 30th of May 1888, which dismissed the plaintiff''s appeal below, and confirmed the decree of the Subordinate Judge of Gorakhpur dismissing the plaintiff''s suit so far as it related to his prayer for a decree for sale of a 4-anna share in mauza Barwa Kutwa in enforcement of an hypothecation lien. On the 10th of September 1882, two brothers, named Kazim Hasan and Nadir Hasan, in consideration of Rs. 2,901 advanced to them by Hari Prasad, one of the defendants-respondents before us, executed a simple mortgage in his favor, and thereby hypothecated an 8-anna share in mauza Barwa Kutwa and a 5-anna share in mauza Biswa Kutiya.

On the 23rd of February 1884, Hari Prasad advanced a further sum of Rs. 2,799 to Kazim Hasan and Nadir Hasan, and in consideration of that advance they on that date executed a simple mortgage in favor of Hari Prasad, by which they hypothecated the same 8-annas share in mauza Barwa Kotwa and 4 annas of the 5-annas share of Biswa Kutiya hypothecated by the deed of the 10th of September 1882, and in addition certain shaves in Mauzas Captainganj, Rudhauli, Jamgal, Banki, Purasrampur and Bharpurwa.

On the 6th of August 1885, Kazim Hasan borrowed Rs. 1,000 from Mata Din Kasodhan, who is the plaintiff-appellant, and on that day, and in consideration of that advance, Kazim Hasan executed in favor of the plaintiff-appellant a simple mortgage, hypothecating his 4 annas of the 8 annas of Barwa Kutwa, 2 annas of Biswa Kutiya, and some small shares in Captainganj and Bharpurwa.

On the 12th of August 1885, Nadir Hasan borrowed Rs. 1,999 from Hari Prasad, and in consideration of that advance executed on that date a deed in favor of Hari Prasad, by which he hypothecated his 4 annas of the 8-annas share in Barwa Kutwa, and 2�-annas share in Biswa Kutiya, and certain shares in Captainganj and Bharpurwa.

On the 21st of August 1885, Kazim Hasan borrowed Rs. 999 from Mata Prasad, and in consideration of that advance executed a simple mortgage in favor of Mata Prasad, by which he hypothecated his 4 annas of the 8-annas share in Barwa Kutwa, 2 annas in Biswa Kutiya and certain shares in Captainganj and Bharpurwa.

On the 20th of September 1886 Kazim Hasan and Nadir Hasan, by a sale-deed of that date, sold to Hari Prasad the 8-annas share in mauza Barwa Kutwa for Rs. 14,530, and with that sum Hari Prasad''s mortgages of the 10th of September 1882, the 23rd of February 1884, and the 12th of August 1885, were paid off. It was to pay off those mortgages that the sale of the 20th of September 1886 was was made.

On the 8th of January 1887, Mata Din brought his suit in the Court of the Subordinate Judge of Gorakhpur against Kazim Hasan and Hari Prasad. So far as is material for the consideration of this appeal, he sought by his suit a decree setting aside the sale-deed of the 20th of September 1886, and decreeing a sale of the 4-annas share in Barwa Kutwa in enforcement of his lieu under the deed of the 6th of August 1885.

The plaintiff did not ask for redemption of the mortgages of the 10th of September 1882 and the 23rd of February 1884, nor did he seek foreclosure of the mortgage of the 21st of August 1885.

Kazim Hasan did not defend the suit. Mata Prasad was not made a party to the suit.

The Subordinate Judge dismissed Mata Din''s claim to have the sale-deed of the 20th of September 1886 set aside, and to have the 4-annas share in Barwa Kutwa brought to sale.

Mata Din appealed. The District Judge on appeal found that Hari Prasad, when he purchased on the 20th of September 1886, intended to keep alive as shields for his protection the securities of the 10th of September 1882 and the 23rd of February 1884.

The District Judge also found that Mata Din had never tendered payment to Hari Prasad of the amount which had been due under Hari Prasad''s prior incumbrances, and had not offered to bring the money into Court, and dismissed the appeal with costs.

The questions which we have to consider in this Second Appeal are what, on the findings of fact of the Lower Appellate Court, are the respective rights of Mata Din and Hari Prasad, and what is the decree which we should pass in appeal in this case.

It has been contended on behalf of Mata Din that Hari Prasad is not entitled to use as shields the mortgages of the 10th of September 1882 and the 23rd of February 1884; that Mata Din was not bound to ask for redemption of either of those mortgages; that Mata Prasad is not a necessary party to the suit; that Mata Din was not bound to seek foreclosure so far as Mata Prasad''s mortgage is concerned, and that Mata Din is entitled to a decree for sale of the 4 annas in mauza Barwa Kutwa freed of any incumbrance of Hari Prasad, or at least to a decree for sale of those 4 annas, subject to the mortgages of the 10th of September 1882 and the 23rd February 1884, or to a decree for sale of the rights and interest of Mata Din and Kasim Hasan in those 4 annas.

I hold without the slightest doubt on the authority of (1884) L.R. 11 I.A. 126 (Privy Council) ; Gaya Prasad v. Salik Prasad ILR 3 All., 682; Mul Chand Kuber v. Lallu Trikam ILR 6 Bom., 404; Shantapa v. Balapa ILR 6, Bom., 561; Ramu Naikan v. Subbaraya Mudali 7 Mad. H.C. Rep., 229; Raghunath Prasad Vs. Sirbadh Rai and Others, ; Sri Matra Mautangui Debia Vs. Janki Prasad, ; and Gangadhara v. Sivarama ILR 8 Mad., 246 as applied to the facts found by the Lower Appellate Court in this case, that Hari Prasad is entitled to use the mortgages of the 10th of September 1882 and the 23rd of February 1884 to the extent of the amount which was due under them on the 20th of September 1886 as shields against the plaintiff''s claim to bring the 4 annas of mauza Barwa Kutwa to sale. Having regard to the view expressed by their Lordships of the Privy Council in (1889) L.R. 17 I.A. 201 (Privy Council) . I am of opinion that as Hari Prasad has since the 20th of September 1886 been in possession of the 8-annas share of mauza Barwa Kutwa, which he practically took as representing the amounts due under the mortgages of the 10th of September 1882, the 23rd of February 1884, and the 12th of August 1885, the interest which would otherwise be payable under the mortgages of the 10th of September 1882 and the 23rd of February 1884, subsequent to the 20th September 1886, should, if an account be directed to be taken, be treated as satisfied by the rents and profits received by Hari Prasad from the 8 annas of mauza Barwa Kutwa since the 20th of September 1886.

Although all the mortgages in this case were made subsequently to the coming into force on the 1st of July 1882 of the Transfer of Property Act, 1882 (Act IV of 1882), and the rights of the parties are consequently governed by that Act, still as that Act was passed "to define and amend certain parts of the law relating to the Transfer of Property by Act of parties;" and as there has been in the course of the arguments in this case much contention as to what, prior to the coming into force of Act IV of 1882, was the law in British India relating to the rights and liabilities of mortgagors, first mortgagees and subsequent mortgagees inter se, and as to how far the law in that respect has been defined and amended by Act IV of 1882, I propose before attempting to construe Act IV of 1882 to refer as shortly as possible to such of the decisions of the Courts in India, and of their Lordships of the Privy Council, which I have been able to find as throw any light on the contention of the parties before us. Undoubtedly before the coming into force of Act IV of 1882, and also, as I have had reason to know, since the coming into force of that Act, first mortgagees and also second and subsequent mortgagees have, in suits on their mortgages, obtained decrees for sale of mortgaged or hypothecated immovable property without having redeemed or foreclosed the other mortgages or made the other mortgagees parties to their suits.

Such suits and decrees throw no light upon the questions I propose to consider, except in so far as they were the causes of subsequent litigation as to the rights of mortgagees who were not parties to them.

Most of the decisions which throw any light on the contentions of the parties here have been decisions in suits which were subsequently brought by such decree-holders for declarations that they were entitled to bring the property to sale under such decrees or in suits brought by other mortgagees either against such decree-holders or the purchasers at sales under such decrees for possession, for declarations of their rights as mortgagees, for declarations that such decree-holder could not under such decrees bring the property to sale without giving such other mortgagees an opportunity to redeem or without redeeming their mortgage, as the case might he, or for similar reliefs.

With the exception of Raghunath Prasad Vs. Jurawan Rai and Another, to which I shall refer later on, I am not aware of any case in which a second or subsequent mortgagee suing on his mortgage for a decree for sale of the mortgaged property and having made the prior mortgagee or mortgagees party or parties to his suit obtained on appeal or otherwise from any High Court in India a decree for sale of the mortgaged property or of any interest of his own or of the mortgagor''s in it except on his redeeming the prior mortgagee or mortgagees.

I shall now proceed to refer to the cases of which I am aware, taking them, as far as possible, in the order of date of the final decisions. In Syud Wajed Hossein v. Hafez Ahmed Rezah 17. W.R.C.R., 480 the plaintiffs sued for possession as purchasers at a sale held in execution of a decree upon a mortgage of the 11th of October 1859. The defendants resisted the suit on the ground that they had on the 15th of May 1868 by bill of sale purchased the property, the consideration of that bill-of-sale having been money advanced by them to pay off mortgages prior in date to that of the 11th of October 1859. In that case Loch and Ainslie, JJ., in 1872, gave the plaintiffs a decree for possession, conditional on their paying to the defendants all sums for principal and interest paid by them on account of the mortgages existing previous to the mortgage of the 11th of October 1859, and remitted the suit to the Court below that the amount so payable to the defendants might be ascertained and embodied in the decree.

In Ramu Naikan v. Subbaraya Mudali, 7. Mad. H.C. Rep., 229 the plaintiff sued to recover the amount due under a mortgage of 1869 by means of the mortgaged property, as the report says, which I understand to mean that the plaintiff sought a decree for sale on his mortgage. The suit was resisted by the second defendant on the ground that he was a prior mortgagee of the particular lands, and, as such, had a right to have the lands held liable for his debt first. The facts, so far as they are material, appear to have been that the second defendant having obtained a simple money decree on certain mortgage-bonds made between 1861 and 1870, by which the property in question had been hypothecated to him, brought the property to sale under his decree and purchased it for a sum considerably less than the amount which had been due under his mortgage-bonds. I infer from the report that the District Munsif had given the plaintiff a decree for sale, that on appeal the Civil Judge of Chittur had reversed so much of the District Munsif''s decree as related to the particular lands, that is, that the Civil Judge had dismissed the plaintiff''s suit to that extent, and that on appeal to the High Court of Madras, Holloway, Officiating C.J., and Kindersley, J., in 1873, affirmed the decision of the Civil Judge. In their judgment in that case they are reported to have said that "Dernburg justly observes that the subsequent mortgagee gets all to which he is entitled when he is allowed to redeem the prior mortgage."

That passage shows that those learned Judges were of opinion that a second mortgagee who had not redeemed could not maintain a suit for the sale of the mortgaged property or of any interest in it.

The decision of the Madras High Court in Ramu Naikan v. Subbaraya Mudali was referred to apparently with approval by their Lordships of the Privy Council in (1884) L.R. 11 I.A. 126 (Privy Council) Their Lordships did not suggest that in Ramu Naikan v. Subbaraya Mudali the Madras High Court had misapplied the principle of the shield.

In Vencata Chella Kandian v. Panjanadien ILR 4, Mad. 213 Turner, C.J., in September 1881, threw some doubts on the correctness of the decision in Ramu Naikan v. Subbaraya Mudali, and in reference to that decision said that "when a second mortgage is created in favor of a person who is not the holder of the first mortgage, the second mortgagee is entitled to pay off the first mortgage, or to sell the estate subject to the first charge. On the same ground of regard for the interests of all parties that dictates the preservation of the right created by the first charge, I am unable to see why the acquisition by the first mortgagee of the right remaining in the owner deprives the second mortgagee of his right to enforce his charge by a sale of the property subject to the rights of the first mortgagee. If the first mortgagee had not acquired the rights remaining in the owner it is unquestionable that the second mortgagee would have been entitled to call for a sale of the property subject to the rights of the prior incumbrancer. His right should not be defeated by a transaction to which he is no party. If it had been considered an objection to the preservation of his right that the first mortgagee might subsequently have applied to the Court to order a sale (and I do not think it is, for the purchaser under the second mortgage might redeem the first mortgage and prevent a sale), then a sale should have been ordered of the property to discharge both mortgages, and the proceeds should have been applied to their satisfaction in order of priority; but I believe the course which would have best fulfilled the contracts and secured the rights of the parties would have been to allow a sale subject to the first incumbrance."

The first comment to be made on those observations of Turner, C.J., is that from the point of view from which he regarded the case then before him they were entirely obiter. The second comment is that although Turner, C.J., was of opinion that "when a second mortgage is created in favor of a person who is not the holder of the first mortgage, the second mortgagee is entitled to pay off the first mortgage, or to sell the estate subject to the first charge," he does not explain how, if the first mortgage was an usufructuary mortgage with possession, the usufruct to be applied to the discharge of the principal and interest, the second mortgagee could have a right to redeem until the principal and interest had been satisfied by the usufruct, or how, in any other case, a second mortgagee could have a right to redeem a first mortgage the time for the redemption of which, as fixed by the mortgage contract, had not arrived, or, in other words, how a second mortgagee in such cases could by a transaction to which the first mortgagee was no party, have acquired a right as against him which their mortgagor did not possess.

The third comment is that Turner, C.J., referred to no authority in support of his view of the rights of a first and second mortgagee respectively. It would have enabled us to judge of the soundness or otherwise of those obiter dicta, if Turner, C.J., has referred to the authority, if any, which was present to his mind, or had given some indication as to whether he thought that the views which he was enunciating without any doubt or hesitation were consistent with the principles of law or equity which had before then been applied in India or in England. Those obiter dicta are the first judicial suggestions which I have been able to find that the rights of a second mortgagee as against a first mortgagee included a right to bring the mortgaged property or an interest in it to sale without even an offer to redeem the prior mortgage having been made.

In 1876 in the case of Kalian Das Vs. Khub Chand, Turner, J., had defined the rights as they then appeared to him of a second mortgagee. He is there reported to have said:-- "In the case now before the Court the mortgagor, instead of making a transfer of the whole of his interest in the property pledged, aliened it in part by the creation of a subsequent incumbrance in the nature of a conditional mortgage. He thereby conferred on the conditional mortgage the right to redeem the first mortgage at whatever time it could have been redeemed by the mortgagor, and the right, in the event of default being made in payment of the debt due to him, to foreclose and hold the property subject to the first incumbrance." The first incumbrance in that case was a simple mortgage. It does not appear whether Turner, J., then considered that a right to hold included a right to sell the mortgaged property subject to the first incumbrance.

In Gaya Prasad v. Salik Prasad ILR 3 All., 682 Stuart, C.J., Oldfield and Straight, JJ., in April 1881, held that a person who had been prior incumbrancer, and who subsequently to a mortgage of the same property to another person purchased the property intending to keep alive his prior incumbrance as a shield for his protection, could defeat a suit by the puisne incumbrancer to bring the property to sale. Although Pearson, J., dissented in that case, lie apparently dissented on the ground that in his opinion the pre-existing lieu of the prior incumbrancer had been extinguished by his purchase.

In Nilratna Bose Vs. Kasumunnissa Bibee, and Field, JJ., in May 1881, held that a patnidar should have been made a party to a mortgage suit relating to the property, and gave the patnidar a decree for redemption.

In Damodar Dev Chand v. Naro Mahadev Kelkar ILR 6 Bom., 11 Westropp, C.J., and Pinhey, J., in September 1881, held that a second mortgagee was entitled to be made a party to a suit by the first mortgagee on his mortgage, in order that he might have an opportunity of redeeming the first mortgage, and not having been a party to that suit, could not be deprived of that right by proceedings to which he was not a party. In the suit of the first mortgagee a decree for sale had been made, and the properly had been sold and purchased benami for the first mortgagee. In the suit of the second mortgagee a decree for redemption was made in his favor.

In Har Prasad v. Bhagwan Das ILR 4 All., 196 Oldfield and Brodhurst, JJ., in January 1882, followed the decision of the majority of this Court in Gaya Prasad v. Salik Prasad and held that the person who was entitled to the protection of a prior mortgage was, until his mortgage debt was satisfied, entitled to have a suit by a puisne incumbrancer to bring the mortgaged properly to sale dismissed.

In Muhammad Ibrahim v. Tek Chand Weekly Notes. 1882 p. 59 Stuart, C.J., and Oldfield, J., in March 1882, following Gaya Prasad v. Salik Prasad, dismissed a suit for sale brought by a puisne incumbrancer against a prior mortgagee.

In Mul Chand Kuber v. Lallu Trikam ILR 6 Bom., 404, the facts were that a house was mortgaged to the father of the defendant, was subsequently mortgaged by the same mortgagor to the plaintiff, and was still later purchased from the mortgagor by the father of the defendant, who in purchasing intended to keep his mortgage alive as a shield for the protection of his interest. The plaintiff having obtained a decree upon his mortgage attached the property. The attachment was successfully resisted by the defendant. Upon which the plaintiff brought a suit to establish his right to levy, by sale of the house, the amount due under his mortgage. Melvill, West and Pinhey, JJ., in March 1882, held that the defendant might properly require the redemption of his mortgage as the condition of the plaintiff''s enforcing his decree upon his mortgage against the property. That case had been referred to the Full Bench by Westropp, C.J., and Nanabhai Hari Das, J. By their referring order it appears that they were of opinion that the fair course was to permit the plaintiff to redeem the defendant''s mortgage.

In Shantapa v. Balapa, ILR 6 Bom., 561 Melvill and Pinhey, JJ., followed the decision in Mul Chand Kuber v. Lallu Trikam.

In Ali Hasan v. Dhirja I.L.R., 4 All., 518 an usufructuary mortgage of a 2-annas 6-pies share was in 1874 made to the plaintiff who was put in possession. In 1875 a portion of the same property was again mortgaged to the plaintiff. In July 1877, the 2-annas 6-pies shave less 2 pies was mortgaged to one Niamat, who took with notice of the previous incumbrances. In October 1877 the 2-annas 4-pies share, which had, in July 1877, been mortgaged to Niamat, was again mortgaged to the plaintiff. In September 1879, Niamat obtained a decree for sale of the 2-annas 4-pies share in enforcement of his lieu under his mortgage of July 1877. The plaintiff was not a party to that suit. On the 2nd of October 1879, the plaintiff purchased from one of the mortgagors--what had become of the other mortgagor I do not know--2-annas of the 2-annas 6-pies share mortgaged to him in 1874. Part of the consideration for that purchase was the principal and interest due under the mortgages of 1874 and 1875. On the 20th of November 1880, the defendants at an auction sale, held under Niamat''s decree, purchased the 2-annas 4-pies share. Thereupon the plaintiff brought his suit for a declaration that he was entitled to the proprietary right in, and possession of, the 2-annas share purchased by him. The above are the facts, so far as they are material, on the question before us. In June 1882, Tyrrell and Mahmood, JJ., held that the plaintiff was entitled to insist upon his prior charges being paid off before the defendants could either oust him or he entitled to absolute proprietary right in the property. At page 529 of the Report, Mahmood, J., is reported to have said "under this view, which in my judgment is consistent with the opinion of the Full Bench of this Court in Gaya Prasad v. Salik Prasad, I hold that all that the plaintiff was entitled to in this litigation was a declaration that as holder of the prior mortgages of 7th July 1874 and 17th July 1875, respectively, he is entitled to continue in possession by virtue of his said liens; that the rights purchased by the defendants-appellants are subject to these liens, and cannot be enforced as against the plaintiff till full payment of the moneys due to him under the mortgage-deeds abovementioned."

In Parsi v. Girand Singh Weekly Notes, 1885 p. 155 the plaintiffs in 1879 had purchased property over which they had held mortgages of the 28th of February 1876 and the 23rd of February 1877, part of the consideration for the purchase being set off against the money due under their two mortgages. On the 13th of May 1877 the mortgagor mortgaged the property to the defendant. In 1880 the defendant sued the mortgagor alone to enforce his hypothecation by sale of the property, and on the 11th of August of that year obtained a decree. On the defendant applying for attachment and sale the plaintiffs objected. Their objection was disallowed, and they brought their suit to have the attachment removed. Oldfield and Tyrrell, JJ., in April 1885, held that the plaintiffs by purchasing the property on which they had a prior charge had not lost the benefit of their charge, and that they were entitled to resist the sale of the property by the defendant, subsequent mortgagee, until their prior charge was satisfied. The amount of that prior charge had been ascertained to be Rs. 1,296-6-7, and those learned Judges decreed that the defendant could only bring the property or any part of it to sale on first paying to the plaintiff that sum.

In Gangadhara v. Sivarama ILR 8 Mad., 246 the plaintiff in February 1878, in a suit against Sivarama Mudali, obtained a decree on a compromise providing for payment of the judgment-debt and declaring certain lands, five plots, hypothecated as security for the payment in accordance with the terms arranged. That decree was registered. Of those lands plots Nos. 1, 2 and 3 had been mortgaged in 1866 by Sivarama Mudali to Pushpavanalingam Mudali, who, in October 1877, obtained a decree for the enforcement of his mortgage. On the 23rd of May 1878 Sivarama Mudali borrowed Rs. 3,500 from the defendants Nos. 2, 3 and 4, and mortgaged to them the five plots of land. Of that sum Rs. 1,900 were paid to Pushpavanalingam Mudali, who, in consideration of that payment, released his lieu on plots Nos. 1, 2 and 3. The plaintiff subsequently attached plots Nos. 1, 2 and 3 under his decree of February 1878; but on the objections filed by the defendants Nos. 2, 3 and 4, the properties were released from attachment, and thereupon the plaintiff brought his suit to have it declared that plots Nos. 1, 2 and 3 were liable to be sold in execution of his decree of February 1878, free from the incumbrance held by the defendants Nos. 2, 3 and 4. Turner, C.J., and Muttusami Ayyar, J., in 1884, holding that the plaintiff was entitled to sell plots Nos. 1, 2 and 3 under his decree of February 1878, made a declaration that such sale must be made subject to the lieu of the defendants Nos. 2, 3 and 4 for the Rs. 1,900 paid to Pushpavanalingam Mudali.

In Raghunath Prasad Vs. Sirbadh Rai and Others, Jurawan Singh and Daulat Kuar in 1866 mortgaged by an usufructuary mortgage three bighas of land to one Lachman Rai, and in 1874 mortgaged their 4-annas share, which included the three bighas, to the plaintiff. In 1878 the mortgagors for the purpose of paying off the mortgage of 1866, executed in favor of the defendants a deed of sale of the three bighas of land. Part of the purchase-money was applied to paying off the mortgage of 1866. The plaintiff in November 1882 brought his suit to bring the 4-annas share to sale by enforcement of his lin under his mortgage of 1874. That case came before a Division Bench of this Court in March 1885, when Oldfield, J., held that the mortgage of 1866 had not been extinguished, and that it afforded a defence to the plaintiff''s suit to bring the three bighas to sale. Mahmood, J., held that the defendants were entitled to the benefits of the mortgage of 1866, which they had paid off. He was, however, of opinion that the plaintiff was entitled to bring the three bighas to sale, but that such sale would be subject to the mortgage of 1866, to the benefit of which the defendants were entitled. The case went on appeal before the Full Bench of this Court in January. 1886, Raghunath Prasad Vs. Jurawan Rai and Another, at which time Mahmood, J., was not a member of the Court. The three bighas had been referred to in the proceedings in the Courts below as "land No. 111." The Munsif had decreed that "land No. 111 be exempted from the hypothecation lien." That decree was varied by the Full Bench in June 1886, by adding the words "in that property the interest of the plaintiff as second mortgagee only to be sold." That form of variation was proposed by Petheram, C.J., and was agreed to by Straight, Oldfield, Brodhurst and Tyrrell, JJ.

It is to be observed that the mortgage of 1866 was an usufructuary mortgage with possession, which, if it inured with all its benefits to the defendants, was one which the plaintiff when he brought his suit was not entitled to redeem. Under such circumstances it would be difficult to see what interest, if any, in the three bighas the plaintiff could sell beyond the right to possession on the determination of the mortgage of 1866 by the principal and interest being satisfied by the usufruct.

The effect of the decree of the Full Bench was to deprive the plaintiff of a lieu on the three bighas if he ever had one. No authorities were referred to in any of the judgments in the Full Bench. It does not appear whether the fact that the mortgage of 1866 was an usufructuary mortgage with possession distinguished, in the opinion of the Full Bench, that case from one in which the prior incumbrance was a simple mortgage ripe for redemption. Indeed it seems to me very doubtful whether the case was argued at all before the Full Bench, it having been assumed that the difference of opinion between Oldfield, J., and Mahmood, J., had arisen from some misapprehension as to the facts of the case.

In the case of Sri Matra Mautangui Debia Vs. Janki Prasad, the facts, so far as they are material, were that in 1872 Ungan and others by deed mortgaged certain property to the plaintiff. That deed was not registered, nor did it re quire to be registered under the Registration Act applicable to it. The mortgagors in 1880 executed another deed of mortgage in respect of the same property in favor of one Sundar Lal. That deed was registered. The mortgagors executed in 1881 another deed of mortgage in favour of Sundar Lal over the same property. That deed was not registered, nor did it require registration. In a suit on the deed of 1881 Sundar Lal got a decree, and under that decree Sundar Lal had the property attached and sold. It was purchased by the defendant Janki Das, who subsequently paid off the registered mortgage of 1880, and received the mortgage-deed of that date. The plaintiff subsequently brought his suit to recover by sale of the property the money due to him under his mortgage of 1872, and made Janki Das and the mortgagors defendants. That suit came in appeal before Oldfield and Mahmood, J., in March 1885. In the opinion of Oldfield, J., the question turned on the priority of the registered over the unregistered mortgage, and holding that there was such priority, he held that the suit should be dismissed. Mahmood, J., also held that the registered mortgage took priority over the unregistered mortgage, and that Janki Das having paid off the registered mortgage, was entitled to the benefits of it; but he held that the plaintiff was entitled to have the property sold under his unregistered mortgage of 1872 subject to the rights of priority which Janki Das had acquired by reason of his having paid off the registered mortgage of 1880.

In Dullabhdas Devchana v. Lakshmandas Sarup Chand I.L.R., 10 Bom., 88, in which the plaintiff sued to recover possession of land, the facts were as follows:--In 1870 Sambhu and his two sons mortgaged the lands in question to Har Lal without possession. In 1871 the mortgagors mortgaged the lands without possession to the defendant. On the 10th of June 1873 the mortgagors mortgaged the lands again to Har Lal. That mortgage purported to give Har Lal possession, and to have been given as security for the principal and interest due under the mortgage of 1870, interest then due being treated as principal, and for interest. On the 12th of June 1873 the mortgagors again mortgaged the lands to the defendant. The Mortgage-deed purported to give possession to the defendant. The consideration for that mortgage of the 12th June 1873 was the principal and interest due under the mortgage of 1871, the interest then due being converted into principal. In 1877 Har Lal obtained a decree for sale upon his mortgage of the 10th of June 1873. The defendant was not a party to that decree. At the sale held under that decree the plaintiff purchased, and, having in his attempt to obtain possession of the lands been obstructed by the defendant, contended that he was entitled to possession as he was not a party to Har Lal''s decree, and offered to pay the plaintiff the amount of his purchase money or to vacate the lands on satisfaction of his own mortgage lien. In August 1885 Sargent, C.J., and Birdwood, J., being of opinion that there was nothing to show an intention to forego the benefit of the security created by the mortgage-deed of 1870, held that the decree of 1877 conferred an absolute title on the purchaser (the plaintiff) at the auction sale free from all incumbrances created by the mortgagors subsequent to the mortgage of 1870; but that the defendant not having been made a party to Har Lal''s suit had not lost his right of redemption, which was still open; and although the plaintiff''s suit was not one for foreclosure, they decreed that "the defendant do deliver possession to the plaintiff, but that he be at liberty to redeem by payment to the plaintiff, within six months, of the amount which would be due on the mortgage of the 15th July 1870, if the same had remained unaffected by the mortgage of 1873, or, in default, should remain for ever foreclosed. The defendant to pay plaintiff his costs throughout."

That is a most important decision, as it not only indicates, in the opinion of those learned Judges, who should have been parties to the suit on the mortgages, but what the decree should have been if the proper parties had been parties to that suit.

The case of Mohan Manor v. Togu Uka ILR 10 Bom. 224 which was decided by Sargent, C.J., and Birdwood, J., is an authority that a prior mortgagee who purchased the mortgage property at a sale in execution of a decree obtained by him on the 26th of January 1876 on his mortgage, to which decree the second mortgagee was not a party, did not lose the benefit of the security created by the first mortgage, and could use it as weapon of attack in his suit against the second mortgagee for possession, who, in that case, was allowed six months within which to redeem on payment of what was due on the first mortgage. The Court directed that the account of the mortgage debt should be taken on the basis of what was due on or by the decree of the 26th of January 1876.

In Zalim Gir v. Ram Charan Singh ILR 10 All. 629 Bhairo Singh, in 1871, executed a mortgage deed in favor of Panna Lal in consideration of an advance, and as security for such advance hypothecated his zamind�ri property. In 1872 Bhairo Singh executed a similar deed in favor of Panna Lal, the consideration being a further advance. In 1874 Bhairo Singh mortgaged 117 bighas 7 biswas and 10 dhurs of sir and cultivatory land belonging to his zamind�ri to Zalim Gir, the defendant. In 1877 Bhairo Singh made a conditional sale of his zamind�ri to Ram Charan Singh, the plaintiff, the consideration being Rs. 4,700, which was required for, and applied to the paying off of, the mortgages of 1871 and 1872, held by Panna Lal. In 1887 Bhairo Singh made another mortgage to Zalim Gir of the property mortgaged by the bond of 1874. Zalim Gir having brought a suit against Bhairo Singh upon the bonds of 1874 and 1878, obtained on the 9th of November 1881, a decree for Rs. 2,064-14. Zalim Gir proceeded to execute that decree on the property mortgaged to him, and the sale was advertised for the 20th of November 1883. Ram Charan Singh having taken proceedings under the deed of 1877 the sale to him was, on the 19th March 1883, foreclosed. On the 19th of November 1883, Ram Charan Singh brought his suit against Zalim Gir to have it declared that Zalim Gir was not entitled to bring the property to sale. Straight and Tyrrell, JJ., in July 1888, being of opinion that Ram Charan Singh was entitled to pay the securities of 1871 and 1872 in aid as prior incumbrances, made a decree declaring that Zalim Gir should only be permitted to bring the property to sale under his decree in respect of his mortgage of 1874, when he had satisfied the mortgage bonds of 1871 and 1872, then in the possession of Ram Charan Singh.

In (1889) L.R. 17 I.A. 201 (Privy Council) the facts and transactions were somewhat complicated, but so far as is material for the consideration of the question before us they appear to have been shortly as follows:--

The plaintiff was a puisne mortgagee of 12 annas of mauza Sindilla in the Gaya district. He had also obtained transfers of other mortgages upon the same estate, and had at judicial sales bought fractional parts of it. The defendants had also acquired mortgage interests in the mauza--some prior and some subsequent to the plaintiffs. They were sued by the plaintiff who sought to redeem the prior incumbrances so as to make his own charges the first on the property. In the alternative the plaintiff claimed to have a direction made for the sale of the property, and an order that out of the proceeds the mortgage money due to all the parties should be paid according to their several priorities. The first Court decided the plaintiff was entitled to redeem; but, being of opinion that the usual practice was to decree a sale when the mortgagor did not appear to pay off incumbrances, the net proceeds of the sale being ordered to be divided among the mortgagees according to their priority, instead of giving a decree for redemption, made a decree for sale on the plaintiff''s alternative prayer for relief, and gave certain directions to be observed in the taking of the accounts. The first Court by its decree of the 17th of September 1883 directed, so far as is material for our consideration here, a sale of the entire estate free from all incumbrances, the upset price to be fixed at a sum equal to the aggregate amounts of the purchase-money paid by the defendants Fazl-ul-Bari and Zahur Fatima, being the value of their proprietary right and mortgage liens, but without interest, they having been in possession of their shares, plus costs of suit and costs of sale, both parties to have liberty to buy at the sale, of which the proceeds were to be applied in discharge of the incumbrances found by the accounts in order of their priority, and any surplus to go to the proprietors in proportion of their shares. On appeal, Prinsep and Grant, JJ., dismissed the suit as to certain portions of the property (17 dhurs and a 2-annas share) holding that as to those portions of the property the plaintiff had not established title; but in other respects affirmed the decree for sale of the first Court. On appeal to Her Majesty in Council, their Lordships of the Privy Council differing from the High Court, held that the 17 dhurs and the 2-annas share were liable to be sold at the suit of the plaintiff. Their Lordships gave certain directions as to the interest which was to be allowed in taking the accounts. Their Lordships discharged the order of the High Court, and instead made an order declaring the plaintiff''s right to redeem Zahur''s prior incumbrance; and in the event of his exercising such right to redeem, they declared the rights of Zahur in respect of her previous incumbrance to redeem the plaintiff.

They directed the Court to make such enquiries and take such accounts as were proper for carrying their declarations into effect, and to fix reasonable periods of time within which the plaintiff and Zahur should exercise the lights of redemption declared to belong to them. Their Lordships also declared that if the plaintiff and Zahur, respectively, did not exercise their rights of redemption within such time as the Court by its final order in that behalf might direct, they should respectively be foreclosed and debarred from all right of redemption, and in all other respects they affirmed the decree of the first Court of the 17th of September 1883.

Excepting the decision in Raghunath Prasad v. Jurawan Rai ILR 8, All., 105, possibly the judgment of Turner, J., in Kalian Das Vs. Khub Chand, his judgment in Vencata Chella Kandian v. Panjanadien ILR 4, Mad., 213, the decision in Gangadhara v. Sivarama I.L.R., 8, Mad., 246, the judgment of Mahmood, J., in Raghunath Prasad Vs. Sirbadh Rai and Others, , and his judgment in Sri Matra Mautangui Debia Vs. Janki Prasad, the decisions to which I have referred show, and I think rightly, that as well before as since Act IV of 1882 came into force, a mortgagee had no right to bring mortgaged property to sale under his mortgage without redeeming the prior mortgagee, if any, or affording the subsequent mortgagee, if any, an opportunity to redeem, and that in a suit by a mortgagee for sale on his mortgage, the other mortgagees, whether prior or subsequent, were necessary parties; and further that the property which might effectively be brought to sale under a decree for sale in a mortgage suit was the specific immovable property, and not merely the rights and interests; of the plaintiff and his mortgagor in such property. I may, I think, fairly assume that those of the decisions to which I have referred which were prior to 1882 were considered by the Legislature and its advisers before the Legislature passed Act IV of 1882, the Preamble of which is as follows:-- "Whereas it is expedient to define and amend certain parts of the law relating to the transfer of property by act of parties, it is hereby enacted as follows:" I now propose to consider Act IV of 1882, so far as it bears on the questions before us. I shall also refer to section 25 of the English Statute 44 and 45 Vic., c. 41, which has been pressed upon our attention, and which it was contended, was followed by the Indian Legislature in Chapter IV of Act IV of 1882. The Transfer of Property Act, 1882 (Act IV of 1882), received the assent of the Governor-General on the 17th of February 1882, and came into force on the 1st of July 1882. The history of that Act is to be found at the close of the Introduction to the Act in Dr. Whiteley Stokes'' Anglo-Indian Codes. The transfer of Property Act, 1882, differs in many important particulars with regard to mortgages from the Conveyancing and Law of Property Act, 1881 (44 and 45 Vic., c. 41), which having received the Royal Assent on the 22nd of August 1881, came into force on the 31st of December 1881. We may fairly assume that the Legislature and its advisers, before the Transfer of Property Act, 1882, was passed, were aware of the provisions contained in the 44 and 45 Vic., c. 41. A comparison of section 25 of that Statute with some of the sections in Chapter IV of Act IV of 1882 will show how dissimilar in many important respects are the provisions contained in the latter sections to the provisions contained in section 25 of 44 and 45 Vic., c. 41. Many of the provisions contained in section 25 of the 44 and 45 Vic., c. 41, appear to me to be more or less dissimilar to the provisions contained in sections 67, 74, 86, 87, 88, 89, 90, 92, 93, 96 and 97 of Act IV of 1882. Under sub-section 1 of section 25 of 44 and 45 Vic., c. 41, any person entitled to redeem mortgaged property may have a judgment or order for sale instead of for redemption in an action brought by him either for redemption alone, or for sale alone, or for sale or redemption in the alternative. Under Act IV of 1882, section 60, a mortgagor has, after the principal money has become payable, a right of suit for redemption. u/s 75 every second or subsequent mortgagee as against a prior mortgagee or mortgagees has a right of suit for redemption if his mortgagor has a right of suit for redemption against such prior mortgagee or mortgagees, but not otherwise. Section 91 gives certain other persons a right of suit for redemption. I do not suppose that it could be contended that any of the persons mentioned in section 91 could maintain a suit against a prior incumbrancer, unless such person derives title through or from a person who had, prior to the suit, aright of suit for redemption against such prior incumbrancer, or in other words, that any of the persons referred to in section 91 could be in a better position to maintain a suit for redemption against a prior incumbrancer than would a second or subsequent mortgagee u/s 75. In a suit for redemption under sections 92 and 93 an order of sale cannot be made without giving the plaintiff an opportunity, after accounts have been taken or the amount due has been declared, of redeeming, and if the plaintiff makes default in paying such amount, it is on the application of the defendant that the Court can make final order for sale. Under sub-section 2 of section 25 of the 44 and 45 Vic., c. 41, in any action, whether for foreclosure, or for redemption, or for sale, the Court, on the request of the mortgagee or of any person interested either in the mortgage money or in the right of redemption, and without allowing any time for redemption or for payment of any mortgage money, may, if it thinks fit, direct a sale of the mortgage property on such terms as it thinks fit, including if it thinks fit, the deposit in Court of a reasonable sum, fixed by the Court, to meet the expenses of sale and to secure performance of the terms. Under that section, Fry, J., in Woolley v. Colman L.R. 21 Ch. D., 169, held that a reserved price large enough to cover what was due to mortgagees who opposed the sale must be fixed; that the plaintiff should give security for the costs of the sale, the conduct of which was given to him, and which was directed to take place out of Court; and that the proceeds of the sale should be brought into the Court.

The rights of a mortgagee as against his mortgagor, so far as the right to maintain a suit for foreclosure or sale are concerned, are defined by section 67 of Act IV of 1882. Section 75 of that Act gives, by declaration of the law, a second or subsequent mortgagee, so far as regards redemption, foreclosure and sale of the mortgage property, the same rights against the prior mortgagee or mortgagees as his mortgagor has against such prior mortgagee or mortgagees, and the same rights against the subsequent mortgagees, if any, as he has against his mortgagor. Whether the suit be for foreclosure under sections 86 and 87 or for sale under sections 88 and 89, an opportunity must be allowed the defendant, after accounts have been taken, or the amount due has been declared, of paying the amount due before final foreclosure or final order for sale.

I think it is from the sections to which I have referred apparent that the Legislature in passing Act IV of 1882, did not in Chapter IV follow section 25 of 44 and 45 Vic., c. 41.

Before proceeding further to consider Chapter IV of Act IV of 1882, I shall refer to Section 2 of that Act. By section 2 of Act IV of 1882 it is enacted that nothing in the Act contained shall be deemed to affect "(c) any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability: or (d) save as provided by section 57 and Chapter IV of this Act, any transfer by operation of law, or by or in execution of a decree or order of a Court of competent jurisdiction." The procedure by which a right or liability may be determined or enforced or a relief may be obtained is not a right, liability or relief within the meaning of saving clause (c) of section 2. On that point Ganga Sahai v. Kishen Sahai I.L.R., 6 All., 262 and Rakhal Chunder Bose Vs. Bhobo Sundari Debi, are authorities. As was said by James, L.J., in Warner v. Murdoch L.R., 4 Ch. D., 752 "no one has a vested right in any particular form of procedure."

I have referred to saving clause (c) of section 2 of Act IV of 1882, as it has been arranged that we should in our judgment in this appeal express our opinions as well on the general principles relating to the rights, liabilities and reliefs of the parties to this appeal, as on the general principles relating to the rights, liabilities and reliefs of the parties to another appeal which has been argued, the mortgages in which were made prior to the coming into force of Act IV of 1882. In my opinion the rights, liabilities and reliefs of mortgagors and mortgagees, including second and subsequent mortgagees, so far as redemption, foreclosure and sale are concerned, were in British India before Act IV of 1882 came into force what Chapter IV of that Act has defined and declared such rights, liabilities and reliefs to be. The procedure by which such rights and liabilities were allowed to be determined and enforced, and by which such reliefs were allowed to be obtained, was not always the same and was in some respects inconsistent with the provisions of Chapter IV of Act IV of 1882.

It has been contended that sections 96 and 97 of Act IV of 1882 indicate that under Chapter IV of that Act a Court may, at the suit of a second mortgagee, order the mortgaged property to be sold subject to the prior mortgage, that is, order that the property be sold without the prior mortgage being redeemed, and without the consent of the prior mortgagee to the property being sold freed from the prior mortgage being given. Section 96 is not happily worded; but I cannot find in Chapter IV any provision enabling a Court to make such an order or protecting the interests of the prior mortgagee. If such an order could be made, certainly section 97 would not protect his interests. I regard the words "subject to a prior mortgage" in section 96 as mere words of description. If section 96 were intended to have the meaning which it has been contended it has, it ought to have been--"If any property the sale of which is directed under this chapter is ordered to be sold subject to a prior mortgage, the Court may, &c." It has been contended that as section 295 of the CPC contemplates a judgment-creditor bringing to sale in execution of an ordinary money-decree mortgaged property, and selling it subject to a mortgage or charge, and also contemplates immovable property being sold in execution of a decree ordering its sale for the discharge of an incumbrance thereon, we should construe Chapter IV of Act IV of 1882 so as to give to a second mortgagee the same rights which a judgment-creditor would have under his ordinary money-decree. That, in my opinion, cannot he done. We must construe each Act on its own wording and in accordance with its own context. Besides the cases are not similar. In the one case the second mortgagee has the rights and reliefs which Act IV of 1882 declares he has under the mortgage contract which he accepted. They are the creation of a mortgage contract controlled by the law relating to mortgage contracts. In the other case the judgment-creditor''s decree may have been obtained in a suit brought upon any one of a great variety of causes of action in no way dependent on, or relating to a mortgage contract. Although such judgment-creditor would, u/s 91 of Act IV of 1882, when he had attached the mortgagor''s interest in the property, be a person entitled to redeem and to institute a suit for redemption, he would not, unless he were a mortgagee of the property which he sought to sell, be compelled by section 99, in order to bring the property to sale, to bring a suit u/s 67 of that Act. The case of immovable property being sold in execution of a decree ordering its sale for the discharge of an incumbrance referred to in clause (c) of section 295 of the CPC must of necessity, if the suit was instituted after the 1st of July 1882, be a case in which the order for sale had been made under Chapter IV of Act IV of 1882.

The plaintiff''s mortgage of the 6th of August 1885 is a simple mortgage. This suit was instituted after the mortgage money had become payable to him. No decree had been made for redemption, nor had the mortgage-money been paid or deposited. If that mortgage had been the first and only mortgage, it is clear that under sections 67 and 88 of the Transfer of Property Act 1882, the plaintiff would have been entitled to a decree to the effect mentioned in the first and second paragraphs of section 86, and also ordering that in default of the mortgagor paying as therein mentioned the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale (after defraying there out the expenses of the sale) be paid into Court and applied in payment of what would be found due to the plaintiff in account, and that the balance, if any, be paid to the mortgagor-defendant or other persons entitled to receive the same. Does the fact that the plaintiff is not a sole, but a second mortgagee, and that there is a subsequent mortgage, namely, that of the 21st August 1885, alter the rights which he would have has under sections 67 and 88 if he had been the sole mortgagee? The answer to that question must in my opinion, depend on a consideration of other sections of the Transfer of Property Act, 1882. In considering those sections, and in endeavouring to ascertain what was the intention of the Legislature, we must bear in mind that the property which a Court is, u/s 88 to order to be sold, is the "mortgaged property or a sufficient part thereof."

The plaintiff, in order to bring the mortgaged property to sale, was compelled by section 99 to bring his suit u/s 67 of the Act. The plaintiff having had notice of Hari Prasad''s mortgages was bound by section 85 to join Hari Prasad as a party to the suit. What is the effect on his suit of his not having joined Mata Prasad I will consider later on.

The object of section 85 must be to give to all the parties thereby required to be joined as parties to the suit an opportunity of protecting their own interests, and to enable the Court to determine the respective rights of all such parties, and to pass a decree and order which would be consistent with, and not in violation of, such rights, and thus to prevent opportunities for harassing and complicated subsequent litigation arising.

The rights of a second or subsequent mortgagee, so far as regards redemption, foreclosure and sale of the mortgaged property arc, by reference, declared and defined by section 75. Those rights, as I have pointed out, are as against the prior mortgagee or mortgagees the same rights as his mortgagor has against such prior mortgagee or mortgagees, and no more, and as against subsequent mortgagees, if any, the same rights which he has against his mortgagor and no more.

Now what are the rights which the mortgagor has against a mortgagee, so far as redemption or sale are concerned?

Those rights of the mortgagor, so far as mortgages other than usufructuary mortgages are concerned, are declared and defined by sections 60 and 61. The right of the mortgagor u/s 60 is a right to redeem, which is to be enforced by a suit for redemption. The right to redeem does not, u/s 67, arise until the principal money has become payable. As the right of the second or subsequent mortgagee as against a prior mortgagee is confined to the right which the mortgagor has against such prior mortgagee, let us see what is the decree which a mortgagor can, in a properly framed suit on a mortgage other than an usufructuary mortgage obtain against his first mortgagee. That decree is a decree u/s 92 "ordering that an account be taken of what will be due to the defendant for the mortgage-money and for his costs of the suit, if any, awarded to him on the day next herein-after referred to, or declaring the amount so due at the date of the decree; that upon the plaintiff paying to the defendant or into Court the amount so due on a day within six months from the date of declaring in Court the amount so due, to be fixed by the Court, the defendant shall deliver up to the plaintiff or to such person as he appoints, all documents in his possession or power relating to the mortgaged property, and shall retransfer it to the plaintiff free from the mortgage and from all incumbrances created by the defendant or any person claiming under him: or, when the defendant claims by derived title, by those under whom he claims and shall, if necessary, put the plaintiff into possession of the mortgaged property; and that if such payment is not made on or before the day to be fixed by the Court, the plaintiff shall (unless the mortgage be simple or usufructuary), be absolutely debarred of all right to redeem the property, or (unless the mortgage be by conditional sale) that the property be sold."

It is obvious from section 93 that in case of default by the plaintiff in paying the amount due, it is the defendant, and not the plaintiff, who can obtain in one case an order that the plaintiff be debarred of all right to redeem, and in the other that the mortgaged property be sold.

In case of an order for sale under sections 92 and 93, the order must be that "such property or a sufficient part thereof be sold, and that the proceeds of the sale (after defraying there out the expenses of the sale) be paid into Court, and applied in payment of what is found due to the defendant, and that the balance be paid to the plaintiff or other persons entitled to receive the same."

Section 93 further enacts that "on the passing of any order under this section the plaintiff''s right to redeem, and the security, shall, as regards the property affected by the order, both be extinguished."

As I read the sections of the Transfer of Property Act, 1882, relating to the rights and liabilities of mortgagors and mortgagees the word "property" is used throughout those sections as meaning the actual immovable property mortgaged, and not as meaning merely particular rights and interests in such property as distinguished and separated from the actual immovable property itself. In other words, the word "property" is, in my opinion, used throughout Chapter IV of the Transfer of Property Act, 1882, in the same sense and with the same meaning as that word is used in section 58, where a mortgage is defined as "the transfer of an interest in specific immovable property for the purpose of securing the payment, &c." If, as has been contended, the Legislature had intended that a bare right to redeem, as apart and distinguished from the immovable property, should be treated and considered as "property," as that word is used throughout Chapter IV of Act IV of 1882, the Legislature could have so enacted; but in my opinion it has not. The property to be sold within the meaning of section 67 must mean the immovable property. "The mortgaged property or a sufficient part thereof" in section 88 must mean the mortgaged immovable property or a part of it, and in neither section can the word "property" mean merely the bare rights and interests of a mortgagor, although the sale of the immovable mortgaged property under a decree for sale in a properly framed suit would carry with it such rights and interests.

In a suit for foreclosure the defendant in one event is to be put into possession of the property, and in the other possession of the property is to be delivered to the plaintiff. In a suit for redemption the plaintiff is in one event to be put into possession of the mortgaged property, and in the other possession of the property is be delivered to the defendant. By section 91 the right which (a) any person (other than the mortgagee of the interest sought to be redeemed) having any interest in, or charge upon the property, or (b) any person having any interest in, or charge upon the right to redeem the property, or (f) the judgment creditor of the mortgagor, when he has obtained execution by attachment of the mortgagor''s interest in the property, has, is a right to redeem or to institute a suit for redemption of the "mortgaged property." It is, in my opinion, obvious that in section 91 an "interest" in the property is not synonymous with the "mortgaged property." In section 95 actual possession of the mortgaged property, and not the possession of an interest in the mortgaged property, or a right to the possession of the mortgaged property, must be the possession referred to.

To construe the word "property" as it is used in Chapter IV of Act IV of 1882 otherwise than as I construe it, would, it appears to me, necessarily lead to the conclusion that under that chapter a bare right which is known in England as an equity of redemption can be brought to sale and sold.

It has been contended that "immovable property" as defined in clause (5) of section 2 of the General Clauses Act, 1868, (Act I of 1868) includes the rights and interests of a mortgagor or of a mortgagee, and, for example, of a second mortgagee in mortgage property. Whether or not that contention be well founded, it would, in my opinion, be repugnant to the context to hold that the word "property," as it is used in Chapter IV of Act IV of 1882, means rights and interests in mortgaged property as distinct from the actual immovable property, as, for instance, land itself. The law in England or works on Equity or Jurisprudence can, in my opinion, no more help us to a construction of the word "property" in Chapter IV than can Webster''s Dictionary.

Now let us see whether it could possibly have been the intention of the Legislature that a second mortgagee should, without redeeming a prior mortgage, be entitled to bring the mortgaged property, or any part of it, to sale under the Transfer of Property Act; and having regard to section 99, it is only by a suit under that Act that he could, if at all, bring such property or any part of it to sale. It could not have been the intention of the Legislature to give to a second mortgagee as against the prior mortgage more extensive rights than the mortgagor had against such prior mortgagee. If the prior mortgage was an usufructuary mortgage, under which the mortgagee was authorised to pay himself the mortgage-money from the rents and profits of the property, the mortgagor''s right was to recover possession of the property when such money was paid. The mortgagor could not, either before or since the Transfer or Property Act, 1882, came into force, redeem or get possession of or bring to sale such property or any part of it until the usufruct had satisfied the mortgage-money. I fail to see on what principle the second mortgagee could redeem that property or bring it or any part of it to sale, or how he by a subsequent contract to which the prior mortgagee was not a party could deprive that prior mortgagee of any of the benefits of his prior contract.

Let us take another case, namely that of a prior simple mortgage, the time for payment of the principal money of which had not arrived. In that case the mortgagor could not, either before or since the Transfer of Property Act, 1882, came into force, redeem or bring to sale the hypothecated property. On what principle could the second mortgagee redeem or bring that property to sale, or how could he under his subsequent contract obtain the right to deprive the prior mortgagee of the benefits of his prior contract by redeeming or bringing to sale before the due date of that prior mortgage the property or any part of it which had been hypothecated as security for the repayment of the mortgage-money of the first mortgage?

It has been contended that, if my construction of Act IV of 1882 be the correct one, cases of great hardship would occur, and as an instance, a case has been supposed in which there are two mortgages of the same property, the first of which was made on the 1st of January 1890, the 1st of January 1900 being the date when, according to the mortgage contract, the principal money might be repaid and the mortgage be redeemed; and the second mortgage made on the 1st of February 1891, the 1st of February 1893 being the date when, according to the mortgage contract, the principal money should become due and repayable. It has been contended that in such a case it would be hard and unjust to prevent the second mortgagee from instituting and successfully maintaining a suit to obtain repayment of his mortgage-money by sale of the mortgaged property until the 2nd of January 1900, when his mortgage contract made the money repayable on the 1st of February 1893.

I can see no injustice in such a case; and as to hardship, if there were any, the second mortgagee brought it upon himself. If the second mortgagee had, before he advanced his money on the second mortgage, notice in fact of the first mortgage, he advanced his mortgage money with his eyes open. If the first mortgage was registered, the second mortgagee could by a search in the Registry have ascertained the nature of the security which he was taking. It the first mortgage was not one which, in order to make it available against the immovable property comprised in it, it was necessary to register under the Registration Act of 1877 (Act III of 1877), and was not in fact registered, the second mortgagee could obtain priority for his second mortgage by registering it, provided he had not had notice of the first mortgage.

On the other hand, it appears to me that it would be grossly unjust and inequitable to deprive a first mortgagee of any of the benefits of his mortgage contract for the advantage of the second mortgagee, to whose contract the first mortgagee was not a party and who had not been induced to enter into that contract by any representations of the first mortgagee such as would entitle the second mortgagee to relief against the first mortgagee.

Having regard to section 89, and particularly to the latter half of it, I am of opinion that the suit for sale u/s 88 can only be brought by a person entitled to foreclose against a person having a right to redeem. As I construe Act IV of 1882 a second mortgagee, if he desires'' to bring the mortgaged property or any part of it to sale, must bring his suit under that Act; and that suit, so far as it is as suit against the mortgagor, must be one for sale; so far as it is a suit against the prior mortgagee, it must be a suit under sections 92 and 93, in which case without redemption he could not get an order for sale of the mortgaged property or any part of it u/s 88 against the mortgagor, and his suit so far as it is a suit against the subsequent mortgagees, must be a suit for foreclosure of sale. The suit before us in appeal is not such a suit. I would be disposed even at this stage of the suit to allow the plaintiff to amend in order that such relief as he might be entitled to might be granted to him, if in other respects the suit was one in compliance with Act IV of 1882. But it is not. Mata Prasad, the mortgagee of the 21st of August 1885, was not joined as a party to this suit. Mata Prasad''s mortgage was a registered mortgage, and Mata Prasad''s suit on his mortgage was instituted in the Court of the Subordinate Judge of Gorakhpur on the same day, the 7th of January 1877, on which the present plaintiffs suit was instituted in the same Court--Mata Prasad''s suit being entered in the Court Register of original suits as No. 2 of 1887 and the plaintiff''s as No. 3 of 1887. The two suits were heard together by the Subordinate Judge.

Having regard to those facts, and to section 3 of Act IV of 1882, which enacts, so far as is material, that "a person is said to have ''notice'' of a fact when he actually knows that fact, or when, but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it,"--I am bound to hold that the plaintiff had, within the meaning of section 85 of Act IV of 1882, notice of the interest of Mata Prasad in the property comprised in the plaintiff''s mortgage here in suit, and that not having joined Mata Prasad as a party to this suit the plaintiff has failed to comply with the imperative condition of section 85 of Act IV of 1882. If the plaintiff had through an oversight omitted, in the first instance, to join Mata Prasad, he could have applied u/s 32 of the CPC to have Mata Prasad made a defendant. He never did so. Notwithstanding section 34 of that Code, I am of opinion that we must act upon the imperative words in section 85 of Act IV of 1882. At this stage of the suit I think we ought not to exercise the discretionary power vested in a Court u/s 32 of the Code of Civil Procedure, particularly as the suit is not one which, without other amendments involving practically a fresh trial could be maintained. It is necessary that litigants should be made to know and feel that the Statute Law, when it affects their rights of suit, must be complied with, and that in such a case as this Chapter IV of Act IV of 1882 must not be ignored and treated as a dead letter. Section 85 was advisedly, and with the object of preventing multiplicity of suits, introduced into Act IV of 1885, and we must give effect to it by dismissing, as I would on that ground alone if there were no other, this appeal with costs, and confirming the dismissal of the suit so far as it has been dismissed below with costs.

Mahmood, J.

This case is so closely connected with S.A. No. 1813 of 1888 that both these cases were disposed of together by the two Courts below, and I think it will be convenient to dispose of them here in one and the same judgment.

Dealing with these two cases together, the facts, although clearly stated in the judgment of the learned Judge of the lower appellate Court, may be recapitulated here, since the points of law which they raise are important and have been referred to a Full Bench consisting of all the members of this Court.

The facts are these. Two brothers Kazim Husain and Nadir Husain owned shares in various villages and they have dealt with those shares by various deeds of transfer which, so far as these two cases are concerned, require mention only of the following transactions:--

(1.) Both Kazim Husain and Nadir Husain executed a simple mortgage in favour of the defendant Hari Prasad, hypothecating their 8 annas share in mauza Barwa Kutwa and their 5 annas and 4 pies share in mauza Bhisia Kattiya, covenanting that they would repay the amount of money due on the mortgage in the course of one year, that till such payment they would not alienate the hypothecated property, and that in default of such payment, the money should be recoverable by sale of the hypothecated property in due course of the law. The amount for which this hypothecation was made is represented in the deed to be Rs. 2,901, and the deed is dated the 10th September, 1882.

(2.) On the 23rd February, 1884, the same mortgagors, namely Kazim Husain and Nadir Husain, took a further advance from the same mortgagee, viz., Hari Prasad, of a sum of Rs. 2,799 and executed a simple mortgage hypothecating again their 8 annas share in the above-mentioned mauza Barwa Kutwa and only a 4 annas share in mauza Bhisia Kattiya together with other shares in five other villages of which express mention is not necessary for the purposes of this case. I may mention however, that the deed contains a covenant to the effect, that the money due upon the bond would be repaid within a year, that till such payment the mortgagors would not alienate the hypothecated property, and that in default of payment, the mortgagee would be entitled to recover the money due upon the mortgage by enforcement of the mortgage.

(3.) On the 6th August, 1885, a third transaction took place to which the aforesaid mortgagee Hari Prasad was no party. This transaction was a simple mortgage executed by the above-mentioned Kazim Husain alone in favour of the plaintiff Matadin Kasodhan in lieu of Rs. 1,000 hypothecating the mortgagor''s 4 annas share in mauza Barwa Kutwa and 2 annas share in mauza Bhisia Kattiya together with certain small shares in two other villages. The money thus borrowed was promised to be repaid within three months, and in default of such payment it was covenanted inter alia that the properties hypothecated were to be held as security for repayment of the loan and that till such repayment had taken place, the hypothecated properties could not be alienated by the mortgagor. The terms of the covenants contained in this hypothecation deed are of special importance because the suit from which this appeal has arisen is based upon this document. In view of this circumstances and with reference to what may follow in this judgment it is necessary to point out that the 4 annas share of mouza Barwa Kutwa, which formed part of the property hypothecated in this bond by the mortgagor Kazim Husain (defendant) is the same 4 annas share as that which, he, conjointly with his brother Nadir Husain, had already hypothecated to Hari Prasad by the two earlier deeds which I have mentioned, namely, the simple mortgage deeds of the 10th September, 1882, and the 23rd February, 1884.

(4.) The fourth transaction is a simple-mortgage executed by Nadir Husain alone on the 12th August, 1885, whereby in lieu of Rs. 1,999 he hypothecated his Very same 4 annas share of mauza Barwa Kutwa to Hari Prasad; defendant, along with other property of which specific mention is not necessary. It is also needless to say that Hari Prasad, the mortgagee (defendant), already held this 4 annas share of Nadir Husain in mortgage under his two earlier deeds of the 10th September, 1882, and the 23rd February, 1884. But I may mention here that the deed of the 12th August, 1885, contains a covenant to the effect that the money was to be repaid within one year, and that till such repayment, the mortgagor would not alienate the mortgaged property.

(5.) The fifth transaction is another simple mortgage executed by Kazim Husain alone in favour of Mata Prasad, alias Chingan Ram, who is plaintiff in the suit out of which the connected S.A. No. 1213 of 1888 has arisen. The deed is dated the 21st August, 1885, and the amount for which it was executed is Rs. 999 and as a security for the repayment of the money the same 4-annas share in mauza Barwa Kutwa, as that which was covered by the above mentioned mortgages of the 10th September 1882, the 23rd February 1884, in favour of Hari Prasad, and the 6th August 1885, in favour of Mata Din Kasodhan, was given as mortgage security along with some other property. The term for repayment of this loan was fixed to be three months, and the deed whilst containing the ordinary covenants in a hypothecation bond also covenants that till repayment of the loan the hypothecated property could not be alienated by the mortgagor. This deed is the basis of the suit out of which the connected S.A. No. 1213 of 1888 has arisen.

(6.) Then comes the most important transaction which affects these two connected suits and which indeed is probably the main reason why this case has been required to be considered by a bench consisting of all the members of the Court. The transaction is a deed of sale executed by the abovementioned brothers Kazim Husain and Nadir Husain jointly on the 20th September, 1886, in favour of the above mentioned Hari Prasad (defendant), whereby they in lieu of Rs. 14,530, stated in the deed to be the amount then due to the abovementioned mortgagee Hari Prasad under the abovementioned hypothecation bonds of the 10th September 1882, the 23rd February, 1884, and the 12th August 1885, sold their rights and interests in the 8-annas share of mauza Barwa Kutwa which already stood mortgaged not only to Hari Prasad, the vendee under the hypothecation deeds mentioned, but also to Matadin Kasodhan under Kasim Husain''s deed of 6th August, 1885, and to Mata Prasad under the deed of 21st August, 1885, so far as the 4-annas share of Kasim Husain was concerned. And for the sake of clearness I may say here in passing that so far as Nadir Husain''s 4-annas share in mauza Barwa Kutwa is concerned, the transactions which I have mentioned only show that under the mortgages of the 10th September 1882, the 23rd February 1884, and the 12th August 1885, and the sale-deed of the 20th September 1886, the defendant Hari Prasad alone is concerned both as mortgagee and as vendee and neither of the plaintiffs in these connected suits has any interest in that 4-annas share.

From the transactions which I have just described two suits have arisen, namely, the following:--

(1) A suit instituted by Matadin Kasodhan on the hypothecation deed of the 6th August 1885, and the object of the suit as represented in the prayer contained in the plaint, is that the property covered in that bond should be brought to sale by enforcement of hypothecation lien, and that so far as the sale-deed of the 20th September 1886, can be considered in defeasance of the plaintiff''s title, it should be set aside.

(2) The second suit is one filed by Mata Prasad on his hypothecation bond of the 21st August 1885, of which the terms have already been mentioned by me, seeking recovery of money by sale of the property included in his hypothecation bond by enforcement of lien.

In the Court of the Subordinate Judge which was the Court of first instance, the parties arrayed as defendants in the suit of Matadin Kasodhan, plaintiff, were Kazim Husain, the executant of the hypothecation deed of the 6th August 1885, upon which the suit was based, and also Hari Prasad, the mortgagee of the 10th September 1882, and the 23rd February, 1884, and vendee of the 4-annas share in mauza Barwa Kutwa included in the sale-deed of the 20th, September 1886.

Similarly in the suit by Mata Prasad, the parties impleaded as defendants were the same Kazim Husain and the same Hari Prasad and both these persons were impleaded as defendants for the same reason.

From what I have already stated it will be clear that both those suits were suits of an ordinary character seeking to recover money advanced upon a simple mortgage by sale of the properties covered and hypothecated in the deeds upon which the suits respectively proceeded, that is to say, in the case of Mata Din Kasodhan, plaintiff, the properties mentioned in the hypothecation deed of the 6th August 1885, (S.A. No. 1210 of 1888) and in the case of Mata Prasad (S.A. No. 1213 of 1888) the hypothecation deed of the 21st August 1885.

The suits being thus arrayed and the reliefs prayed for in them being thus similar, Kazim Husain, the mortgagor, did not appear to defend either of them, but naturally Hari Prasad, whose interest in the 4-annas share of Kazim Husain in mauza Barwa Kutwa has already been described by me (with reference to the hypothecation deeds of the 10th September 1882, and the 23rd February 1884, and also the sale-deed of the 20th September 1886), appeared to resist both actions relying upon his mortgages of the 10th September 1882, and the 23rd February 1884, and also on his sale-deed of the 20th September 1886.

The Court of first instance decreed the claim of Matadin Kasodhan, plaintiff so far as the mortgagor Kazim Husain (defendant) was concerned in respect of the hypothecated properties other than the 4 annas share in mauza Barwa Kutwa, but dismissed the suit so far as it sought to bring to sale the share above-mentioned and which had been purchased by the defendant Hari Prasad under the sale-deed of the 20th September 1886.

For similar reasons that Court passed a similar decree in the suit of Mata Prasad, which is the subject of the connected appeal (S.A. No. 1213 of 1888).

From the decrees passed by the Court of the first instance in these two connected suits, the plaintiff Matadin Kasodhan appealed to the lower appellate Court upon grounds similar to those upon which in the connected case the plaintiff Mata Prasad appealed.

Both these appeals were before the learned Judge of the lower appellate Court and he has dealt with them in one and the same judgment, with the result that he upheld the decrees of the Court of first instance and dismissed both the appeals.

From the decrees thus passed both Matadin Kasodhan plaintiff, appellant in the case, and Mata Prasad plaintiff, appellant in the connected case (S.A. No. 1213 of 1888), have appealed to this Court, and these two appeals have been considered together by the Full Bench.

Upon the facts of the case as I have stated them, taken with the pleadings of the parties, and the arguments which have been addressed to us in the Full Bench, the following questions of principle as to the law of mortgage as prevailing in this part of the British India have to be considered:--

(1) What are the legal incidents of a simple mortgage or hypothecation as understood in the law governing this part of the Country?

(2) Does the mere fact of the existence of a prior simple mortgage or hypothecation debar a puisne mortgagee or hypothecate from enforcing his lieu by bringing the property to sale under order of the Court irrespective of the desire or willingness of the prior mortgagee?

(3) When a purchaser of the equity of redemption being himself a first mortgagee takes the purchase in payment of his first mortgage, does such payment defeat the puisne and mesne encumbrance''s rights in the same property or otherwise affect them?

(4) In a suit such as this, has the plaintiff a right to claim a decree for the sale of the hypothecated property without rendering himself liable to pay up the prior incumbrances or to any other qualification as to the prayer contained in his plaint for a decree for sale?

Before dealing with these questions, I wish to observe that I have had the great advantage of perusing the judgment which the learned Chief Justice has prepared in this case, and I may say at once that I entirely agree with him in thinking that the principle of the Full Bench ruling of this Court in Ganga Sahai v. Kishen Sahai I.L.R., 6 All., 262 and of the Full Bench ruling of the Calcutta High Court in Rakhal Chunder Bose Vs. Bhobo Sundari Debi, renders the Transfer of Property Act (IV of 1882) applicable, so far as the question of reliefs and procedure is concerned, to mortgages executed before that Act came into force. In the present case all the transfers were made subsequent to the enforcement of the Transfer of Property Act, but I have made this observation with reference to another appeal which has been argued before the Full Bench and to which the learned Chief Justice has alluded in his judgment. I may also premise here that upon the points above enunciated by me, numerous rulings were cited in the course of the argument. All those cases have been dealt with by the learned Chief Justice in his judgment so exhaustively that it relieves me of the necessity of having to refer to them all in my judgment. I shall therefore refer only to such cases as are required for the purposes of explaining my views upon the questions of law which have to be decided as already enunciated by me.

Dealing with this case in this manner, I think in considering the first question, it is necessary to express my views as to the exact meaning of the word "Property" as it occurs in the preamble of the Transfer of Property Act (IV of 1882) and throughout that enactment. This is a question of interpretation, pure and simple, which must necessarily be guided by the context of the enactment in which the word is employed. I take it as a general rule of interpretation that words when employed in a statute must be understood in their most generic sense unless a restricted meaning is indicated by some provision in the same statute or in any other governing the former statute. The rule is too well known to require any citation of authorities, and I have thus to resort to statute law for the purpose of ascertaining whether or not the word "Property" has been used in its most generic and comprehensive legal sense in the Transfer of Property Act (IV of 1882). Unfortunately that enactment contains no scientific or comprehensive definition of the term; but that enactment must be read subject to the interpretation required by the "General Clauses Act" (I of 1868). In clauses (5) and (6) of section (2) of that enactment, definitions of immovable and movable property have been attempted though in an incomprehensive manner. In the Transfer of Property Act itself in section 3 the phrase immovable property is not fully explained any more than the word "property" itself. But I think that section 6 of that enactment in mating exceptions to the capability of transfer of property most be understood to use the term property in its widest and most generic legal sense, for otherwise the exceptions would be wholly unnecessary. That sense is, I think, well represented in the meaning assigned to the word in Wharton''s Law Lexicon where it is represented to mean: "the highest right a man can have to any thing, being used for that right which one has to lands or tenements, goods or chattels, which does not depend on another''s courtesy. Property is of three sorts: absolute, qualified, I and possessory."

And I may say that, so far as questions of possession are dealt with in the Act, it appears to me that "possession" in those provisions is not to be restricted merely to actual physical possession but should be understood to mean such possession as the nature of the property is susceptible of, for otherwise many classes of transfer, nesting for their validity upon possession, would become invalid, a view consistent with the principle of Palani v. Selambara I.L.R., 9 Mad., 267 and what was said by Prinsep, J., in Dataram Roy Vs. Narain Chunder Chuckerbutty, (at p. 611) as to zamind�ri estates of which the land is in actual possession of tenants.

Therefore such indications as s. 6 of the Transfer of Property Act affords, induce me to hold that the phrase "transfer of property" as it occurs in s. 5 and the phrase "an interest in specific immoveable property" as it occurs in s. 58 of the Transfer of Property Act include what is known to the English Law as the "Equity of redemption" that is to say, such rights and interests as still remain to the owner of the property after he has executed a mortgage of any hind. It is a misfortune that the phrase "Equity of redemption" was ever introduced into the Mufassil Courts of British India, for that phrase is an extremely technical phrase of the English Law of real property, and owes its origin and has reference to the various procedures which at one time drew a hard-and-fast distinction between the procedure of the Courts of Common Law and of the Courts of Chancery in England. The phrase also has reference to the peculiarities of the English system of mortgages, vastly different from the Indian system of mortgages, and I think it has been wisely avoided in the Transfer of Property Act. Now, I will not go to the original text-books of the English Law of mortgages for showing what a mortgage means there, because the definition of an English mortgage as contained in clause (e) of s. 58 of the Transfer of Property Act helps me with a specific definition of what I understand by an English mortgage. The clause runs as follows:--

Where the mortgagor binds himself to repay the mortgage money on a certain date, and transfers the mortgaged property absolutely to the mortgagee but subject to a proviso that he will retransfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.

Now, although this kind of mortgage may resemble, in some respects, the Indian baibilwafa or mortgage by conditional sale as defined in clause (c) of s. 58 of the Transfer of Property Act, one thing is certain, viz., that an Indian mortgage of any hind does not mean the conveyance of "property absolutely to the mortgagee" so that even if the English technical phrases "legal estate" as distinguished from "equitable estate" were to be imported into the Indian Law of mortgages, it must be held that notwithstanding the execution of a mortgage of any kind, the "legal estate" vests not in the mortgagee but remains in the hands of the mortgagor, for, he continues to be the owner of the property, entitled to deal with it as he likes, subject, of course, to the incidents of the mortgage which he has already executed. If any authority is necessary for sustaining this proposition I willingly go back as far as the 30th April 1858, when three Judges of the Calcutta Sudder Diwani Adalat in the case of Saadat Ali Khan, and others v. The Collector of Sarun and others Calcutta S.D.A. 1858-840 (at p. 844) concurred in saying that:--

It is quite clear that, under the Mufassil Law of mortgages, the right of ownership in the mortgaged property does not pass to the mortgagee, leaving only the equity of redemption in the mortgagor; the right of ownership together with the right of redemption remain with the mortgagor, and until the property be actually foreclosed, and the sale become absolute, the right of ownership does not pass. This doctrine holds equally applicable to conditional sales or usufructuary mortgages: it follows, that the mortgages in the present suit, who, whatever the nature of the mortgage, were in possession, were simply usufructuaries, and as such, they enjoy no right of ownership.

I have cited this authority in order to make a marked distinction between the English Law of mortgages and the Indian Law, not only over the question of legal and equitable estates but also over the doctrine of tacking to which I shall have to refer later on.

Leaving that question alone for a while, it is important for me in considering the first question, as enunciated by me, to realize the exact legal incidents of a simple mortgage or hypothecation, as understood in our law. And I am afraid, since this is a Full Bench case, I must repeat what I said in my dissentient judgment in another Full Bench case Gopal Pandey v. Parsotam Das ILR 5 All., 121 (pp. 137-140) where I had to consider the same question, without having the benefit of knowing whether my views as to the nature of a simple mortgage or hypothecation were approved by the majority of the Court. At the risk of prolixity and in order to avoid rewriting the same views in other words I quote the following passages from my judgment in the above mentioned case. There I said referring to simple mortgages:--

Now the word "transfer" has long been recognised to be a technical term of law in all countries where English in the language of the Legislature and of the Courts of Justice. It is often used as a convertible term with "alienation" "conveyance" and "assignment." Whether any distinction exists between the technical meanings of these expressions, and, if so, what that distinction is--it is not necessary exactly to determine. But it may be safely taken that the word "transfer" is used in law in the most generic signification, comprehending all the species of contract which pass real rights in property from one person to another.

In considering the question immediately before us, it seems to me necessary to bear in mind that we are not at present concerned with transfers which take place by judicial process, but with such transfers only as take place between living parties by virtue of their own act. In this signification the term cannot be defined better than by saying that it means an act by which a living person conveys the whole or part of the right of ownership of property in present or future, to one or more other living persons. This being my view, the next question to consider is the exact nature of Indian mortgages in general. Mortgage as understood in this country cannot be defined better than by the definition adopted by the Legislature in s. 58 of the Transfer of property Act (IV of 1882). That definition has not in any way altered the law, but, on the contrary, has only formulated in clear language the notions of mortgage as understood by all the writers of text-books on Indian mortgages. Every word of the definition is borne out by the decisions of the Indian Courts of Justice as fully explained in Macpherson''s celebrated work on Indian mortgages.

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A mortgage, then, is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The transferor is called a mortgagor, the transferee a mortgagee. Now, hypothecation is only a species of mortgage. It has in India been used in the sense of a pledge, and the proper term for it is simple mortgage.

What, then, is the nature of a simple mortgage? I again borrow the definition from the Transfer of Property Act, solely for the sake of convenience, and wholly irrespective of its legislative authority. Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage money, and agrees expressly or impliedly that in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage money, the transaction is called a simple mortgage.

Now, it is quite clear to my mind that the most essential of the elements which constitute the simple mortgage is the right to cause the property to be sold--a right without which the transaction, whatever else it may be, certainly cannot be called a hypothecation, pledge, or simple mortgage. This right does not come into existence when the actual sale takes place by virtue thereof, but it comes into existence at the time when the mortgage is made: it subsists in the property ever afterwards so long as the mortgage money remains unpaid: it limits the interests of the mortgagor as they were at the time of the mortgage. Jurisprudence recognises it as one of the various species of Jura in re aliena, or estates carved out of the full ownership of property. It may happen that the right, though not apparently, but in reality, is tantamount to absolute transfer in its virtual effect. For instance, when land of the value of Rs. 100 is pledged by hypothecation in lieu of a debt amounting to Rs. 101, the mortgagor is simply a nominal owner, and his nuda proprietas is worth less than zero. I am, therefore, of opinion that the rights created by hypothecation in this country amount to nothing more or less than a transfer of an estate amounting to a transfer of immovable property though of course not an absolute transfer. The feature which distinguishes hypothecation from other forms of mortgage consists in the fact that it does not entitle the mortgagee to enjoy the physical qualities of the subject of the mortgage. That this distinction does not alter the nature of the transaction so as to take it out of the category of transfer is clear to me from the manner in which the right is treated by jurisprudence. The reason of the juristic view is well described by a modern writer on jurisprudence. The right of sale is one of the component rights of ownership and may be parted with separately in order thus to add security to a personal obligation. When so parted with, is a right of pledge, which may be defined as a right in rem realizable by sale, given to a creditor by way of accessory security to a right in personam.

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The objects aimed by a pledge are obviously, on the one hand, to give the creditor a security on the value of which he can rely, which he can readily turn into money, and which he can follow even in the hands of third parties; on the other hand to leave the enjoyment of the thing in the meantime to its owner, and to give him every facility for disencumbering it when the debt for which it is security shall have been paid. (Holland p. 152.)

Such being the very nature and essence of the rights created by hypothecation, it follows that if hypothecation is valid and legal, the incidents which flow from it must necessarily be held to be valid and legal too, on the principle that when the law permits a thing, it also permits that which is essential to its accomplishment. The most essential incident of hypothecation is the eventual sale by order of Court--a sale which in the ordinary course of law must be held by public auction, at which ex necessitate rei any person may bid and which must be concluded in favour of the highest bidder. If hypothecation does not carry with it this right of sale at the instance of the mortgagee, and without any restrictions as to the class of bidders or purchasers it cannot be called hypothecation at all. For if any such restrictions are attached to the right of sale, they are essentially repugnant to the very nature of the right conveyed, and must; end in defeating the entire object of the pledge.

These views were expressed by me so long ago as the 13th June, 1882, in the Full Bench case of Gopal Pandey v. Parsotam Das ILR 5 All., 121 and to those views I still adhere so far as they explain the legal incidents of a simple mortgage or hypothecation as understood in the Indian Law. But because these observations were made in a dissentient judgment, it was argued before me in a later case--Kishan Lal v. Ganga Ram--I.L.R. 13 All., 28. (pp. 49 and 50) that this view of the nature of a simple mortgage was disapproved by the majority of the Court in the Full Bench case. In delivering my judgment I took occasion to explain why such was not the case, and that explanation justified me in the later case to abide by what I have all along understood to be the legal incidents of hypothecation or simple mortgage as understood in the Indian Law.

I think I have said enough to indicate what I understand by the term "property" as used in the Transfer of Property Act, also what I understand by "simple mortgage" as described in the same enactment. And if it is necessary to explain my meaning more concretely, I will do so by taking the following illustration, which will also help me in dealing with some of the other points in this case.

Let me suppose that A is the owner of certain property X which is free of all kinds of mortgage incumbrances. A borrows Rs. 90,000 from B and executes a simple mortgage in his favour hypothecating the property X to him as security for repayment of the loan after the lapse of 70 years: the date of the mortgage being 1883.

Upon this state of things the first question is, whether after the execution of the mortgage in favour of B, A continues to be the owner of the property X or not, and whether his rights and interests, subject of course to the mortgage in favour of B, can be called "property" within the meaning of the Transfer of Property Act. Secondly, the question is whether such rights as B derived under his mortgage of 1883 can be called "property" within the meaning of the transfer of Property Act.

I am of opinion that the answer to both those questions must be the affirmative, because the negative answer would necessitate the following results:--

First.--That A, having no longer any property in X, could not execute a second mortgage, for, his power of transfer must be governed by the provisions of ss. 5 and 6 of the Transfer of Property Act, and in those sections the right of transfer refers only to the expression "property" as meaning what I have explained. If that explanation is erroneous, then there is no power in the Transfer of Property Act to enable a mortgagor after having executed a first mortgage to execute a second mortgage or to sell his rights, because ex hypothesi his rights in X after the first mortgage to B cannot be called "property."

Secondly, for similar reasons it would follow a fortiori that the rights of B under his mortgage of 1883 not being "property" within the meaning of ss. 5 and 6 of the Transfer of Property Act, he could not transfer them either by assignment or sale or by executing a sub-mortgage.

A more restricted meaning of the word "property" than I have adopted would, in my humble opinion, necessitate both these results; and I venture to say that I am wholly unaware of any authority in the Indian Law of mortgages as it stood before the Transfer of Property Act (IV of 1882), or as it now stands since the enforcement of that enactment, to justify the view that either second or other subsequent mortgages or sub-mortgages are prohibited by the law. And if I am right so far, it follows that a second mortgage or a sub-mortgage is either legal or illegal. If such transactions are illegal, then a clear answer is obtained. But if it bet accepted that they are legal and valid, as I hold them to be, then it follows that these transactions, falling under the category of the law of contracts, must be governed by the general principles of the Indian Contract Act (IX of 1872), as indeed expressly stated in s. 4 of the Transfer of Property Act itself, which lays down inter alia that "the chapters and sections of this Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872."

There is nothing in either of these enactments to prohibit a mortgagor after his first mortgage to deal with his rights by transfer in any form in which he chooses to alienate them. Nor is there anything in those enactments to render such subsequent transfers unenforceable at the instance of the transferee, that is to say, in the case of a second mortgage, for example, the second mortgagee would have the right to enforce the obligations contained in the covenants of his mortgage deed.

There is, however, one point which, with reference to the covenants against alienation as contained in Hari Parsad, defendant''s three mortgages dated the 10th September 1882, the 23rd February 1884, the 12th August 1885, and Matadin Kasodhan''s mortgage of the 6th August 1885, as also in Mata Prasad''s mortgage of the 25th August, 1885, assumes importance, viz., whether such covenants against alienation absolutely debar the mortgagor from dealing with his rights by way of transfer of the mortgaged property. The plea was actually taken by Hari Prasad in his defence to the action in the 2nd paragraph of his written statement. This question was one of the subjects of consideration by me in Ali Hasan v. Dhirja I.L.R., 4 All., 518, and I expressed my views upon it at pp. 523 and 524 of the report. I ended my observations by saying--

I am therefore of opinion that transfers made in breach of covenants against alienation--covenants so often introduced in mortgage deeds and so often infringed by mortgagors in this country--are valid except in so far as they encroach upon the rights of the prior mortgages, and that, with this reservation, such covenants do not bind the property so as to prevent the acquisition of a valid title by the alienee.

This view of the law is stated by Dr. Rash Behari Ghose in the second edition of his well known work on the Law of Mortgage in India (page 157), and he sums up the case law in the following words:--

It is necessary to observe that at one time the Courts used to give full effect to a condition against alienation (see the cases cited by the reporter in the note to Chunni v. Thakoor Dass I.L.R., 1 All., 126; but it is now settled that a transfer by the mortgagor in breach of a condition against alienation is valid, except in so far as it encroaches upon the right of the mortgagee to realize his security. But, with this reservation, such a condition does not affect the property so as to prevent the acquisition of a valid title by the transferee of the equity of redemption. Covenants against alienation are often introduced in mortgage deeds in this country, and, I may add, are so often infringed by mortgagors. But such a covenant, although it may a create a personal liability between the mortgagor and the mortgagee, does not render an alienation absolutely void, but voidable only in so far as it is in derogation of the rights of the mortgagee. In reality, therefore, a mortgagee does not, by virtue of such a covenant, acquire any higher rights than he would acquire even if the condition was absent, except, perhaps, as regards the necessity of making puisne claimants parties [Radha Prasad Misser v. Monohur Dass I.L.R., 1 All., 126; Chunni v. Thakoor Dass I.L.R., 6 Calc., 317; Ali Hasan v. Dhirja I.L.R., 4 All., 518]. To these cases I may add the ruling of the Madras High Court in (1882) ILR 5 184 and cite the authority of the various cases mentioned at p. 293 in Macpherson''s Mortgages (7th ed.), where the rule laid down is that alienations made by a mortgagor in breach of a covenant against alienation are bad only in so far as they interfere with the rights of those with whom the agreement not to alienate was made. And this rule is stated to be as old as the Full Bench ruling of the Calcutta Sudder Court in Ubhy Charn Sheikhdar v. Jugal Kishore Raee Calc. S.D.A., 1848, 305, which was followed in later cases.

Applying these principles to the facts of the present case, it follows that notwithstanding the mortgages of the 10th September 1882, and the 23rd February 1884, in favor of the defendant Hari Prasad, both of which contained covenants against alienation, the mortgagor Kazim Husain was legally entitled to execute subsequent mortgages, as he did by the deed of the 6th August 1885, in favor of the plaintiff Mata Din Kasodhan, and by the deed of the 21st August 1885, in favor of the plaintiff Mata Prasad. Now, if these two latter deeds were valid contracts, as I hold them to be, they must be enforceable by suit in the Courts of justice. And if they are so enforceable, the right of the mortgagees to bring what was mortgaged to them to sale cannot be denied according to the terms of the contract, it being of course borne in mind that what was mortgaged to them was subject to prior incumbrances as I have already described. Such is the effect of the rule as stated at p. 290 of Macpherson on Mortgages (7th ed.), where the learned author on the authority of numerous rulings says--

And the mortgagor may either transfer absolutely or mortgage his remaining interest in lands which he has already mortgaged without first redeeming them. The purchaser or mortgagee acquires the rights or interests of the mortgagor and stands in his place: he takes the property subject to the lieu of the prior mortgagee, the liabilities of the property not being affected by any subsequent transfer which the mortgagor can make. And no act of the mortgagor, nothing, in fact, but a revenue sale, can injure the mortgagee''s lieu on the land; or on that which represents the land.

It has, however, been contended that the mere existence of prior incumbrances debars these plaintiffs who are puisne mortgagees from enforcing their remedy according to the terms of their mortgage deeds, without the consent of the prior mortgagee as such, or without redeeming the prior incumbrances. It has been argued that this restriction upon the plaintiffs'' right to bring the property mortgaged to them to sale arises out of the doctrine of priority of liens as understood in the Indian Law of mortgages. That such restrictions do not arise out of any terms or covenants contained in the plaintiffs'' mortgage deeds seems to me to be clear, and I will now consider whether the doctrine of priority as understood in our law subjects puisne mortgages to any such restrictions as are sought to be imposed upon them by the argument which I have mentioned.

Now, mortgage being only a form of the transfer of immovable property, the rule formulated in s. 48 of the Transfer of Property Act comprehensively describes the scope of the doctrine of priority, and it applies to mortgages as much as to other kinds of transfers. The section runs as follows:--

Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.

In considering this section the words which I have emphasized are by no means unimportant, for they show that the rule of priority applies only where the rights of the prior transferee clash with the lights of the puisne transferee, and that such right of priority does not give to the prior transferee a free hand to deal with the puisne transferee''s rights in any manner going beyond what is requisite to fulfill and protect the rights of the prior transferee. In other words, where the terms or covenants of a puisne transfer can be enforced without in any manner affecting the rights of the prior transferee, the terms of the puisne transfer must take effect, irrespective of the wishes of the prior transferee, because in such a case the doctrine of priority does not come into play and the maxim "Qui prior est tempore, potior est jure" upon which it is based has no reference. This view of the law is applicable as much to transfers by mortgage as to other forms of transfer of immovable property, and therefore my answer to the second question, as enunciated by me, is that so long as the enforcement of the puisne mortgage cannot in any manner affect injuriously the rights of the prior mortgagee, such prior mortgagee is not entitled to prevent the enforcement of the terms of a valid puisne mortgage, to which he was no party and which cannot defeat or in any manner operate in derogation of his prior mortgage security.

I may explain my meaning by taking an illustration. A, the owner of certain immovable property, hypothecates the same by simple mortgage to B in 1883 as security for payment of Rs. 5,000 payable at the end of 25 years. In 1884 he executes a second simple mortgage of the same property in favor of C in lieu of Rs. 4,000 payable at the end of 15 years; and in 1885 he executes a similar mortgage of the same property in favor of D for Rs. 3,000 payable at the end of 3 years. In this illustration it will be observed that B''s mortgage would fall due in 1908, C''s mortgage in 1899 and D''s mortgage in 1888. All the mortgages remaining unpaid, D comes into the Court seeking to recover his mortgage money by enforcement of his security without waiting for the lapse of the terms of the two prior mortgages and without seeking to redeem them. The question then arises whether he can maintain such, a suit?

Now, s. 67 of the Transfer of Property Act distinctly declares that "in the absence of a contract to the contrary, the mortgagee has, at any time after the mortgage money has become payable to him, and before a decree has been made for the redemption of the mortgaged property, or the mortgage money has been paid or deposited as hereinafter provided, a right to obtain from the Court an order that the mortgagor shall be absolutely debarred of his right to redeem the property, or an order that the property be sold." Clause (a) of that section leaves no doubt that in the case of a simple mortgage the only remedy available to the mortgagee for recovery of his mortgage money is to bring the mortgaged property to sale under a decree of the Court, for he could not sell it himself without the intervention of the Court as explained by me in Kishen Lal v. Ganga Ram I.L.R., 13 All., 28 (at p. 48).

It will be observed that the section, whilst conferring, upon a simple mortgagee the right of bringing the property to sale, does not either limit it to first mortgagees or otherwise qualify such right by saying that a puisne simple mortgagee must either delay the enforcement of his security till the lapse of the terms of prior mortgages or that the redemption of such prior mortgages is a condition precedent to the enforcement of the puisne mortgage. Nor do I think that any such qualifications or restrictions can be imported into the section. For I take it as an established rule of interpretation that when a statute has expressly conferred a right, such right cannot be qualified, restricted or defeated unless such qualification, restriction or defeasance is to be gathered from the provisions of the same statute or of other statutes in pari materia.

And if this is so, it becomes important to examine closely the various sections of the Transfer of Property Act which have been cited in support of the proposition that, in the case of a simple mortgagee whose mortgage is puisne to prior mortgages, the right of sale conferred by section 67 of the Act restricts that right by rendering the redemption of prior mortgages a condition precedent to the exercise of the right.

Now, the first section to which reference may be made is section 74 of the Transfer of Property Act which runs as follows:--

Any second or other subsequent mortgagee may, at any time after the amount due on the prior mortgage has become payable, tender such amount to the next prior mortgagee, and such mortgagee is bound to accept such tender and to give a receipt for such amount; and (subject to the provisions of the law for the time being in force regulating the registration of documents) the subsequent mortgagee shall, on obtaining such receipt, acquire, in respect of the property, all the rights and powers of the mortgagee as such, to whom he has made such tender.

That this section confers a right upon puisne mortgagees to pay off prior mortgages cannot be doubted, nor do I think there can be any doubt that such right is limited to the immediately prior mortgage as indicated by the phrase "the next prior mortgage" used in the section. Further, I may say that the rights thus conferred upon the puisne mortgagees cannot be exercised under the section till after "the amount due on the next prior mortgage has become payable," that is to say, such right cannot be exercised either in respect of a first mortgage where there are intervening mortgages, nor before the lapse of the term of the mortgage immediately prior to the puisne mortgage. But more important than either of these points is the elect of the word "may" as it occurs in the earlier part of the section, where the right to pay off prior mortgages is mentioned. I understand that word to mean an option as distinguished from what might have been the effect of the word "shall," if that word had been there employed, as it usually is where the Legislature intends to make an imperative mandate. The result of this view is that the right of paying off prior mortgages conferred upon puisne mortgagees in s. 74 is an optional right which they may or may not exercise at their choice; and it follows that the provisions of the section cannot operate as a qualification or restriction of the right to bring the mortgaged property to sale conferred upon all simple mortgagees by s. 67 of the Transfer of Property Act.

The next section to be considered is section 75 of the Act which runs as follows:--

Every second or other subsequent mortgagee has, so far as regards redemption, foreclosure and sale of the mortgaged property, the same rights against the prior mortgagee or mortgagees as his mortgagor has against such prior mortgagee or mortgagees, and the same rights against the subsequent mortgagees (if any) as he has against his mortgagor.

Now, in this section I fail to see any qualification or restriction of the right to bring the property to sale which section 67 of the Act confers upon simple mortgagees without limiting that right to first mortgagees. That right of sale belongs as much to puisne and mesne simple mortgagees as to the first simple mortgagee, subject of course to the rule of priority enunciated in section 48 of the Act, the exact scope of which rule I have already discussed. All that section 75 of the Act lays down is well illustrated in Mr. Justice Shephard''s commentary on that section (2nd ed., p. 288), where he says--

Thus when A has mortgaged the property successively to B, C and D; C and D have against B, and D has against C, the same rights as A has under the several mortgages against B, C and D; while C has against D the same rights as he has against A. That is to say, the later can redeem the prior mortgagee; and exercise the right of foreclosure or sale against any mortgagee posterior to him. In the case of a prior versus later mortgagee the former has the right which the mortgagee possesses against the mortgagor, and may consequently sue for foreclosure or sale; since the later mortgagee, having taken as his security the right of redemption, occupies the position of the mortgagor.

In my opinion this illustration correctly explains the entire scope and effect of the section; but that effect falls far short of sustaining the proposition that the payment of a prior incumbrance is a condition precedent to the enforcement of a puisne or mesne simple mortgage or that such puisne or mesne mortgagee is bound to wait for enforcement of his security till the lapse of the term when the prior mortgages become redeemable. It equally falls short of sustaining the proposition that where there are several successive mortgages of the same property any mortgagee whether prior, puisne or mesne is bound before he can enforce his security to seek the liquidation of all the mortgages then subsisting upon the property, regardless of the amounts, nature and the period when such mortgages fall due. In short, I understand the effect of s. 75 to be that each successive mortgagee has the right to enforce his security according to its terms, subject to the rules of priority, and that, in addition, he may redeem prior mortgages if he likes, and if he does not prefer to adopt that course he may proceed with his rights against the puisne incumbrancers, and the mortgagor.

And I may here say in passing that I put a similar interpretation upon the provisions of s. 91 of the Act, so far as they relate to the rights of the puisne mortgagees, to maintain suits for redemption of prior mortgages, with this distinction that whilst the right to pay off a prior mortgage under s. 74 of the Act is limited to the immediately prior mortgagee, the right to sue for redemption under s. 91 is not restricted and applies to the redemption of all prior mortgages, subject, of course, to the covenants in such mortgages as to the time when they would be redeemable. This is apparent from the provisions of s. 60 of the Act. But notwithstanding this distinction two points remain, viz., that the puisne mortgagee cannot, any more than the mortgagor himself, enforce redemption before the time when the mortgage is redeemable and that neither is under the imperative necessity of seeking redemption. Their omission to redeem would of course bring with it its natural legal consequences: in the case of the mortgagor the extinguishment of such rights as may have been left to him in the mortgaged property after the execution of the mortgage security which may be enforced, and in the case of a puisne mortgagee the loss of his security by reason of the enforcement of a prior mortgage which, though falling due, he did not choose to redeem to prevent sale under the prior mortgage.

But whilst this is so, it is one thing to say that if the right of redemption, whether under sections 74 and 75 or u/s 91 of the Transfer of Property Act, is not exercised in due time, the puisne mortgagee may lose his security altogether: it is a totally different thing to say that the redemption of prior mortgages is a condition precedent to the enforcement by the puisne simple mortgagee of the right to bring the mortgaged property to sale in enforcement of his security--a right, which, as I have already said, has been conferred upon him in express and unqualified terms by section 67 of the Transfer of Property Act.

I am therefore unable to regard anything either in sections 74 and 75 or in section 91 as enjoining any qualifications or restrictions Upon the right to sell which section 67 of the Transfer of Property Act declares in favor of all simple mortgagees without any restriction as to whether they are first, mesne or puisne mortgagees.

Where then is the authority in that statute or in any other for holding that a puisne simple mortgagee''s right to bring the property to safe is subject to the condition that he should either wait for the lapse of the term other prior mortgages or that the redemption of such prior mortgages is a condition precedent to the enforcement of his security?

The section of the Transfer of Property Act upon which stress has been laid is s. 85, which runs as follows:--

Subject to the provisions of the Code of Civil Procedure, s. 437, all persons having an interest in the property comprised in a mortgage must be joined as parties to any suit under this chapter relating to such mortgage: Provided that the plaintiff has notice of such interest.

Before stating the exact effect of that section, as I understand it, upon the rights of a puisne simple mortgagee to bring the mortgaged property to sale, or to redeem prior mortgages, I may premise that I regard that section as enunciating no rule of substantive law but only a rule of procedure for suits for foreclosure, sale and redemption instituted under Chapter IV of the Transfer of Property Act. I make this observation at the outset; and before passing on to the consideration of other points I am anxious to explain my views as to the effect of the word "must" as it occurs in s. 85 in the clause saying that: "all persons having an interest in the property comprised in a mortgage must be joined as parties to any suit under this chapter relating to such mortgage."

Now, whatever may be the literal meaning of the word "must" in the English tongue, I have no doubt that, whilst it may be understood as more than merely directory and representing as strong an imperative mandate as the word "shall," when used in statutes, it does not convey the force in legal interpretation which is given to express prohibitions as to the action of the parties to a litigation or of the Courts of Justice. The word itself, however imperative, is affirmative in its effect and meaning, and however imperative such affirmative meaning may be, the statute law when interpreted draws a vast distinction between imperative affirmative mandates and negative words of prohibition. Actions which fall short of full compliance with affirmative rules whether merely directory or imperative are no doubt reprehensible, but they amount to only defects of procedure which can be remedied, whilst acts done in contravention of express legislative prohibition are ultra vires, illegal and without jurisdiction. I have already indicated that no such words of prohibition are to be found in s. 85 of the Transfer of Property Act, and I cannot therefore read that section as if it began by saying: "No suits shall be entertained unless all the parties etc." The section, as it stands, seems to me to be nothing more than a corollary to the principles contained in the various sections of the CPC as to the array of parties to a civil suit, and beyond this I am unable to carry the effect of the rule as indicated by the section itself. That is to say, I Cannot understand the rule as affecting the substantive incidents of valid mortgages except in the sense of mere procedure which must be clearly distinguished from substantive lights. Nor can I take it as justifying the importation of any qualifications of the right of sale which simple mortgagees, whether first, puisne, or mesne, possess under s. 67 of the Act, subject, of course, to the rule of priority as enunciated in s. 48 of the Act.

But it has been contended that the effect of the section goes far beyond my interpretation, that its provisions require that, when a puisne or mesne simple mortgage seeks by suit to enforce his security by bringing the mortgaged property to sale, he is bound, as conditions precedent to the enforcement of his security, firstly, to pay off the prior mortgages, secondly, to wait for the expiry of the period when such prior mortgages become redeemable, and thirdly, to require that all the subsisting mortgages, whether prior or puisne, should be liquidated and brought into account in Court as if the suit was one for administration of an estate or the winding up of a company.

As I understand the argument, it amounts to this, that where a mortgagor has, by several successive mortgages, of the same property, borrowed money at various times and on various conditions, including various terms as to the periods when the mortgages would be redeemable, it is not a matter of choice with any one of the puisne or mesne incumbrancers, but a matter of legal mandate, that he should, in seeking to enforce his own security against such rights as were mortgaged to him, seek to free the property of all prior and subsequent incumbrances and bring to sale the full ownership of the property free of all incumbrances, so as to give a clear title of full ownership to the purchaser who buys the property in the auction sale which would thus take place. And, in support of this view, certain observations to be found in Dr. Whitley Stokes'' introduction to the Transfer of Property Act (The Anglo-Indian Codes, Vol. I, p. 734) were referred to. I have read those observations with all the respect due to an author of such eminence, and all the more so, as it is a matter of the history of legislation in India that the Transfer of Property Act practically owes its existence to the juristic labors of the illustrious author when occupying the high position of Legal Member of the Viceroy''s Legislative Council. But those observations do not go the length of the contention with which I am now dealing.

Under the law as it stood before the passing of the Transfer of Property Act (IV of 1882) much doubt and uncertainty existed as to who were the proper parties to a suit in which a prior, puisne, or mesne mortgagee sought to enforce his simple mortgage by bringing the property to sale. The ordinary course adopted by such a simple mortgagee, at least in this part of the country, was to sue only the mortgagor and to pray for enforcement of his security against the mortgaged rights, ignoring the existence of puisne incumbrancers and other persons interested in the property. Such suits resulted in decrees, where the plaintiff''s mortgage was proved, in his favor resulting in sales, without giving those interested in saving the property any opportunity of paying off the plaintiff''s mortgage and securing their rights from sale. I dealt with this matter in delivering my judgment in Sita Ram Vs. Amir Begam and Others, where I said:--

The law, as it stood before the Transfer of Property Act, as to the necessity in a suit by a first mortgagee of making a subsequent mortgagee a party was explained by me in Ali Hasan v. Dhirja I.L.R., 4. All., 518 following the ruling of Turner, J., in Kalian Das Vs. Khub Chand, It was there held that it was not absolutely necessary to make puisne encumbrancers parties to a suit by a first mortgagee, and that a sale in enforcement of the prior mortgage would defeat the rights of the puisne incumbrancer, who is presumed in jurisprudence to take with knowledge of the prior mortgage, or at least cannot take more than his mortgagor had to give. The puisne incumbrancer could, of course, escape the decree by proving fraud or collusion, or he might prevent the sale in enforcement of the prior incumbrance by redeeming it. But if neither condition is satisfied, sale in enforcement of the prior incumbrance would defeat the puisne incumbrance. Since the passing of the Transfer of Property Act (IV of 1882) it seems, under certain conditions, necessary, according to s. 85 of the Act, to make puisne encumbrancers parties, with the result that if they do not redeem, their lieu will be defeated in the absence of fraud, which might disturb the rule of priority under conditions such as those contemplated by s. 78 of the Transfer of Property Act (IV of 1882)." This matter was more fully considered by me in Bhoop Singh v. Goolab Rai Weekly Notes, 1886 p. 269 (at p. 271) where I made the following observations which have not been published in the official reports and they are these:--

Such being the effect of the rulings of the other High Courts it is important to consider how this Court has dealt with the same question in regard to suits brought to enforce the mortgage lieu by sale of the mortgaged property, such as the plaintiff''s former suit of the 24th April 1882, was, and to which only Bhajwant as the heir of Dalganjan Singh (the executant of the mortgage of the 28th April 1870), and Jagraj as the purchaser of the property under his own decree of the 14th August 1873, were impleaded. In the Full Bench case of Khub Chand v. Kalian Das I.L.R., 1 All., 240, it was laid down by Turner, J., that when a suit is brought to enforce the lieu under the mortgage, though it is not absolutely necessary for the plaintiff to make subsequent encumbrancers parties to the suit, and though if subsequent encumbrancers are not made parties to the suit, they are not bound by the decree which the plaintiff may obtain and may at any time before sale come in and redeem, yet if they do not redeem, and a sale takes place, their liens will be defeated, unless they can show something more than the existence of their subsequent incumbrances, some fraud or collusion which entitled them to defeat the first incumbrance, or to have it postponed to their own. The principle of the rule was followed by me in Ali Hasan v. Dhirja I.L.R., 4. All., 518; and again in a very recent case--Seeta Ram v. Wilaiti Begam Weekly Notes, 1886, p. 101 in respect of a sale which had already taken place in execution of a decree enforcing hypothecation liens. Such has undoubtedly been the course of decision in this Court, and is in accord with the principle upon which the ruling of the Calcutta High Court in Mathura Nath Pal v. Chander Money Dabya I.L.R., 4. Calc., 817 proceeded, and is in special conformity with the dictum of West, J., in ILR 1878 2 662 (Bom.) where that eminent Judge observed that ''It was not incumbent on the registered mortgagee, desiring to enforce his lien, to search for subsequent encumbrancers or purchasers. It lay on them to inform him of the assignment of the equity of redemption or of the interest they had acquired. Registration of a subsequent sale did not supply the place of such notice, as the mortgagee, though he would properly look for prior encumbrancers , could not be expected to keep up a constant search for those subsequent to his own, and in the absence of notice, would properly proceed against the person prim� facie liable to him. And if his proceeding was right, the title acquired under it was complete so as to displace the defendant''s title.'' Both these cases were referred to, and dissented from by the Madras High Court in (1882) ILR 5 184 to which I have already referred; and I confess that, in view of this conflict of authority, I have, in considering this case, had much doubt as to whether I could still adhere to the dictum of Turner, J., in Khub Chand v. Kalian Das I.L.R., 1 All., 240 which I followed with the concurrence of my brother Judges on more than one occasion, in the cases which I have already mentioned. But I do not think it is necessary for me to decide this question, because, whatever the rule of law may have been before the passing of the Transfer of Property Act (IV of 1882), the matter which has given rise to so much conflict of decision has now been settled by the Legislature in s. 85 of that enactment, where it is laid down that ''all persons having an interest in the property comprised in a mortgage, must be joined as parties to any suit under this chapter relating to stick mortgage: provided that the plaintiff has notice of such interest.'' The Act must now be taken to have approved of those rulings which require that all persons having an interest in the mortgaged property, must be joined in a suit, such as the former suit of Gulab Rai, instituted by him on the 24th April 1882, and although that suit was instituted before the Transfer of Property Act came into force, I am prepared to follow the rulings which s. 85 of the Act has approved, even though such a view may involve modification of the opinions which I adopted in the two cases already mentioned.

Such, then, was the law as to the array of parties in suits for enforcement of simple mortgage securities and gave rise to multiplicity of suits as to the rights claimed and enforced under one and the same mortgage, and as to the title which the auction purchaser in sales held in enforcement of such mortgage acquired as against other encumbrancers and other persons interested in the property sold. The legislature has removed this evil, and the law has now been placed upon a sounder footing by s. 85 of the Transfer of Property Act as, to the array of parties in suits such as the present. The effect of that law so far as the impleading of puisne encumbrancers is concerned is the subject of a very recent ruling of my brother Straight in Namdar Chaudhri v. Karam Raji I.L.R., 13 All., 315 where he, with the concurrence of my brother Tyrrell, laid down the rule that "if a prior incumbrancer having notice of a puisne incumbrance, does not, when he puts his mortgage in suit, join the puisne incumbrancer as a party, that puisne incumbrancer is in no way affected or prejudiced by the decree in the rights which the Transfer of Property Act gives him to redeem the prior incumbrancer. If he has been left out of that litigation, the puisne incumbrancer must be placed in the same position he would have held had he been a party to that litigation."

In this view of the law I concur. But it does not go the length of holding that, where a suit has been improperly or defectively instituted in respect of the array of parties required by s. 85 of the Transfer of Property Act, such suit is to be defeated merely because of such defect, or that when such a suit has actually gone to trial and resulted in a decree, such decree is null and void as ultra vires. Much less does the ruling lay down any rule which could be understood to necessitate that when a suit is instituted by a mesne or puisne mortgagee for enforcement of his security by sale, and the prior mortgagee or mortgagees or other persons interested in the property are left out of the array of parties, the suit must fail.

I may now say, before proceeding any further, that I concede that s. 85 of the Transfer of Property Act requires, that to a suit by a mesne or puisne incumbrancer, both the prior and subsequent mortgagees must be made parties, so as to have an opportunity of contesting the genuineness, validity or extent of the plaintiff''s rights under the particular mortgage which he seeks to enforce, and also to assert and vindicate such rights as they may have as between the plaintiff on the one hand, and themselves on the other. The section would in such cases require the plaintiff to implead as defendants (1) the mortgagor, (2) the prior mortgagees, (3) the mortgagees puisne to his incumbrance, and (4) other persons interested in the property which the plaintiff seeks to bring to sale by enforcement of his security. The effect of an adjudication in a suit thus arrayed would be that if the plaintiff succeeded in obtaining a decree for enforcement of his security, such decree would define his rights and be binding upon all parties defendants, and when a sale takes place in enforcement of the decree such sale would convey to the auction purchaser a title unhampered by any possibility of being subsequently questioned by any one of the parties to the litigation. This is obviously a great benefit conferred by the section, but I do not think it aims at anything more.

It has been, however, argued that the section goes much further, for there would he no object in requiring such an array of parties unless the Legislature intended that when any mortgage is put in suit all other mortgages should be taken into account and liquidated so as to free the property from all incumbrances and render the sale in enforcement of any security free of all (sic) so as to pass a clear title of fall unencumbered ownership to the purchaser.

I will deal with this argument in two aspects. I will show in the first place that the array of parties required by the section has substantial benefits in presenting subsequent litigation, without subjecting the mesne or puisne incumbrancer to the necessity of paying off prior mortgages of bringing into account all incumbrances as a condition precedent to the enforcement of his security. In the second place, I will show that our rules of procedure contain no Provision for determination of disputes as to priority or otherwise which may arise inter se between several mortgagees who, under s. 85, must necessarily be impleaded on one and the same side as parties defendants. For under the CPC no two mortgagees seeking to enforce separate mortgages could join as plaintiffs in one and the same suit (s. 31), nor can any one be added as a plaintiff against his will (s. 32) though he may be added as a defendant so long as any relief is claimed against him, "and judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment."

Dealing, then, with the first aspect: in a suit by a mesne mortgagee for enforcement of his security, the parties being arrayed as abovementioned, under s. 85 of the Transfer of Property Act, the mortgagor, who has to defend his rights of ownership in the property, will have the chance of contesting whether the security which the plaintiff seeks to enforce is genuine and valid, whether the amount claimed thereon is correct or has been reduced by subsequent payments. Similarly, the encumbrancers puisne to the plaintiff could raise any pleas to the same effect (for such right is given to them by s. 75 of the Transfer of Property Act) and they would further in common with the mortgagor (under s. 88 read with s. 86) be allowed an opportunity of redeeming the plaintiff''s mortgage to prevent the property from being brought to sale in enforcement of the plaintiffs security--thus obviating the evils of a fresh litigation as pointed out by my brother Straight in Namdar Chaudhri v. Karam Raji I.L.R., 13 All. 315. Now, this is obviously a great improvement upon the law as it stood before s. 85 of the Transfer of Property Act, and it will be readily observed that neither the terms of that section nor the exigencies of the advantage thus derived therefrom require that puisne encumbrancers to whom the right and opportunity of redemption is thus given should bring their mortgages into account, before the mesne incumbrancer, who is prior to them, can enforce his security. I can imagine and know many cases in which such puisne encumbrancers are either debarred by the terms of their mortgages from seeking recovery of the money due thereon, or are unwilling to forego the security which they already possess and which they wish to keep, preferring to pay off the prior mortgage to closing the benefit of their investment, and I am unable to understand anything in the section which would force them to do so at the will of the prior incumbrancer, or that of mortgagees puisne to them.

The advantages of impleading prior mortgagees, as required by the section, are equally great. In a suit by a puisne mortgagee it may be that he denies the validity or genuineness of the prior mortgage, or by ignoring its existence assumes that such a mortgage has already been paid off and is no longer subsisting. It may also be that whilst admitting the prior mortgage he contests the amount remaining due thereupon as a charge upon the mortgage property which would take precedence; of the plaintiff''s security by reason of the rule of priority as enunciated in s. 48 of the Transfer of Property Act. And, indeed it may also be, as I have known in numerous cases, that the mesne or puisne incumbrancer contends that although his security is puisne in point of time to that of the prior mortgage, yet the security possessed by such prior mortgagee must be postponed to the plaintiffs, security, because the latter advanced money in consequence of the fraud and collusion of the prior mortgagee. By saying this, I mean that in mortgage suits by mesne or puisne encumbrancers in India it is not an uncommon plea, based, as it is, upon the doctrine explained in s. 78 of the Transfer of Property Act, which lays down that "where, through the fraud, misrepresentation or gross neglect of a prior mortgagee another person has been induced to advance money on the security of the mortgaged property, the prior mortgagee shall be postponed to the subsequent mortgagee." On the other hand, there are cases in which a prior mortgagee, after the property has been mortgaged to a second mortgagee, makes further advances upon the same property and pleads that he made such advances by reason of the fraud and misrepresentation of the puisne incumbrancer in collusion with the mortgagor, and upon that ground claims priority, not only in respect of sums advanced upon the prior mortgage but also in respect of such advances as were made upon a mortgage subsequent in point of time to the security which the plaintiff, the puisne or mesne mortgagee, seeks to enforce. Further, there are cases of which this very case affords an illustration, viz., cases, in which the prior incumbrancer dealing direct with the mortgagor and behind the back of the mesne and puisne encumbrancers , purchases such rights of ownership as were left to the mortgagor after the execution of the various mortgages.

The preclusion of points such as these being raised by the prior mortgagee in any litigation which might ensue after the mesne or puisne incumbrancer has already obtained his decree, and that decree has resulted in a sale at which a third party has purchased is one of the important objects which s. 85 of the Transfer of Property Act aims at by requiring that the prior mortgagee should also be impleaded in such a cause. His being so impleaded would also give him an opportunity of expressing his consent in suits by puisne encumbrancers to the effect that the sale in enforcement of the puisne incumbrance may take place free from his prior incumbrance under conditions provided by s. 96 of the Transfer of Property Act, which appears to me distinctly to contemplate sales in enforcement of puisne mortgages subject to prior incumbrances. A prior mortgagee who had no such defences to raise would naturally not appear to contest the suit of the mesne or puisne incumbrancer, for unless such suit assails the genuineness, validity or amount due upon the prior mortgage, he has no reason to defend the suit, for whatever decree may be passed upon a mesne or puisne encumbrancer''s suit as to the sale of the property, such sale could not affect the interests of the prior mortgagee.

These considerations seem to me to furnish ample explanation of the expediency which induced the Legislature to make the provisions contained in s. 85 of the Transfer of Property Act as a rule of procedure guiding the array of parties in such mortgage suits. But there is nothing in that section, as I understand it, to render it necessary that at the choice and at the suit of any one of several mortgagees of the same property, all the mortgages are to be called into account, the prior mortgages are to be paid off, the puisne mortgages are also to be liquidated, and the suit is to be proceeded with, much in the same manner as a suit for the administration of an estate or the winding up of a company.

This leads me to the consideration of the second aspect of this discussion, viz., whether either the Transfer of Property Act or the CPC furnishes any rules as to the adjudication of disputes in mortgage suits in the manner which must necessarily be required by an argument which maintains that as a condition precedent to the enforcement of a mesne or puisne incumbrance all the subsisting mortgages must be brought into account and liquidated before a sale can take place to satisfy the mesne or puisne incumbrancer who seeks to enforce his security when it falls due without waiting for the terms upon which other encumbrancers , whether prior or puisne to him, advanced money to the mortgagor and the periods when such mortgages would become redeemable. Even assuming, for the sake of argument, that a mesne mortgagee is bound to pay off prior mortgages, the question remains how he is to force two or more encumbrancers , puisne to his mortgage, to redeem each other or to enforce their respective securities against each other in a suit not instituted by any one of them and in which they are all arrayed on one and the same side as defendants.

It is equally difficult to conceive how is such a suit decrees for redemption or sale could be made as between co-defendants inter se, or, if such decretal orders are inserted in the decree granted to the plaintiff, how such decretal orders are to be enforced by one co-defendant against another who, so far as the plaintiff is concerned, are his judgment-debtors, and as such, liable to the execution of his decree, subject of course to such conditions as have been imposed upon the right decreed to him. And it is needless to say that such conditions can never be such as to leave the decree-holder at the mercy of any or all of the judgment-debtors as to the enforcement of the right decreed. In my opinion this view is not opposed to any principle laid down by the Lords of the Privy Council in (1890) ILR 18 164 (Privy Council) which deals with the especial pleadings and facts of that particular case, and does not seem to proceed upon any special provision of the Transfer of Property Act.

Perhaps the best way to deal with this point is to take an illustration and conceive the kind of pleas which may possibly be raised in such a suit, with reference to the hypothesis upon which the argument I am now considering proceeds. The illustration which I take is the following:--

A, the owner of certain immovable property, hypothecates it, that is, executes simple mortgages first in favor of B, then successively in favor of C, D, E, F, G and H. That these successive mortgages are all valid cannot be denied, unless it is held (which as I have already stated cannot be held) that after the execution of one mortgage the mortgagor can no longer deal with his rights of ownership in the mortgaged property by executing a second or other subsequent mortgage. This being so, let me conceive that C, the second mortgagee, seeks to enforce his security by bringing the mortgaged property to sale, that is to say, such rights and interests as were mortgaged to him by A subject to the prior incumbrance of B.

Now in such a suit the provisions of s. 85 of the Transfer of Property Act would require that the array of parties should be the following:--

Now, in dealing with a suit such as this, the respective rights of various mortgagees as declared in s. 75 of the Transfer of Property Act must be kept in view, also the provisions of s. 85 of that Act as to the array of parties; and upon the hypothesis of the argument, which I regard as unsound, I will conceive defences which may be raised in such a suit rendering it impossible to be decided under any rules of procedure recognised by our Code (Act XIV of 1882), notwithstanding its amendments. Let me then conceive the following defences:--

(1) A, the mortgagor, either denies that he ever executed the mortgage in favor of C, or pleads that the mortgage has been partly or wholly paid off.

(2) B, the first mortgagee, pleads that the mortgage in favor of C, was illegal and invalid, because in his deed there was a covenant against subsequent alienation by A, the mortgagor, and A the mortgagor had therefore no authority to execute the second mortgage in favor of C, the plaintiff, whilst A, mortgagor, defendant No. 1, denies that he ever executed a mortgage in favor of B, defendant No. 2, or that that mortgage should in any manner be taken into account.

(3) D, the 3rd mortgagee, defendant No. 3, pleads that not only the mortgage in favor of C, the plaintiff, but also the mortgage in favor of B, the first mortgagee, defendant No. 1, were fraudulent and collusive and without consideration, that therefore he is not to be regarded as the 3rd mortgagee but as the first mortgagee, thus entitled to defeat not only the claim of the plaintiff C, but also to defeat the pretensions of B, who claims to be the first incumbrancer of the property.

(4) The defence of E is that though the mortgage executed by A, the mortgagor defendant No. 1, in favor of the plaintiff C was valid, the mortgage in favor of B, defendant No. 2, who claims to be the mortgagee, was never executed, is not genuine and no money therefore is due upon it, and that his (E''s) fourth mortgage was therefore free of any incumbrance such as B, defendant No. 2, asserts.

(5) The plea of F is that all the mortgages executed by A, the mortgagor, in favor of B, defendant No. 1, C the plaintiff, D the third mortgagee, defendant No. 3, E the fourth mortgagee, defendant No. 4, were genuine and valid, but that all these persons through fraud, misrepresentation or gross neglect induced him (F) to advance money on the security of the mortgaged property, and they should therefore be postponed to his (F''s) mortgage security for purposes of satisfying his demand under the rule contained in s. 78 of the Transfer of Property Act.

(6) The plea of G, the sixth mortgagee, defendant No. 6 is that the mortgage in favor of the plaintiff C is genuine and valid but that the mortgages in favor of B, defendant No. 2, D, defendant No. 3, E, defendant No. 4, and F, defendant No. 5, were not valid and no consideration passed upon them, and therefore his (G''s) rights are not subject to any of the incumbrances claimed by the abovementioned defendants Nos. 2, 3, 4 and 5.

(7) The plea of H, defendant No. 7, is that, although the plaintiff''s mortgage is genuine and valid, yet he cannot enforce his security otherwise than subject to his (H''s) mortgage, because in taking the mortgage C, the plaintiff, joined with B, D, E, F and G, in inducing him (H) to believe that the property was free of all incumbrance and it was upon such guarantee that he (H) advanced the money.

Such may be the pleas in a suit such as the one which I have conceived as an illustration. I do not wish to complicate the illustration further by saying that, if the pleas of these various defendants also raised questions as to the amount due and paid upon each successive mortgage, the rights of each mortgagee, who being defendant in the cause seeks priority over another, would require a separate issue for determination, which issue, according to the hypothesis with which I am now dealing, could not arise as between the plaintiff on the one hand and the defendant on the other, but would arise between one or more defendants inter se.

Similarly, there may be pleas other than those that I have conceived in the illustration, in which the defendants quarrel inter se as to the rights which each possesses under his mortgage, and, by the mathematical rule of permutations and combinations a suit of this character might give rise to many more issues as between defendants inter se as to their respective rights not only as to priorities and amounts of their lien, but also as to their rights to enforce the redemption of prior mortgages, and also as to enforcement of securities against the puisne encumbrancers.

It would almost be a waste of time to illustrate how such other issues might arise between mortgagees who are all co-defendants and between whom issues arise such as those which I have already indicated. That such issues which are disputes between co-mortgagees inter se do not concern the plaintiff C so long as he enforces his security according to the covenants contained therein and subject, of course, to the priorities which may be asserted against him, is obvious; for all that he wants is to enforce a valid contract for recovery of his money by bringing to sale the rights and interests which were mortgaged to him by the mortgagor A, of course subject to such incumbrances as may be proved against him.

So long as the plaintiff''s rights are resisted by any one of the defendants, who, in a suit such as I have contemplated in the illustration, should be arrayed in point of parties, (as s. 85 of the Transfer of Property Act requires) the issue would be one between the plaintiff on the one hand and the defendant or defendants on the other. But the moment issues are raised between the defendants inter se, as to priorities of mortgages, as to fraud or collusion, as to the amounts due upon each mortgage, such issues, if they can be so called, are issues for dealing with which the rules as contained in our CPC are inadequate for purposes of adjudication. Points in dispute between defendants cannot properly be called "issues" within the meaning of s. 146 of the Code; nor do the rules of evidence as understood in our law, entitle co-defendants inter se to cross-examine each other''s witnesses, for the right is limited to parties arrayed on opposite sides of a litigation (vide s. 137 and s. 138 of the Evidence Act) and if this is so, it is difficult to see how any issues, which arise between two or more mortgagees as to their conflicting claims in a suit in which all of them are arrayed as defendants, can be brought to trial. If they could be brought to trial, it follows that they could be compromised between the contending co-defendants without the consent of the plaintiff.

It would be nothing other than an unnecessary expenditure of time to explain that in our own CPC in common with other systems of adjective law which go to the remedy ad litis ordinationem, it is only in very few exceptional cases, that, a lis, by which word I understand a dispute, is to be adjudicated upon in any manner other than by disposing of it as a dispute between two and only two parties. In other words, a triangular litigation is unknown to our CPC except where a special provision is made.

If this is so, where is the authority to justify the view, that a suit such as I have contemplated in the illustration can ever be adjudicated upon, as one and the same suit, in one and the same litigation which the interests, and pleas of the co-defendants are opposed to such other inter se, as distinguished from pleas raised by them jointly severally against the remedy which the plaintiff C seeks to enforce upon his mortgage security? Further, where is the authority in our British Indian Law that, even if such an adjudication could be made upon disputes between defendants inter se, such an adjudication would be binding upon them either within the rule of res judicata as enunciated in s. 13 of the Code of Civil Procedure, or, within the meaning of s. 40 or 41 of the Indian Evidence Act (I of 1872)? One thing is certain, that so far as the efficacy of judgments or adjudications is concerned as binding upon the parties within the meaning of the rule of res judicata as understood not only in the English Law but also in the British Indian Law, it is necessary that the parties who are so held bound must be arrayed on opposite sides in a suit or proceeding framed between those parties. It is equally certain, that where such is not the case, the rule does not apply, and the adjudications are not binding in the sense of preventing the reagitating of the same points in a subsequent litigation. That is to say, in the illustration conceived and the pleas therein represented, as arising between mortgagees inter se, who are co-defendants asserting rights of priority over each other, charges of fraud and collusion against each other, each asserting that the amount claimed by one co-mortgagee is more than is due to him, all these disputants being arrayed on one and the same side in the suit of C, as defendants, no adjudication upon such disputes can ever pass in rem judicatam. For reasons for this view I need only refer to my judgment in the imperfectly reported case of Sital Prasad v. Bansidhar Weekly Notes, 1882, p. 168 which had the concurrence of the late Mr. Justice Brodhurst.

And if that ruling is right, what is the use of making such adjudications between co-defendants as are not binding upon them? The only result would be to delay the remedies to which the plaintiff C, in my illustration would be entitled, without any binding adjudication upon the disputes between the defendants, the other mortgagees, inter se.

The Legislature, no doubt, might have provided remedies for such necessary results of procedure, if it so intended, by special legislation. But it is clear to my mind that it would be inexpedient to do so, and that in framing s. 85 of the Transfer of property Act the Legislature did not intend either to disturb the well recognised principles of the rule of res judicata, or to render suits for enforcement of a simple mortgage, suits in which not only the mortgage sought to be enforced is to be brought into question by those who are parties defendants to the cause, but also all other mortgages are to brought into account for purposes of liquidation, and disputes arising among the defendants mortgagees inter se are also to be adjudicated upon.

If such had been the intention of the Legislature (an intention which juristic reason would render extremely inexpedient) s. 85 of the Transfer of Property Act would not be the only section in that enactment. For I should have expected a larger number of sections making exceptions to the rule of res judicata, and a larger number of sections providing the procedure whereby a triangular dispute is to be adjudicated upon in a case in which a mortgagee, suing to enforce only his security by bringing the mortgaged property to sale, is met by pleas which, so far as his right is concerned, may of course be dealt with as between him and the defendants, but which, so far as they raise disputes between co-defendants mortgagees inter se, cannot be disposed of in a binding adjudication between them, and which pleas, so far as the plaintiff is concerned, do not interest him at all; for priorities of lieu or other disputes as to amount or otherwise between the defendants mortgagees cannot affect him so long as his security is enforced.

I have dwelt upon this aspect of the case at such length because it shows that s. 85 of the Transfer of Property Act must be read exactly as it stands, and that no notions outside that section are to be imported into it for any view which justifies the argument with which I am dealing, and also to indicate the view that questions of mere procedure which form part of adjective law ad litis ordinationem must not be confounded with the rules of substantive law ad litis decisionem. I have also dwelt upon this matter in order to show that if the distinctions which are pointed out are not kept in view, the rules contained in our CPC (Act XIV of 1882), which is a consolidatory enactment, as shown in the preamble, are as powerless as any rules of procedure contained in the Transfer of Property Act (IV of 1882) to enable adjudication of disputes between co-defendants, where issues are raised between them in a suit by the plaintiff C, the second mortgagee, in the suit which I have taken as an illustration.

It is, therefore, in my opinion certain that, whilst the provisions of s. 85 of the Transfer of Property Act require that all persona interested in the mortgaged property should be made parties to any litigation in respect of any mortgage sought to be enforced, the entire scope of that section is limited to the object that the genuineness, validity and enforceability of the particular mortgage sued upon should not be called into question in a subsequent litigation; for the simple reason that all those parties would be parties defendants to the very suit in which, in the case of a simple mortgage, the plaintiff C, as in my illustration, would be seeking to enforce his security by sale, and any pleas raised against the remedy which he claims would in that very suit be decided once and for all as between him and the defendants, so as to convey to the purchaser who purchases in an auction sale in enforcement of the plaintiff''s security a title unhampered by any objections which could be raised by any one of the parties to the suit.

To carry the effect of the section any further, is to legislate probably upon grounds which are neither contemplated by the Legislature nor amenable to any such practical effect as our rules of Civil Procedure recognise. In cases where there is a large number of mortgagees holding securities upon one and the same property under various terms as to the conditions of the mortgages, including the periods when such mortgages would become redeemable, it would be leaving all the mortgagees to the mercy of any one of such mortgagees if it were to be held that the effect of s. 85 of the Transfer of Property Act is that at the suit and choice of any one of the puisne or mesne mortgagees the property to be brought to sale must be cleared of all incumbrances so as to give a title to the purchaser at such sale free of all incumbrances.

I think I have said enough to show that in the present case s. 85 of the Transfer of Property Act required that the plaintiff Mata Din Kasodhan, in seeking to enforce his security under the simple mortgage of the 6th August 1885, should also have impleaded the puisne mortgagee Mata Prasad, whose simple mortgage-deed is dated the 21st August 1885, in order to enable him to exercise the right of redemption conferred upon him by s. 75 of the Transfer of Property Act to save the property from sale in enforcement of the plaintiff''s security. Mata Prasad, however, was not impleaded in the suit as defendant in the cause, and this undoubtedly was a defect in the array of parties in such a suit if the plaintiff Mata Din Kasodhan had notice of Mata Prasad''s puisne incumbrance within the meaning of s. 85 of the Transfer of Property Act. There is, however, no allegation in the defence to the effect that the plaintiff Mata Din Kasodhan had any such notice, and naturally there is no trace of any plea in defence objecting to the suit upon the ground of want or defect of parties. Not only was such a plea not raised in the Court of first instance, but was not raised in the lower appellate Court. If it had been so raised, it could easily have been remedied by the addition of the name of Mata Prasad (the plaintiff in the connected suit) under s. 32 of the CPC as a defendant to the suit, and the defect would have been remedied. It was, however, not so remedied, and the suit went to trial resulting in a partial decree of the claim, which decree has been upheld by the lower appellate Court. Under these conditions, the question is whether the suit should be absolutely defeated?

This question is simply a question of procedure and practice, and I think I am within the authorities not only of the Courts of Justice in India but also of the practice of the Courts in England in saying, that such objections if not taken at the earliest stage in the Court of first instance and are foregone there, cannot be taken for the first time in a Court of appeal, much less in a Court of second appeal such as this Court. This indeed is the effect of s. 34 of the CPC (Act XIV of 1882), which if for no reason other than the fact that it is a later statute should govern s. 85 of the Transfer of Property Act (IV of 1882), both sections being in pari materia. And if this is so, the defect of parties caused by the absence of Mata Prasad will not defeat the action altogether. Indeed, so far as Mata Prasad himself is concerned, he can have no reason to complain, for, according to the ruling of my brethren Straight and Tyrrell in Namdar Chaudhri v. Karam Raji ILR 13 All. 315 his right of redemption, &c., cannot be affected by the decree in the suit, and further, considering that his connected suit was tried by both the lower Courts along with the suit of the plaintiff Mata Din Kasodhan, he (Mata Prasad) had ample opportunity of applying under s. 32 of the CPC to be added as a defendant to this suit, of which opportunity he never took advantage. Under these circumstances I do not think either that the defendant Hari Prasad, who never took the plea in the Court of first instance, nor in the lower appellate Court, should at this stage be allowed to raise the plea for the first time, not so much on his own behalf as on behalf on his antagonist, Mata Prasad, plaintiff in the connected suit. I would therefore reject the plea and deal with the suit with reference to the rights of the parties as they already have been arrayed as parties to the suit.

This leads me to the consideration of the third and perhaps the most important point in the case, namely, the legal effect of the purchase from Kazim Husain and Nadir Husain made by the defendant Hari Prasad under the sale deed of the 20th September 1886. That such a sale and purchase cannot mean the enforcement of the defendant Hari Prasad''s securities is obvious; because, as I explained in the case of Kishan Lal v. Ganga Ram ILR 13 All. 28 (v. p. 43), a simple mortgagee could not without intervention of the Court bring the property to sale by his own private act, and it follows fortiori that he could not by privately purchasing the property himself achieve the same results. His purchase therefore is nothing other than a purchase which, though valid so far as the mortgagor is concerned, can have no effect in defeating the right of the mesne or puisne encumbrancers . The question then is, whether such purchase extinguished such rights as he had under his mortgages of the 10th September 1882, and the 23rd February 1884, which were prior to the plaintiff Mata Din Kasodhan''s mortgage of the 6th August 1885, which he seeks to enforce in this suit, and if such purchase did not so extinguish those mortgages, to what extent may they be used as a shield or protection for the defendant Hari Prasad in resisting the plaintiff Mata Din Kasodhan''s suit?

This question is by no means res integra, so far as I am concerned, because it had to be considered by me on a former occasion in Raghunath Prasad Vs. Sirbadh Rai and Others, and again in Sri Matra Mautangui Debia Vs. Janki Prasad, In both those cases I had the honor of being associated with Mr. Justice Oldfield, and in both of those cases I had the misfortune of not being able to agree with my hon''ble colleague as to the exact scope and extent of the rule enunciated by the Lords of the Privy Council in (1884) L.R. 11 I.A. 126 (Privy Council) Gokaldoss Gopaldoss v. Rambux Seochand, which is the leading case upon the subject, and the authority of which cannot be questioned by this. Court. The former of these cases was the subject of an appeal to the whole Court under s. 10 of the Letters Patent and is reported as Raghunath Prasad Vs. Jurawan Rai and Another, where, as I understand the Full Bench ruling, my dissentient judgment was upheld and the decree framed was in accordance with what I had suggested in my judgment in the Division Bench. But in consequence of the brevity of the judgments in that case, it has been contended before the Full Bench in this case that the ratio decidendi upon which my judgment proceeded in the case of Raghunath Prasad Vs. Sirbadh Rai and Others, was not approved by the Full Court, and that it is therefore still res integra so far as the Full Bench of this Court is concerned. As to this contention, all I need say is that no other ratio decidendi is suggested by the Full Bench ruling ( I.L.R., 8, All., 105) in the case, and that the judgment of my brother Straight suggests no doubt in my mind that he adopted the ratio decidendi and its conclusions which I had expressed in dissenting from Mr. Justice Oldfield in the case when it was before the Division Bench (I.L.R., 7., All. 568, vide pp. 573-76). The contention however raises doubts which, I understand, are shared on the Bench, and I therefore feel called upon to repeat what I said in that case, as part of my ratio decidendi in this case.

Referring to the ruling of the Lords of the Privy Council in (1884) L.R. 11 I.A. 126 (Privy Council) and explaining it (vide pp. 571 -- 72 of ILR 7 All.), I went on to say:--

Such being my interpretation of the ruling of the Privy Council in the case of (1884) L.R. 11 I.A. 126 (Privy Council) I cannot help feeling that the present case has a different aspect. The appellants, by paying off Lachman''s prior mortgage of 1866, are no doubt entitled to claim the benefits of that mortgage, but they cannot, in my opinion, be understood to have acquired rights greater than those which Lachman himself possessed. It seems to me that appellants possess two distinct capacities, first as holders of the equity of redemption, and, secondly, as persons entitled to the benefits of Lachman''s mortgage of 1866. It is clear that in the former capacity they could not resist the suit which aims at enforcing a valid security, and in the latter capacity, the payment of the mortgage of 1866 can at best place them in the position of assignees of that mortgage (vide last sentence in Story''s "Equity Jurisprudence," s. 1053 c.)

But such position will not, as I understand the law, enable them to prevent sale of the property in enforcement of the plaintiff''s mortgage of 1874, because such sale would not disturb or clash with the rights under the mortgage of 1866 which they have acquired by subrogation, and in their capacity as such, the exercise of the plaintiff''s lights cannot affect them. Nor can I hold that the union of the latter capacity with the former can in itself confer upon them rights higher than those which the mortgage they have paid off created. To hold the contrary view seems to me to amount to the proposition that the purchaser of the equity of redemption and the first mortgagee could, by a transaction entered into in the absence of the intermediate incumbrancer, and irrespective of his interests, place him in a worse position than before. Such a doctrine would be analogous in principle to the rule of tacking which the law of mortgage in this country, so far as I am aware, never recognised, and which has now been expressly negatived by s. 80 of the Transfer of Property Act.

The matter therefore resolves itself into the question, whether the holders of the rights of mortgage of 1866 could prohibit the enforcement of the mortgage of 1874; in other words, can a prior mortgagee prevent the sale of the equity of redemption in enforcement of a subsequent security?

It seems to me that, notwithstanding the mortgage, the mortgagor or the holder of the equity of redemption can alienate his rights by private sales, and it follows that he can do so by hypothecation. Such sale or hypothecation would, of course, be subject to the prior mortgage, and could in no manner disturb the priority of hen possessed by the prior incumbrancer or militate against his interests. So long as there can be no conflict between the rights created by the prior and the puisne incumbrances, it appears to me that property subject to two or more incumbrances can be sold in enforcement of any one of them, and the purchaser in such sale would acquire such right as the position of the incumbrance with reference to the rule of priority could convey. Such seems to me to be the effect of the unreported ruling of this Court (S.A. No. 159 of 1876), to which my brother Oldfield was a party. I think I may safely Bay that such was the law and the uniform course of decision before the passing of the Transfer of Property Act, and I have not been able to find any provision in that Act which lays down the contrary rule. S. 74 of the Act enunciates the rule that a subsequent mortgagee possesses the right to pay off a prior mortgage, but such provision cannot be understood to confer upon the prior incumbrancer the power of prohibiting either the mortgagor from dealing with the equity of redemption or the puisne incumbrancer from enforcing his security, of course subject to the rights created by the prior incumbrance. Indeed s. 96 of the Act distinctly contemplates enforcement of puisne incumbrance without paying off the prior incumbrances, for it speaks of the sale of property-subject to prior mortgage. Such a sale in enforcement of a puisne incumbrance cannot affect the prior mortgage, and no such conflict of rights can take place as in the case before the Privy Council, where both the contending mortgages included the right of possession which of course could not be simultaneously enjoyed by both the mortgagees. It seems to me that any other view of the law would necessarily involve the proposition that the only manner in which a puisne incumbrancer by hypothecation can en-force his security, is to pay off the prior mortgage first, and then to bring the property to sale. It is easily conceivable that such a rule would operate as a great hardship in cases where the value of the prior security is enormously larger than the amount of the puisne incumbrance, whilst in cases where the amount due on the prior mortgage does not become payable till long after the due date of the subsequent mortgage, the puisne incumbrancer would be obliged to wait for his money till the prior mortgage became redeemable. I find much difficulty in holding that the law contemplates such contingencies, and I am of opinion that a puisne incumbrancer is not prevented by the mere fact of the existence of a prior mortgage from enforcing his securities, so long as such enforcement does not clash with the rights secured by the prior mortgage.

Under this view, the appellants, as purchasers of the equity of redemption, hold that right, subject to the plaintiff''s mortgage of 1874, and the fact of their having redeemed the mortgage of 1866 does not place the equity of redemption on a better footing, though it entitles them to the benefits of that mortgage, secured to them in the same manner as to the original mortgagee Lachman, whose rights they have acquired by subrogation. In arriving at this view, I have had to consider whether the case of Gaya Prasad v. Salik Prasad ILR 3 All. 682 is an authority which binds me to adopt a contrary opinion. Having carefully examined the case, I find that it was not a Full Bench ruling of this Court, but only a reference under s. 575 of the Civil Procedure Code, arising out of a difference of opinion between the learned Judges of the Division Bench (Pearson and Oldfield, JJ.). The case was then heard by Stuart, C.J., and Straight, J., in the absence of the learned Judges who referred the case, a procedure which, according to the view expressed by a Bench of three Judges of the Court in the case of The Rohilkhand and Kumaon Bank v. Row ILR 6 All. 468 was erroneous. But putting aside this consideration, I find that out of the four judgments that are reported in that case, the judgments of my brothers Oldfield and Straight bear upon the question, which I am now considering, whilst the judgment of Pearson, J., proceeds upon a totally different ground, and the judgment of Stuart, C.J., is silent upon the point. Under these circumstances I do not feel myself bound by the ruling upon the point immediately before me, namely, whether the purchaser of the equity of redemption, who pays off a prior mortgage, can, by reason of acquiring the benefits of that mortgage, prevent the property from being brought to sale in enforcement of a mortgage which is anterior to the purchase, but subsequent to the mortgage paid off. Before leaving this question, however, I must refer again to some of the cases which I have already cited. The report of the case of Ramu Naikan 7 Mad. H.C. Rep. 229 is not very clear upon this point, but I may take it, that it laid down the rule "that a subsequent mortgagee gets all to which he is entitled when he is allowed to redeem the first mortgage." This is the dictum of Dernburg cited and adopted by Mr. Justice Holloway in that case; and the effect of the last part of Mr. Justice West''s judgment in the case of Mul Chand Kuber 11 Bom. H.C. Rep. 41 seems to be the same. With nearly the whole of that judgment I fully concur, and I would not willingly dissent from the conclusion of such eminent judges even upon the point now under consideration, were it possible for me to hold that the right of a prior incumbrancer enables him to suspend the enforcement of the puisne incumbrance by hypothecation, and that redemption of the former is a condition precedent to the enforcement of the latter, and so long as I cannot hold this I find myself unable to hold that the doctrine of subrogation can enable the party who benefits by it to hold rights which the prior incumbrancer (to whom he is subrogated) himself never held. I have carefully studied, and, I may say with great advantage, the judgments of Mr. Justice Holloway and Mr. Justice West, both of whom I esteem as eminent Judges, and great jurists, but (I say this with profound respect) neither of those judgments contains any exposition of the law upon the exact point on which I have ventured to differ from them, and no other authorities have been cited which sufficiently satisfy me to arrive at any conclusion other than that at which I have arrived. In all the cases to which I have been referred, the exact point seems to have been assumed or taken for granted as a necessary corollary to the doctrine of subrogation which prevents extinguishment of the prior mortgage.

When I expressed these views I must have been unaware that the same principle had already been adopted by the Madras High Court, for, in the report of my judgment I find no reference to those cases. One of them is the case of Vencatachella Kandian v. Panjanadien ILR 4 Mad. 213 which was decided by Turner, C.J., and Kindersley, J., and from the judgment of Sir Charles Turner in that case I wish to quote a passage which expresses my views in language better than I can employ. After dealing with the ruling in Ramu Naikan v. Subbraya, Mudali ILR 8 Mad. 246 Sir Charles Turner went on to say:--

If a person holds a mortgage on an estate, and after the owner has created a second mortgage in favour of a third party, acquires what right remains in the owner he does not thereby lose his right as mortgagee. The merger is prevented by the interposition of the right created in favour of the second mortgage, but I cannot accept the application of the principle adopted by the Court. When a second mortgage is created in favour of a person who is not the holder of the first mortgage, the second mortgagee is entitled to pay off the first mortgage, or to sell the estate subject to the first charge. On the same ground of regard for the interests of all parties that dictates the preservation of the rights created by the first charge, I am unable to see why the acquisition by the first mortgagee of the right remaining in the owner deprives the second mortgagee of his right to enforce his charge by a sale of the property subject to the rights of the mortgagee. If the first mortgagee had not acquired the right remaining in the owner, it is unquestionable that the second mortgagee would have been entitled to call for a sale of the property subject to the rights of the prior incumbrancer. His right should not be defeated by a transaction to which he is no party. If it had been considered an objection to the preservation of his right that the first mortgagee might subsequently have applied to the Court to order a sale (and I do not think it is, for the purchaser under the second mortgage might redeem the first mortgage and prevent a sale) then a sale should have been ordered of the property to discharge both mortgages and the proceeds should have been applied to their satisfaction in order of priority, but I believe the course which would have best fulfilled the contracts and secured the rights of the parties would have been to allow a sale subject to the first incumbrance.

I entirely agree with these views, and it was in accordance with the principles therein enunciated that in a later case Ganga Dhara v. Sivarama ILR 8 Mad. 246 the decree with the concurrence of Turner, C.J., and Muttusami Ayyar, J., was prepared--thus indicating that three Judges of the Madras High Court, namely, Turner, C.J., Kindersley and Muttusami Ayyar, JJ., agreed in a view similar to that which I took in a case of Raghunath Prasad Vs. Sirbadh Rai and Others, and which, as I understand, was approved by a Full Bench of five Judges of this Court on appeal in Raghunath Prasad Vs. Jurawan Rai and Another, when I had not the honor of being a member of that Bench. To the names of the learned Judges of the Madras High Court which I have mentioned I may add the name of Mr. Justice Shephard, who, in his commentary on s. 101 of the Transfer of Property Act, which only enunciates the old rule of Equity as explained by the Lords of the Privy Council in the case of (1884) L.R. 11 I.A. 126 (Privy Council) and referring to my dissentient judgment as to the effect of that ruling in Raghunath Prasad Vs. Sirbadh Rai and Others, goes on to express views which I wish to quote verbatim simply to show how fully that learned Judge agrees with me in interpreting the efficacy of the doctrine of merger and subrogation within the meaning of the Privy Council ruling. Mr. Justice Shephard says in the second edition of his work on the "Transfer of Property Act" (pp. 372-373):--

Mahmood J. held that under the rule in Gokal Doss'' case the defendant could not be understood to have acquired rights greater than those of the first mortgagee and that, as the latter could not have resisted a suit for sale at the instance of the second mortgagee, so the defendant, though entitled to possession until redeemed, could not prevent the plaintiff enforcing the security so long as such enforcement did not clash with the right secured by the prior mortgage. This decision, which agrees with that of the Madras High Court, seems unquestionably right.

I think I may add that the same is the effect of the rule as stated by Dr. Rashbehari Ghose, in the second edition of his well known work on the Law of Mortgage in India (pp. 141-2), and I now proceed to explain that if the rule is carried further, it would involve the recognition of the principle of tacking which has been expressly abolished by s. 80 of the Transfer of Property Act. Perhaps the best way to express my meaning is to take an illustration:--

A mortgages first to B for Rs. 5,000 and then to C for Rs. 3,000. Subsequently B purchases the rights of ownership still remaining in A from him for Rs. 15,000.

C. comes into Court to enforce his security by sale of the mortgaged property impleading the mortgagor A and the mortgagee B. The suit would thus be properly arrayed in point of parties according to section 85 of the Transfer of Property Act, for the illustration assumes that no other person is interested in the property.

A does not appear to defend the suit, or if he appears admits C''s claim.

B pleads that the purchase made by him was partly in lieu of money due upon his prior mortgage, the amount then due upon the mortgage being Rs. 11,000 and partly for a further sum of Rs. 4,000 which he paid to A as part of the consideration of sale and that therefore the plaintiff C could not bring the property to sale.

The question then would be what is the exact effect and scope of such a plea? It is clear according to the Privy Council ruling in (1884) L.R. 11 I.A. 126 (Privy Council) as explained by me in Sirbadh Rai v. Raghunath Prasad I.L.R., 7 All. 568, that the fact of the purchase by B of the rights of A did not extinguish B''s prior mortgage so as to render it unavailable to him as a shield or protection in resisting the claim of the puisne mortgagee C, and the same is the effect of s. 101 of the Transfer of Property Act.

But, then, the question would be, what is the exact extent of the shield or protection to which the defendant B in his double capacity of being the prior mortgagee and the purchaser of A''s right would be entitled to as against the plaintiff C? My answer to the question is that such shield or protection must be regarded as co-extensive with the pecuniary and other liabilities enforceable under B''s prior mortgage, neither more nor less. So that in the illustration the pecuniary value of the shield or protection to which B would be entitled would be exactly Rs. 11,000, which, according to the illustration, was due to B upon his prior mortgage at the time of his purchase from A. And here I may say at once that to that extent B would be entitled to assert his priority and insist that no sale that would take place in enforcement of C''s security, should be free of the incumbrance to that extent by reason of priority. But he would be entitled to no such priority with reference to the Rs. 4,000 which he advanced subsequently to the mortgage in favour of C in making his purchase from A. To hold that by pure dint of being a prior mortgagee making a purchase behind the back of the puisne mortgagee C, he (i.e. B) obtains priority also in respect of the fresh Rs. 4,000 would be to hold that he could tack on this fresh advance) to his prior mortgage and thus postpone C''s security. I say so, because the rule in principle Would be the same, if instead of making the purchase from A, B had obtained another mortgage in lieu of the fresh advance of 4,000 rupees.

In my opinion, our law does not allow this, for it repudiated the doctrine of tacking, and I hold that in the case supposed in the illustration, all that B would be entitled to is to assert his priority of incumbrance to the extent of 11,000 rupees due upon his prior mortgage at the time of the purchase from A, and that as to the further advance of 4,000 rupees, he should he regarded as puisne to the plaintiff C. In other words, as prior mortgagee, he could claim priority to the extent of the moneys due upon the prior mortgage, but as purchaser of the rights of the mortgagor A, he could not resist the suit of the plaintiff C, the object of whose suit is only to sell such rights as existed in it at the time of the mortgage and subsisted in him, till he, dealing direct with the prior mortgagee B, conveyed them, to him by private sale. Those rights cannot be protected simply in consequence of the accident of the purchaser happening to be a prior mortgagee, and it is only in respect of the saleability of rights that any difference of opinion existed between the views of Mr. Justice Oldfield and my own in the case of Raghunath Prasad Vs. Sirbadh Rai and Others, .

Applying these principles to the present case, all that the defendant Hari Prasad could plead was that his prior mortgages of the 10th September 1882, and the 23rd February 1884, were not extinguished by his purchase of the 20th September 1886; that the priority arising from those mortgages was still available to him as a plea requiring that the enforcement of Mata Din Kasodhan''s security of the 6th August 1885, by enforcement of sale cannot be decreed free of the prior two mortgages; and that it should be so declared in passing the decree in favour of the plaintiff Mata Din Kasodhan. Beyond this I am unable to hold that he (Hari Prasad, defendant) either as prior mortgagee or as the purchaser of the rights of Kazim Husain in the 4 annas share of mauza Barwa Kotwa (which is the only subject matter of this appeal) had any right to resist the suit, unless indeed he contested the genuineness and validity of the plaintiff''s mortgage of the 6th August 1885, which he did not do, Nor, as I have already explained, did he object to the frame of the suit in point of parties by reason of Mata Prasad, the puisne mortgagee of the 21st August 1885, not being impleaded as a party defendant to the suit.

In accordance with the views expressed in this judgment, I would decree this appeal, and, setting aside the decree of the Lower Appellate Court, remand the case under s. 562 of the CPC to that Court, directing it--

(1) To take an account of what was due to the defendant Hari Prasad on his mortgages of the 10th September 1882, and the 23rd February 1884, in respect of the 4 annas share of Kazim Husain in mauza Barwa Kotwa (which is now in suit) at the time when the sale-deed of the 20th September 1886, was obtained by the defendant Hari Prasad.

(2) To pass a decree in favour of the plaintiff in accordance with the terms of section 88 of the Transfer of Property Act, allowing the defendants such period as the Court may think fit for payment of such sum of money as may thus be found due upon the plaintiff''s hypothecation bond of the 6th August 1885.

(3) To decree that in default of such payment the property, subject to the plaintiff''s mortgage of the 6th August 1885, be sold subject to the prior lieu of Hari Prasad under his mortgages of the 10th September 1882, and the 23rd February 1884, so far as they affect the 4 annas share of Kazim Husain in mauza Barwa Kotwa, the amount found due to the defendant Hari Prasad in respect of Kazim Husain''s 4 annas share in suit under the defendant Hari Prasad''s mortgages of the 10th September 1882, and the 23rd February 1884, as ascertained under the first issue, thus remitted.

I would leave the question of costs to the discretion of the Lower Appellate Court under s. 220 of the Code of Civil Procedure.

For similar reasons I would decree the appeal of Mata Prasad (S.A. No. 1213 of 1888), and would frame a decree on similar principles, but since I understand that the views adopted by the majority of the Full Bench are opposed to mine, I need not pass a decree which is opposed to their views.

Straight, J.

I have had the great advantage before coming into Court of carefully perusing and considering the judgments of the learned Chief Justice and my brother Mahmood, and it is not without having given the fullest attention to all the arguments used in those two learned and exhaustive judgments that I have come to the conclusion that the view which the learned Chief Justice has taken is the correct one and that in which I ought to concur, I have only a few words to add. In one portion of my brother Mahmood''s judgment there is an elaborate reference to the difficulties likely to arise where the frame of a mortgage suit is such as the learned Chief Justice holds it should be, in the application of the principle of res judicata between the parties arrayed as defendants. Now, if I understand the law aright, when a statute specifically declares that a particular form of suit is to have the parties who fill certain characters in reference to the property to which the suit relates, arrayed therein, the Court having to deal with that suit must not only deal with the rights of the plaintiff and defendants on the one side and on the other, but must deal with and adjust the rights of the defendants inter se, just as much as in a partition suit where one of the several joint owners is seeking partition as against half a dozen others, not only has the measure of the plaintiff''s right and share to be determined, but also the measure of that of each of the defendants. I believe that no doubt exists in the mind of any lawyer that in a partition suit it is incumbent on a plaintiff to bring in as parties all those who are interested in the subject matter. And why? Necessarily for the purpose of effectually once and for all ascertaining and settling their respective rights and providing against the possibility of further litigation. My brother Mahmood has more than once spoken of the statute of limitation as a statute of repose. From what I remember when I first arrived in this country as to the multiplication of suits that used to Come before this and the other Courts with reference to mortgaged property, the inconvenience which continually arose and the mischiefs that attended them, I am not at all surprised that the Legislature put its foot down very firmly, and determined by the framing of s. 85 of the Transfer of Property Act to strike a death blow to that multiplication of suits which becoming a perfect pest to the Courts which had to administer the law; and s. 99 is also illustrative of the drastic methods the Legislature adopted, and, in my opinion, properly adopted. In the old days it was often the practice for a mortgagee to put his mortgage debt in suit as a simple money claim and not to ask for sale of the mortgaged property. It was also the practice for a mortgagee having an independent money claim against the mortgagor to bring a suit, obtain a decree and attach the mortgaged property and subsequently to bring it to sale. I need scarcely point out the complications and difficulties which often arose when there were subsequent incumbrances and as to what was the precise nature of the interest the mortgagee, if he purchased himself, as he invariably did, had acquired, and if he did not purchase himself but some third party did purchase that person almost always bought the luxury of a law suit, while, in either event, the mortgagor suffered. It was to meet this that s. 99 was enacted, which provided that where a person standing in the position of a mortgagee of landed estate obtains a decree against his mortgagor for the satisfaction of any claim, "whether arising under the mortgage or not," and not being a decree for sale on his mortgage, and attaches the mortgaged property he shall not bring the property to sale until he has first brought the suit provided for by s. 67 in which the parties must be arrayed as provided in s. 85 and he may do so without any bar of s. 43 of the Code of Civil Procedure. Now I say these two provisions are a strong indication that the Legislature intended, and most righteously intended, to have litigation with regard to mortgaged estate so far as possible dealt with and disposed of in a single suit with all the parties interested in the mortgaged property before the Court. I just may in conclusion refer to the decree my brother Mahmood would pass in the present suit, namely, that an account should be taken declaring what was due on a particular date to the defendants Hari Prasad, and, necessarily also that an account should be taken as to what was due to the mortgagee, plaintiff, and that the puisne incumbrancer, should have a right to sell the property subject to the ascertained amount due to Hari Prasad. Now if Hari Prasad had come into Court to enforce his mortgage, making the present plaintiff a party defendant, as he would be bound to, it cannot be denied that the only right the latter would have to stand in the way of the sale prayed for would be a right to redeem. I cannot myself see why because the plaintiff Mata Din was the first to come into court his position is any better or stronger. No doubt the amount of Hari Prasad''s prior incumbrance has been determined between Mata Din and Hari Prasad, but what about the absent mortgagor who has never appeared in the suit, or Mata Prasad who has never been brought on as a party, what is to prevent the mortgagor from hereafter, as against Hari Prasad, denying the mortgage to Mata Din and Mata Prasad; or Mata Din and Mata Prasad contesting with one another the genuineness or otherwise of their several mortgages. In any event Hari Prasad is left to the almost certain prospect of further litigation when he desires to enforce his prior mortgage. Now in the particular form of suit which is contemplated by section 85 what hardship is there in the form of decree that would have to be passed? It would do no more than give effect after investigation and determination to the actual rights of the respective mortgagees which by the Transfer of Property Act are declared. In neither of the present cases did Mata Din or Mata Prasad include the other as a defendant, although they had full knowledge of each other''s charge and they each sought to bring to sale the whole eight annas of Barwa Kotwa. In my opinion the learned Chief Justice''s decree is the right one, the provisions of section 85 being in my opinion mandatory and imperative and the interests of each of these persons being known to the other in each case and they not having been joined as parties defendant, the several suits were bad and were rightly dismissed by the Lower Appellate Court.

Tyrrell, J.

I concur in the judgment and decree of the learned Chief Justice.

Knox, J.

This second appeal raises questions of great importance with respect to the rights of second and other subsequent mortgagees. I do not propose to recapitulate the facts of the case. They have been given so fully by the learned Chief Justice and by my brother Mahmood, that I shall content myself with formulating the results found into two or three brief sentences. Mata Din, with whose rights this appeal is concerned, occupies the position of a third mortgagee in point of time, and he prays the Court for an order that a deed of sale over the mortgage, property, subsequent in point of time to his mortgage, and obtained by the mortgagees prior to him in lieu of monies due to them under two simple mortgage-deeds held by them may be set aside, and the mortgaged property, the subject of his, Mata Din''s, mortgage-deed, brought to sale. He has made no tender of the amount due to the said prior mortgagee, and, moreover, has not sought foreclosure of a simple mortgage executed by his mortgagor in favor of a mortgagee subsequent to him, viz., one Mata Prasad. Moreover, he has made Mata Prasad no party to this suit.

The question is whether, under the above circumstances, this Court should grant him the relief he prays for, and whether he, under the said circumstances, is entitled to an order for sale of the mortgaged property.

There can be, and there is, no question raised but that the law controlling the present case is that contained in Act IV of 1882.

The several mortgage-deeds which have been filed in this record, read in the light of the said Act, are amply sufficient to determine the position which the parties occupy to one another.

Two persons, Kazim Husain and Nadir Husain, mortgagors, have purported to create by transfer at different times rights in or over this same immovable property. The mortgaged property which Mata Din Kasodhan seeks to bring to sale is, so far as is material for the purposes of the present appeal, a 4 annas share out of 8 annas of Barwa Kotwa. The transferor Kazim Husain, in Matadin''s favor, gave or purported to give Matadin on the 6th of August 1885, the right to bring this property to sale if he did not repay on or before a date specified the monies borrowed by him. But the same Kazim Husain had on a prior date joined in creating an exactly similar right over the same property in favor of one Hari Parsad, and on a second date still prior to the 6th of August 1885 had a second time purported to give the said Hari Parsad a similar right over the same property.

In each case he purported to give Hari Parsad the same right which he purported to create in favor of Matadin, viz., the right to sell the 4 annas share in mauza Barwa Kotwa. So far as this property is concerned, he imposed no limit, and when the parties contracted on the first and on the second occasion, Hari Parsad may have been and probably was the more ready to grant the loan asked for, by the knowledge that he by the transaction acquired a right to ask the Court in the case of default by the mortgagor to bring to sale the whole of the property until his debt was satisfied. He might well have refused to enter into the transaction if he had known or contemplated that the whole or some portion of this property would be brought to sale without his having a hearing and without, at any rate, his debt being repaid before that sale was ordered. Property does not, as a rule, improve in value by being made the subject of repeated transactions of sale, and it is not difficult to contemplate the case of property originally sufficient in value to satisfy three or more mortgages for which it is made security depreciating owing to sale, it may be one sale only, to such an extent that it no longer commands in the eyes of the buying public a value sufficient to cover two of the three or more mortgages for which it was accepted and would have sufficed as security but for its having been put up to sale.

The rights to sell created by these mortgages were not rights which could be exercised to their full extent together, and there being in the prior mortgages no special contract or reservation binding the earlier transferee, the right created in favor of Matadin was subject to the rights previously created and was neither more nor less than the right of a subsequent mortgagee.

The rights of subsequent mortgagees as against a prior mortgagee, so far as regards redemption, foreclosure and sale of the mortgaged property are defined and limited by section 75 of the Act. They are simply the rights which the mortgagor has against the prior mortgagee and no other right of any kind whatever. We are not left without guidance in the Act as to what those rights are. They are enumerated in the sections numbered as ss. 60 to 66, both inclusive, and throughout those sections the word "sale" or the verb "to sell" in any form occurs only once, viz., in s. 63, where it obviously has no reference to the question immediately before me. I fail to find any express right of sale conferred upon the mortgagor as against his mortgagee throughout those sections.

Similarly, when I come to contemplate what rights Matadin Kasodhan has so far as regards sale of the mortgaged property as against a subsequent mortgagee, I find, on again returning to s. 75, that he is confined to the rights which he has against his mortgagor. These are set out in s. 67 to 77 of the Act, and they are confined (the exceptional circumstances of s. 69 which do not apply here being always excepted) to an order from a Court for sale obtained in a suit to which such mortgagor, or, in the case immediately under contemplation, subsequent mortgagees--the words must be interchanged--is a party.

Thus, then, I hold that, as regards mortgagees prior to him, if a mesne incumbrancer wishes to bring mortgaged property to sale, and joins in the suit against the mortgagor, as he should do and has done in the present instance, a prior mortgagee, he can do so only by redeeming or asking for redemption. Moreover, he cannot, so long as he, the mesne incumbrancer, occupies the position of a second or subsequent mortgagee, bring the property to sale, if he can bring it to sale at all, except by a suit to which every mortgagee is a subsequent party. He has, in short, not the free hands that a prior mortgagee has. Nor is there any hardship that I can see in his being fettered and restricted in his right regarding the mortgaged property by the existence of the prior and subsequent mortgages. He took his mortgage with notice of the existence of the mortgage prior to his and presumedly with a knowledge that his right would always be subject to it. Further, the fact of the mortgagor resorting to him and contracting with him a subsequent mortgage should have rendered him alive to the possibility of the mortgagor creating further and subsequent mortgages, if he can obtain them.

I have not attempted to govern my judgment by precedent, for the simple reason that this point has been so thoroughly exhausted by the learned Chief Justice. He has reviewed the authorities to be found in the judgments of this Court, of the other High Courts, and of their Lordships of the Privy Council.

That review shows that in almost every case, and that virtually, with the exception of two learned Judges, all other Judges who have considered a similar question to the one now before this Court have held directly or impliedly that "a mortgagee had no right to bring mortgaged property to sale under his mortgage without redeeming the prior mortgagee, if any, or affording the subsequent mortgagee, if any, an opportunity to redeem, and that in a suit by a mortgagee for sale on his mortgage, the other mortgagees, whether prior or subsequent, were necessary parties; and further, that the property which might effectively be brought to sale under a decree for sale in a mortgage suit was the specific immovable property, and not merely the rights and interests of the plaintiff and his mortgagor in such property." I need hardly say that I have for myself carefully examined these authorities, and I agree with him in the results which he has deduced from them and which I have just given expression to. It is therefore needless for me to say more upon this part of the appeal than that with such authorities before me, it is impossible to arrive at a conclusion which would have the practical effect of declaring those authorities to be in error, unless I were, able to prove conclusively from sources not considered in those judgments that there was room for another and a different opinion.

Such sources I have not been able to discover, nor have I been referred to them. On the contrary, the law appears to me to confirm, and to have been framed, whether of set purpose or not, in accord with those of the authorities cited above which were prior to 1882.

It will be seen from the view that I have taken that, independently of the presence of section 85 in the Transfer of Property Act, Matadin Kasodhan could not have succeeded in the present suit without joining as a party to it Mata Prasad. Whether he could have succeeded had he arrayed Mata Prasad as a defendant, it is needless to consider, for he has not so arrayed him.

Section 85 of the Act is, in my opinion, only the conclusion of the whole matter discussed in the previous section. It shows that an insuperable bar is placed in the way of all plaintiffs who bring a suit under Chapter IV of the Transfer of Property Act, unless and until they array as parties to the suit all persons having an interest in the property comprised in the mortgage sued upon, always provided that the plaintiff had notice of such interest when he brought the suit, or at any time when he could have asked the Court to make an interested person a party.

It is not open to the appellant to plead that he had not such notice.

I am of opinion that any mortgagee who brings a suit under the Act touching the mortgaged property, does so at the risk of having his suit rejected if he neglects to search the registers kept by the registrar of the district in which the mortgaged property is situated and to array as parties to his suit all whom from those registers he finds to be persons having an interest in the mortgaged property. This precaution is neither impossible nor impracticable and is only what every prudent man will adopt upon seeing the stringent language contained in s. 85 and the definition of the term "notice" in s. 3. In this case, however, there was another course open to Matadin. At the same time that he brought his suit, a suit of a similar nature had been filed by Mata Prasad, the subsequent mortgagee, and was being prosecuted pari passa with his suit. How can it be said, then, that he had no notice of the subsequent mortgage, and that it was not open to him to ask the Court under s. 32 of the CPC to array as a party to his suit Mata Prasad?

It is urged that s. 85 must be read as controlled by s. 34 of the Code of Civil Procedure, and that this Court must consider the want of parties as a matter which has been waived.

If the view which I hold regarding the rights of a subsequent mortgagee be correct, it is obvious that s. 34 of the Code cannot control s. 85 of the Transfer of Property Act, but must give way to it.

Further, waiver can only be made of advantages which the law confers solely for the benefit and protection of an individual in his private capacity, and where such law can be dispensed with without infringing on any public right or public policy. There can, however, be little or no room for doubt that s. 85 found its place upon the statute book, not merely for the protection of individual persons, but to put an end to scandals which prevailed and which were so graphically described by the Hon''ble Mr. Evans when the Transfer of Property Act was being brought on to the statute book. He particularly notes that there then existed no machinery for bringing together into one suit the various incumbrances on the property; endless confusion had been the result, and the decisions of the courts upon the almost insoluble problems arising from this state of things had been numerous and contradictory. The result was that the mortgaged property could not fetch anything like its value. The debtor was ruined, the honest and respectable money-lender discouraged, and a vast amount of gambling and speculative litigation fostered:" and concluded with the pregnant words,--"It had been one of the objects of this chapter to remedy these and other similar evils."

It is also contended that a result of s. 85 will be to convert a suit under the mortgage chapter into a suit for the settlement of all disputes that may arise between the parties interested in the mortgaged property; that it is easy to contemplate such a suit being of a most complex nature and one for the determination of which in one and the same suit the CPC makes no suitable provision. It may be well doubted whether this be so, but even were this a good objection, my answer to it is that I have to administer the law as I find it, and not as I might prefer it to be.

I find that a similar rule prevails in England. The rule there as enunciated by Fisher in his well-known Treatise on Mortgage is,--"As a general rule, all persons who have an interest either in the right of redemption, or in the security, must be joined, though the result may be the trial of a legal right between parties thus brought before the Court for different purpose" (Fisher on Mortgage, ss. 13-60). And I observe on the same authority a case quoted whereon a bill to redeem it became necessary to decide as to the voluntary character of a post-nuptial settlement (1 Eden. 55).

It would be difficult to contemplate a case involving more complex interests.

It must not be overlooked that the language contained in s. 85 of the Transfer of Property Act varies in a remarkable degree from the language usually employed in statutes. For reasons best known to those who drafted the section, and reasons which I think they have given expression to, the framers of the Act have not contented themselves with saying that all persons having an interest in the property may or shall be joined as parties to any suit under Chapter IV of the Act. They have gone further and prescribed in language which may be inartistic, but is most expressive, that all such persons must be joined as parties. I am well aware of the conflict of opinion which has obtained over the interpretation to be placed on the word "may" and the words "it shall be lawful" in interpreting procedure authorized by a statute, a conflict which, was fully considered in the case Julius v. Lord Bishop of Oxford L.R. 5 App. Cas. 214. Whether in this case I follow the rule of interpretation that the meaning of words regulating procedure are to the "solved aliunde from the context, from the particular provisions or from the general scope and objects" of the enactment under consideration, or the rule that "enabling words are always compulsory where they are words to effectuate a legal right," I see no reason for believing that the Legislature intended to leave with the parties interested in a mortgage any option as to what parties they might or might not array or with the courts who have to decide a suit brought under Chapter IV of the Act any option as to whether they might or might not grant relief in a suit where the parties were not arrayed as required by that section. For, in considering this section, we are confronted with a word which is not merely in effect "must" but with the word "must" itself. The procedure so imperatively enjoined is possible, may, more, it is practicable. There is no place for the argument that the section is merely one which confers a discretionary power. The parties, if they seek relief, are bound to array all persons interested, and the courts, before they grant relief are bound to see that the parties do so array the persons interested.

On every ground, therefore, I have no hesitation in concurring with the learned Chief Justice that this appeal must be dismissed. Last of all, I would only add that I concur in the opinion that "the rights, liabilities and reliefs of mortgagors and mortgagees, including second and subsequent mortgagees so far as redemption, foreclosure and sale are concerned, were in British India before Act IV of 1882 came into force, what Chapter IV of that Act has defined and declared such rights, liabilities and reliefs to be.

Order of the Court.

The Appeal will stand dismissed with costs and the decree below will be affirmed.