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Judgment
Das, J.—Mauza Manga Bigha belonged to two brothers, Thakur Prasad Singh and Bishun Prasad Singh, each of whom had an eight-annas interest in the village. Thakur Prasad died sometime before 1899, leaving two sons Jit Singh and Gobind Singh, each of whom became entitled to four-annas interest in the village. Bisbun Prasad is also dead and has left a son Baikuntha Prasad who became entitled, upon the death of his father, to eight-annas interest in the village. Baikuntha was cited as defendant No. 3 in the action, and is one of the appellants before us.
On the 3rd of November 1902 the village was sold at a sale held for non-payment of arrears of road cess and was purchased by one Madhusudan. It appears that, notwithstanding the fast that, at the date of the notice, Thakur Prasad was dead and Bishun Prasad was an adult, notice was issued on Thakur Prasad for self and guardian of Bishun Prasad. As will afterwards appear, the sale was ultimately set aside on the ground that the notice was defective.
Madhusudan got possession of the village on the 19th of June 1902 and sold it to Lachmi Narain on the 17th of November 1903. Lachmi is the father of defendant No. 2 and brother of defendant No. 1. They are the remaining appellants before us.
On the 16th September 1805 Lachmi Narain sold eight annas out of the 16 annas purchased by him to the plaintiffs. It has been found by the Court below, and not disputed before us, that out of the consideration for the conveyance the plaintiffs paid Rs. 1,766 9-3 to Lachmi Narain and the sum of Rs. 3,245- 8-0 to certain creditors of Bishun Prasad who held mortgages over his eight, annas share, which Lachmi as the person in whom the equity of redemption vested was bound to discharge.
In 1913 Baikuntha instituted a suit, against the present plaintiffs for setting aside the road-cess sale and for recovery of possession of his eight-auras interest in the village. The suit was in duo course decreed and he recovered possession of his eight annas interest in the village on the 7th of March 1914.
On the 18th September 1916 the plaintiffs-respondents instituted the present action against the appellants for the following reliefs:
(1) That it may be adjudicated and declared by the Court that Rs. 3,263 6 9 principal and Rs. 990 interest, total Rs. 4,353-6 annas 9 pies, is a "charge" on eight-annas share of Mauza Manga Bigha, Pargana Arval, District Gaya, bearing T. No. 682--the milkiat rights detailed below in this plaint, and after adjudication of the same the above amount, principal and interest together with costs may be awarded to the plaintiffs by the auction sale of the above property; and if the sale-proceeds be not sufficient (to pay off the amount), the remainder money may be realized from the persons and properties of defendants Nos. 1 and 3 (?); and the remaining amount Rs. 1,766-9-3 principal, Rs. 537 interest, total Rs. 2,303 9 3, may be awarded against the persons and properties of defendants Nos. 1 and 2; and Rs. 170 principal and Rs. 51-9-0 interest, total Rs. 221-9 0, may be awarded (to the plaintiffs) against the persons and properties of the defendants. But if the Court does not think Rs. 4,253-6-9 recoverable by the plaintiffs to be a ''''charge" on the aforesaid property on the basis of the payment of the prior mortgage loan, then in that case the plaintiffs may be awarded that amount against the persons and properties of defendants Nos. 1 and 2.
(2) That pendente lite and future interest till the day of payment may be awarded to the plaintiffs against the persons and properties of the defendants.
(3) That all costs in Courts with interest may be awarded to the plaintiffs against the persons and properties of the defendants.
The learned Subordinate Judge has given the plaintiffs a decree substantially as claimed by them.
I have come to the conclusion, much against my inclination, that the plaintiffs are not entitled to a mortgage-decree against Baikun. the Prasad. The plaintiffs say that they are entitled to be subrogated to the securities held by the creditors of Baikuntha and to enforce those securities against Baikuntha. Now it is settled law that though the purchaser of an equity of redemption, upon paying off prior mortgages, is subrogated to the rights of the mortgagees paid off, a person cannot claim a subrogation when he simply performs his own obligation or covenant. Can it be said, then, that the plaintiffs were the purchasers of an equity of redemption? Now prior to the conveyance in favour of the plaintiffs Lachmi Narain had 16 annas interest in the village. Heconveyed an undefined eight annas to the plaintiffs. Bishun''s mortgage affected his eight annas. How can it then be suggested that the interest purchased by the plaintiffs was subject to the mortgages created by Bishun Prasad? Had the mortgagees enforced the mortgage security against Lachmi Narain and the plaintiffs, they could not have claimed a mortgage decree against the plaintiffs, for it could not be established that the undefined eight annas purchased by the plaintiffs belonged to their mortgagor, Bishun Prasad.
But it was argued on behalf of the respondents that although the plaintiffs took an undefined eight annas from Lachmi Narain, still as Lachmi Narain had not a good title in regard at least to four annas out of 16 annas which he had, the conveyance of eight annas to the plaintiffs must have included at least a portion of the eight annas which belonged to Bishun. This argument is based on the admitted fast that on the 18th September 1905 the plaintiffs purchased four annas belonging to Jit Singh at a sale held in execution of a mortgage-decree against Jit. It was argued that as four annas prior to the 18th of September 1905 belonged to Jit Singh, Lachmi could not have had 16 annas in the village on the 16th September 1905, He could only have had 12 annas, that is to say, four annas belonging to Gobind Singh and eight annas belonging to Bishun Prasad, and as he conveyed eight annas oat of that 12 annas to the plaintiffs, that conveyance must have been subject to the mortgage created by Bishun Prasad.
The fallacy of the whole agrument consists in the fact that the conveyance by Lachmi to the plaintiffs is dated the 16th September 1905, whereas the purchase of the plaintiffs of four annas belonging to Jit Singh is dated the 18th September 1905. On the 16th September 1905 Lachmi Narain purported to sell eight annas out of the 16 annas to the plaintiffs. If we are to take note of actual facts, then Lachmi had no title to any portion of the properties purchased by him, because the road-cess sale was absolutely bad and gave no title whatever to the purchasers. The question which we are at present investigating must depend upon the title created by the conveyance of the 16th September 1905. That conveyance confessedly gave an undefined eight annas out of 16 annas to the plaintiffs and as there is nothing to show that that eight annas was subject to the mortgage created by Bishun Parsad, I must hold that the purchase of the plaintiffs was not the purchase of an equity of redemption. The plaintiffs undoubtedly paid off the prior mortgages affecting the share of Bishun Prasad, but they did so out of the consideration money payable by them to Lachmi. not her words, they did not pay off the prior mortgages for their own protection, but in performance of their own obligation or covenant.
As against defendants Nos. 1 and 2, however, the plaintiffs are entitled to a decree for the entire sum paid by them not only to Lachmi Narain but to the prior mortgagees.
I would vary the decree passed by the learned Subordinate Judge and. give the plaintiffs a decree for Rs. 1,766 9-0 and Rs. 3,245-8-0 with interest at 12 percent. per annum from the 7th March 1914 till the date of this decree. Interest at 6 percent. will run on the decree from the date of the decree until realization. The plaintiffs'' suit against defendant No. 3 must be wholly dismissed. Defendants Nos. I and 2 must pay the costs of the suit and of this appeal to the respondents. As between defendant No. 3 and the plaintiffs we make no order as to costs. The cross objections were not pressed and must be dismissed.
Ross, J.
I agree.