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Judgment
The Plaintiff, Nistarini Dasi, who was the widow and heiress of her husband, Radha Jiban Mustaffi, instituted this suit on the 9th of September 1895. She died during the pendency of the suit; and her representatives were placed on the record on the 5th and 30th of June 1896, respectively. The Defendant, Prashid Mohun Shaw Chowdhury, on the 22nd of June 1888, borrowed from one Loke Nath Mullick the sum of Rs. 25,000 upon a mortgage of the properties set forth in the schedule annexed to the plaint and marked with the letter A. On the 9th of August 1890 he executed a second mortgage in respect of some of the properties in favour of one Sarat Chunder Chose in consideration of a sum of Rs. 3,000 lent and advanced to him by the latter. Loke Nath Mullick died towards the end of 1888; and his legal representative, a person, named Sham Lall Mulliek, instituted in this Court in its Original Civil Jurisdiction a suit upon the mortgage of the 22nd June 1888; and on the 21st of July 1890 a decree nisi was made therein. Pursuant to the aforesaid decree the Registrar of the High Court took accounts, and found that the sum of Rs. 25,000 for principal and over Rs. 14,000 for interest was due upon the mortgage to Loko Nath Mullick, and he fixed the 10th day of August 1891 as the day for the payment of the said principal and interest. The mortgagor made default; and the property was accordingly advertised for sale on the 27th of August 1891. Apparently the sale was postponed, and the Defendant, Prashid Mohun Shaw Chowdhury, entered into negotiations with Radha Jiban Mustaffi for a loan in order to pay off the debts due by him on the mortgages to Loke Nath Mulliek and Sarat Chunder Chose respectively, and on the 7th of October 1891 Radha Jiban Mustaffi lent and advanced to the Defendant No. 1 the sum of Rs. 40,000 upon a mortgage of the properties which are included in the mortgage of Loke Nath Mullick with other properties. The mortgage-deed to Radha Jiban Mustaffi recites the circumstances to which we have already referred and then goes on as follows :--
Rs. 40,000 being required to repay the money secured by and due on those two mortgages and other small debts, and for my own personal expenses I applied to my co-sharers, the said Defendants, for a loan of that sum according to the terms of the Sulenamah of the 26th Assin 1292, and the decree of the High Court made on the basis of it; but they being unable, and having declined to do the same, I borrow from you Rs. 40,000 by mortgaging the share owned and possessed by me, viz., a 2 annas 18 gundas 8 rudras share, i.e., a 6-33rd share of the properties Nos. 1 to 89 of the schedule given below hypothecated in the said two mortgages, and the whole of the property No. 89 Which by partition fell to my share, and the whole sixteen annas of the property No. 90 purchased by me." And the mortgagor undertakes that after repaying the money due on the aforesaid two mortgages namely, that of Loke Nath Mullick and Sarat. Chunder Ghose, he shall cause a reconveyance of the property to he executed and registered and make over to Radha Jiban Mustaffi the mortgage-deeds which he would get buck. As a matter of fact, on the 8th of October 1891. the Defendant No. 1 paid off the mortgage of Loke Nath Mullick as well as Sarat Chunder Ghose, and obtained from them both their mortgage-deeds and the usual reconveyances which were duly made over to Radha Jiban Mustaffi.
Two days before the mortgage to Radha Jihan Mustaffi, viz., on the 5th of October 1891, one of the properties included in the mortgage to Loke Nath Mullick, and subsequently comprised in that of Badha Jiban Mustaffi, namely, property No. 65 of Schedule A of the plaint, was attached by the Sheriff of Calcutta in execution of a money-decree against the mortgagor. Radha Jiban Mustaffi died on the 17th April 1892; and on the 28th day of July 1892 the property No. 65 was sold in execution of the said money-decree, and was purchased by the Defendant, Dina Bandhu Shaw Chowdhury, the Appellant in this Court. The property being situate in Calcutta, it was attached by the Sheriff and sold by him. At the time of the sale the Plaintiffs'' attorneys give notice that it was subject to a lien of the Plaintiff as the administrator of her husband''s estate; and upon the evidence we have no doubt that the Defendant, Dino Pandhu Shaw Chowdhury, purchased it with notice of the lien.
The Plaintiff brought this suit upon the mortgage to her husband for the usual mortgage decree. Her contention is that in respect of the property No. 65 of Schedule A, which is also called No. 89 of Schedule B, Dino Bandhu''s purchase was subject to her lien; that he purchased only the equity of redemption; and that all the properties therefore in-eluded in the mortgage are subject to her claim. And she asked that it might be declared that she had a prior claim and that Dino Bandhu purchased only the equity of redemption subject to her lien; she also asked for an account and the usual mortgage decree.
The Defendant''s contention was that ho had purchased the property No. 65 of Schedule A, No. 89 of Schedule B, being-premises, Nos. 95 and 96, Shobha Bazar Street, Calcutta, free from all encumbrances.
The Subordinate Judge held that Radha Jiban Mustaffi was entitled to the benefit of the prior encumbrances; that what was attached by the Sheriff was only the equity of redemption in the premises, Nos. 95 and 96, Shobha Bazar Street; and that the Defendant, Appellant, acquired nothing more by his purchase than the equity of redemption; and he accordingly made the usual mortgage; decree against both the Defendants.
From this decree Dino Bandhu Shaw Chowdhury has appealed, and the case on his behalf has been argued by the learned pleader representing him with his usual ability and wealth of illustration. It is unnecessary to refer to all the arguments put forward, because the points with which we are about to deal cover, in our opinion, all the grounds taken before us on behalf of the Appellant. It has been contended in the first place that inasmuch as it was the mortgagor who actually paid the money to Sham Lall Mullick and Sarat Chunder Ghose and inasmuch as the reconveyances were executed, not in favour of Radha Jiban, but in favour of the mortgagor, we must not presume that the new mortgagee, viz., Radha Jiban Mustaffi intended to keep alive, or to have the benefit of the old securities in his favour. It was also contended that the cases upon which the Subordinate Judge has relied deal with payment made by a person having an interest in the property, and consequently as Radha Jiban had no interest in the property at the time the debts to Sham Lall Mullick and Sarat Chunder Ghose were paid off, the payments, assuming that they were made by him, cannot ensure to his benefit; it was also urged that although on the 5th October the old mortgages were subsisting, yet on the 8th October they were discharged, and that therefore the prior attachment took effect against the entire property and not merely as against the equity of redemption, and hence the Defendant, Dino Bandhu Shaw Chowdhury, acquired the premises, Nos. 95 and 96, Shobha Bazar Street, free of all encumbrances. And lastly, it was argued that, in any event, the Plaintiff was not entitled to an account as against Dino Bandhu Shaw Chowdhury except as regards the money actually paid to Loke Nath Mullick and Sarat Chunder Ghose, which amount to Rs. 30,838.
As regards the first contention it seems to us that the intention of all the parties concerned in the transaction was that Radha Jiban Mustaffi should have the benefit of the prior securities. In the case of Gokuldas Gopaldas v. Puranmal Premsukhdas (I. L. R. 10 Cal. 1035), their Lordships of the Judicial Committee of the Privy Council expressly lay down the principle governing this class of cases; and they say, in express terms, that it is a matter of intention to be gathered from the circumstances appearing in the case. The mere fact that the mortgagor pays the money to the prior encumbrancer for his own benefit, namely, with the object of getting a reduction in the amount to the debt (as actually happened in this case) cannot be taken as an indication of an intention on the part of the subsequent mortgagee not to keep alive the prior security for his benefit. The mortgagor in such instances is merely the agent of the mortgagee, and undoubtedly he is allowed to pay the money to the first mortgagee in order to give him an opportunity of getting himself released of some portion of the debt.
There were three parties concerned in the transaction which is the foundation of the present suit, Radha Jiban Mustaffi was one, the first Defendant was the other, and the prior mortgagees were the 3rd. A mere reference to the documents executed on the 7th and 8th October will show that it was distinctly covenanted between the mortgagor and Radha Jiban that the former would pay off the existing mortgages, take a reconveyance of the properties, and make over the mortgage-deeds to Radha Jiban. There could have been no possible reason for that condition, unless Radha Jiban intended to keep alive these former securities for his benefit. Wo agree with the Subordinate Judge that all the circumstances in this case lead to that conclusion. Upendra Nath Paul, the brother of the Plaintiff, was not only present at the execution of the mortgage in favour of Radha Jiban, but appears to have accompanied the mortgagor at the time of the payment by him of the mortgage debt duo to Sham Lall Mulliek and Sarat Chunder Whose. He was present also at the execution of the reconveyances, and his presence can only be explained by the fact that Radha Jiban Mustaffi was anxious that the mortgagor should pay off the old mortgages, and obtain for him the reconveyances which he had convenanted to do. There is absolutely no evidence to the contrary; and we are of opinion that it is abundantly clear in this case that the intention of the parties was to keep alive the former securities for the benefit of the Plaintiff, Respondent.
As regards the question whether Radha Jiban Mustaffi had any interest in the property which would entitle him to have the benefit of the payments made by him. We think the expressions, used by the learned Judges in the cases referred to, must be read along with all the facts; nor is there anything to show that the principle is of that limited character contended for by the learned pleader for the Respondent. In this ease the mortgage to Radha Jiban Mustaffi was executed on the 7th October 1891; and at that time he acquired an interest in those properties, and on the 8th October with the money advanced by him the former debts were paid off. We think that the Subordinate Judge was right in holding that Radha Jiban had an interest which entitled him to make these payments and to obtain the benefit of these payments.
Proceeding now to the attachment, we find that on the 5th October 1891 what was in fact attached, and could be attached, was merely the equity of redemption belonging to the mortgagor. In our opinion the discharge of the prior mortgages on the 8th of October did not enlarge the subject of the attachment made on the 5th October. This is clear upon the provisions of sec. 276 of the CPC which runs thus:-- " When an attachment has been made by actual seizure, or by written order, duly intimated and made known in the manner aforesaid any private alienation of the property attached whether by sale, gift, mortgage, or otherwise, and any payment of the debt or dividend, or a delivery of the share to the judgment-debtor during the continuance of the attachment shall be void as against all claims enforceable under the attachment." The property attached in this case was the equity of redemption, and consequently what was purchased by Dino Bandhu Shaw Chowdhury was merely the equity of redemption. We are of opinion, therefore, that the premises, Nos. 95 and 96, Shobha Bazar Street, Calcutta, are subject to the Plaintiff''s claim. As regards the question whether the Plaintiff is entitled to an account as against Dino Bandhu Shaw Chowdhury to anything more beyond the money actually applied to pay off the mortgages of Loke Nath Mulliek and Sarat Chunder Whose, it has been conceded by the learned pleader for the Respondent that she is not so entitled.
We accordingly affirm the decree of the Subordinate Judge with this modification, that is to say, that so far as Dino Randhu Shaw Chowdhury is concerned the mortgage accounts (sic) him (sic) be taken on the (sic) payments made to (sic) and Sarat Chunder (sic) tionably amount (sic) As this modification could have been obtained in the Lower Court by calling the attention of the learned Subordinate Judge to it, we dismiss the appeal with costs.