Ram Dass Saw and Others vs Ramnandan Prasad Singh and Others

Ross, J.—This appeal arises out of a suit on a mortgage for Rs. 1,500 executed on 11th December 1914. The appellants who were defendants 25 to 27 claim priority in respect of their charge upon the mortgaged property. It appears that on 11th December 1 14 two mortgages were executed in favour of the plaintiff''s predecessor on a rehannama for Rs. 1,500 and the other a simple mortgage for the same sum. The appellants took two ijara leases of the land which was covered by the mortgages from the mortgagor on 31st May 1922, one in consideration of an advance of Rs. 1,300 of which Rs. 1,250 was left with the ijaradar to pay off the rehan debt above mentioned and Rs. 50 was paid in cash to the mortgagor and the other in consideration of Rs. 275 of which Rs. 250 was left with the ijaradar to pay off the balance of the rehan debt and Rs. 25 was paid in cash to the mortgagor. The rehan debt was paid off accordingly and the appellants claim that they stand in the shoes of the rehandar and have priority over the simple mortgage.

There are two questions: first, was the rehannama actually prior to the simple mortgage; and, secondly, if so, was that charge kept alive? On the question of fact the learned Subordinate Judge has pointed put that the numbers on the stamps of the rehan-deed preceded the numbers on the stamps of the mortgage-deed and also that the rehannama was registered first. These facts while suggesting that the rehannama was executed before the simple mortgage, are not in themselves decisive. But in my opinion, there is internal evidence in the documents themselves to support this conclusion. Both the rehan and the mortgage recite the same long lists of debts for the satisfaction of which they were executed. These debts plus the cash advance made at the time of execution amounted to Rs. 3,000 and they are divided into two parts. The first part of those debts amounts to a total of Rs. 1,698-2-9 which is expressly stated in the deeds. These debts were due to the mortgagee. The remaining debts due to others than the mortgagee amount, with the present advance, to Rs. 1,301-13-3, although this total is not expressly stated.

In the rehannama the following passage occurs:

Therefore, we, the executants requested the said creditor Babu Munshi Singh to get a registered Rehannama executed for Rs. 1,500 and a registered mortgage-bond for Rs. 1,500 and to deduct out of the above-mentioned loan and Rehan moneys Rs. 1,698-2-9 as specified above which he had already advanced them for repayment of debt and decretal moneys and to make over to them the balance money in cash in order to pay the decretal money and the debt due to the creditor and for meeting other necessary expenses.

and, later on

he deducted the entire rehan money Rs. 1,500 out of the above-mentioned debt, Rs. 1.698-2-9 to the said mortgagee.

The simple mortgage contains the following passage.

We have allowed a set off of Rs. 198-2-9 out of Rs. 1,698-2-9 which after payment of Rs. 1,500 under a rehannama-deed, dated 11th December 1924, is justly due from us the executants against the said loan money due to the said creditor and have received the balance Rs. 1,301-13.3, in cash.

And there is a covenant that until repayment of the money covered by this bond the mortgagor will not transfer and hypothecate the hypothecated properties directly or indirectly anywhere or in any way in the shape of thica ijara etc. It seems to me to follow from these recitals that the rehannama had been executed before the simple mortgage.

On the question of priority the learned vakil for the respondents contended that the money due on the simple mortgage was payable two years after execution, whereas the rehan was for seven years and, as the debt on the first deed matured first, it must he taken to have been executed first. In my opinion no such inference can be drawn from these facts. The due date of the mortgage seems to have little bearing on the question whether that debt had priority and, in view of the internal evidence that in fact the rehannama was executed first, this speculative argument cannot be given any weight. The internal evidence also, answers the argument that the two deeds should rank pari passu.

The rehan debt was paid off by the appellants who made the further advance. The question whether it was kept alive is a question of intention and intention may be found from the deed or the circumstances of the transaction and may be presumed from considering whether it was or was not for the benefit of the person who made the payment that the charge should be kept alive Here an ijara for seven years from 1923 to 1929 was taken in 1922 for an advance of Rs. 1,575 with the condition that if the advance was not repaid, the ijara was to remain in force until repayment. In 1922 the debt secured by the simple mortgage was long overdue. The rehannama which was paid off by the later advance contained a reference to the simple mortgage, and an intention to keep the prior charge alive must be presumed, otherwise the security would be altogether precarious.

I, would, therefore allow this appeal and modify the decree of the learned Subordinate Judge by declaring that the sale of the mortgaged property will be subject to the appellant''s charge for Rs. 1,500. The appellants are entitled to the costs of this appeal.

Wort, J.

I agree.