1. For the appellant is this case the objection has been taken that the tacking of a later to an earlier mortgage was improperly allowed as against one of intermediate date. For the respondent it is urged that the suit having been brought for ejectment of the mortgagee in possession under the first and third mortgages, the decree now sought to enforce redemption or foreclosure cannot properly be made in such a case. We will deal with the latter question first.
2. The plaintiff, having succeeded in a suit against the original Mortgagor, found he could not obtain possession under his decree by reason of the defendant's occupying the mortgaged house under two other mortgages. He sued him for possession until his mortgage money should be paid with damages for his exclusion and mesne profits during the pendency of the suit. The plaintiff denied both the mortgages of the defendant. The defendant denied the plaintiff's mortgage, and insisted that he must, at any rate, be paid the amount of both his mortgage claims before he was called on to give up possession. A suit to eject the defendant as having no right to possession would no doubt, have been one of quite a different character from a suit to enforce payment by sale or foreclosure--Shridhar Vinayak v. Narayan valad Babaji 11 Bom. H.C. R. 224. From one point of view the suit might be regarded as of the former kind; but then the plaintiff inconsistently claimed a decree for possession until payment, not absolutely, though he had become mortgagee of the equity of redemption so far as this was vested in the original mortgagor, and entitled to possession as against him by means of his decree against that person. The inconsistency might have been objected to, and the plaintiff might have been called on to elect whether he wanted to be paid as a creditor by the defendant as subsequent mortgagee of the equity of redemption, or to oust the defendant as wrongfully holding under a false title, or to enforce redemption of the defendant's first mortgage while denying his alleged right under the second mortgage to him. These steps were not, however, taken, and the respondent, who failed to press on the Courts below the necessity of trying only one of the alternative causes of action, cannot now require that their decisions should be reversed on that ground if, in fact, the material questions between the parties have been investigated so as to afford the materials for a correct adjudication between them. Nor can he rest on the circumstance of the suit having been brought in an objectionable form in order to maintain the decree by which he would profit. If the objection is sufficient, it is fatal to the decree if not, the decree must be examined on its merits, and affirmed, reversed, or amended, not according to the demerits of the pleadings, but according to the justice of the case as it appears on the record.
3. The Subordinate Judge, though he did not apprehend the case in exactly its true bearings, yet raised the questions of the genuineness and validity of the several mortgages, and of whether the plaintiff was entitled to possession as against the defendant, and on what terms. These issues, to use the language of the Judicial Committee in a recent case, 'were exhaustive of the questions, and were intended to be exhaustive.' The findings of fact on them are sufficient for the decision of the case, and the defects of form are not such as can have stood in the way of a complete investigation. As the objection then was not taken in the Courts below, we do not think we ought to entertain it and, because the plaintiff must fail in a suit of simple ejectment, send him back to begin a new litigation to enforce redemption of his mortgage. Whatever his assertions might be, he sought only the relief that he thought due to him as a mortgagee. The Courts below considered that question, and we too may consider it without further waste of procedure.
4. The respondent obtained decrees in the lower Courts on the ground that he was a mortgagee in possession when the plaintiff took the second mortgage, and continued in possession after that mortgage, whereby defendant's second mortgage obtained a preference along with his first over the intermediate one to the plaintiff. By the Hindu law, rights not enjoyed in the form of, actual possession do not require a transfer of possession in order to give effect to an alienation or incumbrance--Lalubhai Surchand v. Bai Amrit I.L.R. 2 Bom. 299; and as a pledge may be disposed of subject to the pledgee's right, so may the latter be dealt with subject to the pledgor's right. Hero the three mortgages are all found to be genuine. The last two were duly registered; the first did not need registration. Hence the obligations secured by them ought to be satisfied in the order of priority, and the defendant's right as against the plaintiff is either to redeem his mortgage, if he will, or else to hold the mortgaged premises until his own first mortgage is redeemed by the plaintiff. The English doctrine of tacking arose from the mortgagee holding the complete legal estate. It was thought that equity could not compel him to part with it until all his claims on it were satisfied. The doctrine is inconsistent in principle with such cases as Hopkinson v. Rolt 9 H.L. 514; and it has been, condemned, though it could not be denied as English law, by Lord Blackburn--Jennings v. Jordan L.R. 6 Ap Ca.. 715. A doctrine so peculiar and so objectionable is not one to introduce into the Mofussil on the ground of its manifest justice and utility. The defendant Pandurang may redeem the mortgage to Venkoba by payment of the sum due thereon within three months of the ascertainment of the sum in the Court below. Failing this, he must yield possession to the plaintiff on payment into Court, by the latter, within three months further of the sum due on foot of Pandurang's first mortgage, as ascertained in execution. The parties severally are to bear their own costs throughout.