John Beaumont, C.J.
1. This is an appeal from the judgment of the F. C. Subordinate Judge of Dharwar. The appeal is presented by defendants Nos. 6, 7, 1, 2, 3 and 5, but Mr. Coyajee who appears for the appellants has abandoned all the points, except two which affect defendant No. 6, and those points arise in this way. In 1871 there was a mortgage of properties by Hayatmir I, who appears in the pedigree set out in the judgment of the trial Court. Hayatmir I died in 1872, and in 1873 his son Hussain created a second mortgage in favour of the same mortgagee, and in 1879 there was another mortgage to the same mortgagee and the mortgagee was put in possession of the property. Hussain died in 1890 leaving four sons and a daughter. Two of the sons Hayatmir II and Ibrahim died in 1906. In the year 1907 the other two sons Abu and Mohadin created a mortgage of the lands in favour of defendant No. 6 and to that mortgage I will refer more in detail presently. That is Exhibit 82. In 1909 the two sons Abbu and Mohidin purported to sell part of the lands being survey Nos. 26 and 55 to defendant No. 6, the sale-deed being Exhibit 83. The plaintiff in this suit has purchased the interests of various defendants but in substance he claims through the two sons and daughter of Hussain who were not parties to the mortgage and sale to defendant No. 6. The first point which is raised is that the mortgage of 1907 and the sale of 1909 being made by two of the heirs of Hussain could not bind the interest of the other heirs but could only bind the interests of the two heirs who sold. Against that contention Mr. Coyajee relies on the case of Hasan Ali v. Mehdi Hussein I.L.R. (1877) All. 533 In that case the deceased was a Mahomedan, as in the present case, and the heirs were two minor sons of a nephew, and a niece, and the niece sold the deceased's property in order to pay his debts. The sale was upheld, but I think it was upheld mainly on the ground that the niece who made the sale was the guardian of the infants and that the sale was one for their benefit, being to discharge debts for which they were liable. On the other hand it has been held by a full bench of the Madras High Court in Abdul Majeeth v. Krishnamachariar I.L.R. (1916) Mad. 243 that one of the co-heirs of a deceased Mahomedan in possession of the whole or part of the estate cannot make a sale of the estate which is binding on his co-heirs. That decision has been followed by this Court in Bhagirthibai v. Roshanbi: Mirkha v. Bhagirthibai I.L.R. (1918) Bom. 412 21 Bom. L.B. 329 The proposition is accepted by Sir Dinshah Mulla in his book on Mahomedan Law and by Mr. Tyabji in his book on Mahomedan Law as correct, and I think we must follow it.
2. Then the second point taken by Mr. Coyajee on behalf of defendant No, 6 is that even assuming that the mortgage of 1907 and the sale of survey Nos. 25 and 55 to him are invalid except in respect of the shares of the two vendors, nevertheless he is entitled to a charge on the family property, the subject of the mortgage of 1907, for the moneys advanced by him in so far as they were used to pay off prior mortgages. The mortgage of 1907, which is Exhibit 82, recites the prior mortgages made by Hayatmir and Hussain Miya and then it says:-
For the purpose of redeeming these our lands by filing a suit against those persona and for the necessity of our household expenses we wanted monies; so having this day agreed to pay interest at the rate of Rs. 1 per cent, per month, we have taken Rs. 1,500 in cash from you as debt.
and then they proceed to charge the land. It saems to me clear that the intention was to use the money or part of it for the purpose of paying off the prior mortgages and to give defendant No. 6 as the mortgagee a first charge on the property.
3. What happened subsequenty was that suits Were brought to redeem the mortgages and they wore subsequently redeemed and presumably the mortgages wore retained by defendant No, 6 in respect of his mortgage though. I do not think that fact is in evidence. In 1909 when the two properties were purported to be sold to defendant No.6 by a sale-deed which is Exhibit 88, the amount due on the mortgage to him was taken as part payment of the purchase money and no doubt on that occasion the mortgage was treated as discharged. Defendant No.6 has not got the mortgage in possession now and we must presume that it was handed back to the mortgagor. But I think it does not lie in the mouth of the present plaintiff who challenges that sale in be far as it affects the lands of his predecessors-in-title to rely on that part of the sale which involved discharging the mortgage. I think that so far as the plaintiff is concerned, if the sale is set aside at all, it must be set aside in its entirety and the vendor and purchaser must be left to the rights which they then had in respect of the mortgage.
4. Now the question is whether these prior mortgages created by Hayatmir I and Hussain, the predecessors-in title of the parties, must be taken to have been kept alive in 1906 for the benefit of defendant No. 6 to the extent to which his moneys were used to pay off those mortgages. There are three Indian cases which are, I think, relevant. The first is Mohesh Lal v. Mohunt Bawan Das (1883) L.R. 101. A. 62 which lays down this proposition which I take from the head note:- 'Whether a mortgage paid off is extinguished or kept alive depends upon the intention of the parties.' That is the general principle established in Courts of Equity in England and which applies in India, Then the next case is Gokuldoss Gopaldoss v. Rambux Seochand which establishes this, that the doctrine laid down in Toulmin v. Steerc (1817) 3 Mer. 210 that the purchaser of an equity of redemption cannot set up a prior mortgage of his own, or which he has got in, against subsequent in cumbrances of which he had notice, is not to be regarded as a rule of justice, equity and good conscience, and therefore cannot be applied to such Indian transactions as are governed by that rule. The rule in Toulmin v. Steere has given rise to much difference of judicial opinion in England. According to the latest decision on the point, which is the case of Whitley v. Delaney (1914) A.C. 132 the case is not actually overruled though its authority is considerably shaken. At any rate the case of Gokuldoss v. Rambux shows that in this country we are not embarrassed by Toulnin v. Steere and that the general principle applies--that you must consider whether parties intended to keep the mortgage alive or to discharge it, Then the third case which I may refer to is the case of Dinobundhu Shaw Ghowdhry v. Jogmaya Dasi in which the principles dealing with this class of cases are discussed by Lord Lindley delivering the judgment of the Privy Council and he follows the earlier cases and points oat again that the question turns on the intention of the parties. It seems to me that applying those principles to this case it is perfectly plain that by the mortgage of 1907 it was intended that the mortgagee defendant No. 6 should get a first charge, for his money of Rs. 1,500 was to be used in redeeming the prior mortgages, and he was to get a first charge on the whole property. No doubt that mortgage was based on a mistaken view that the two mortgagors could deal with the entire interest in the whole property, and that no doubt accounts for the form which the transaction took and the fact that the prior mortgages were not in terms kept alive. It might, I think, be possible to rely on the principle acted upon by the House of Lords in Whitely v. Delaney, that as soon as the mistake was discovered the mortgagee might have taken steps to have the transaction rectified by having it put in the form in which it was intended to operate, viz,, by keeping the mortgages alive for his benefit. But I do not think it is necessary to rely on that principle. I think it is enough to say that there was an intention hero which is to be gathered from the circumstances of the case and the terms of the document that defendant No. 6 was to be in the position of first mortgagee and that intention can and should be given effect to in respect of the money advanced by him so far as it was used to pay off the prior mortgages. That being so, I think we must vary the learned Judge's order by declaring that defendant No. 6 is entitled to a charge on the properties in question which are survey Nos. 55, 68, 69, 23 and 26 for so much of the Rs. 1,500 advanced by him on mortgage Exhibit 82 as was in fact applied in the discharge of the prior mortgages referred to in that mortgage, and I think we must remand; the case back to the lower Court for a finding as to how much of those moneys were so applied. It is true that the. learned Judge in paragraph 35 of his judgment does state that with the moneys raised from defendant No. 6 the prior mortgages were redeemed, but this question of subrogating defendant No. 6 to the rights of the prior mortgagees was not raised in the trial Court and I am not satisfied that the learned Judge had present to his mind this question or considered in any detail how the moneys raised on the mortgage of 1907 were applied. I think, therefore, it would not be right to act on his finding in paragraph 35 of his judgment and the case must, therefore, be remanded for an inquiry. The appeal will be allowed to that extent and the appeals of appellants other than defendant No. 6 will be dismissed with costs, Costa of the appeal of defendant No. 6 will have to abide the result of the inquiry.
1. I agree and have nothing to add.