1. This appeal arises out of a suit for sale upon a mortgage, dated the 19th of January 1886, executed in favour of one Chet Ram. It has been found that Chet Ram was only banamidar for the vendors of the plaintiff and that those persons were the real mortgagees. On the 13th of July 1886, the heirs of the mortgagors sold a portion of the mortgaged property to Vilayati Begam, the mother of the appellant Muhammad Sadik. The consideration, for the sale was Rs. 875 and it was stated in the sale-deed that the vendors had received the whole of the amount of the consideration in cash, but had left it with the vendee to pay off debts due to Chet Ram and Kadher Mal and that the vendee was to pay those debts and obtain receipts from the creditors. One of the debts, which the vendee undertook to discharge, was the debt due under the mortgage deed of the 19th of January 1886, of which Chet Ram was the nominal mortgagee. Vilayati Begam made a gift of the property to the appellant, Muhammad Sadik. His contention is that the mortgage in favour of Kadher Mal was discharged by Vilayati Begam, and that as the said mortgage was dated the 21st of June 1881 and was thus of a date prior to the date of the mortgage, on foot of which the plaintiff has brought this suit, he (the appellant) has priority over the plaintiff to the extent of the amount which was paid to Kadher Mal and can hold up the mortgage so discharged as a, shield against the claim of the plaintiff. In the Court of first instance no such plea was put forward in the written statement nor was any issue joined on the point, but in the lower appellate Court, the plea was advanced. That Court overruled it on the ground that the appellant or his predecessor-in-title had acted in the matter of the payment of Kadher Mal's mortgage as the agent of the mortgagors and could not, therefore, claim the benefit of the payment as against the plaintiff. The correctness of this view of the learned Judge is questioned in this appeal.
2. In all cases where a subsequent purchaser claims priority over a puisne mortgagee by reason of his having discharged a prior mortgage, the question is always one of intention, that is, whether it was the intention to keep the prior mortgage alive as against the puisne mortgagee. As observed by their Lordships of the Privy Council in Gokuldas Gopaldas v. Puranmal Premsukh 10 C. 1085 : 1 I.A. 126 the first question is, is there express evidence of the intention and if there is no such evidence, what intention should be ascribed to the person who makes the payment? In this case it seems to us that, having regard to the circumstances, the intention clearly was, at the time when the sale in favour of Vilayati Begam was executed, that the prior mortgages in favour of Kadher Mal and Chet Ram should be extinguished by payment out of the consideration for the sale in the hands of the purchaser. The purchaser, as has been said above, undertook to discharge not only the debt due to Kadher Mal but also the debt due under the mortgage upon which the present suit is based. He paid Kadher mal but he did not pay Chet Ram and he kept in his own pocket the portion of the consideration which should have been appropriated to the discharge of the mortgage debt in favour of Chet Ram. Not having paid that debt, he seeks to hold up as a shield against the claim, made for the recovery of the debt which he was also bound to pay, the payment of the prior debt. We are of opinion that he cannot do so. It was clearly the intention at the time when the sale was effected that the prior mortgage in favour of Kadher Mal would be extinguished and not kept alive. Now what was the intention at the time when that mortgage was discharged? We think that the evidence of the intention 'of the parties, as afforded by the sale-deed of the 13th of July 1886, at the time of that sale, negatives the idea that at the time when the prior mortgage was discharged, it was intended to keep it alive for the benefit of the subsequent purchaser. This is further manifest from the fact that when the defendant-appellant filed his written statement, he did not assert that he had priority over the plaintiff by reason of his having discharged the earlier mortgage. This was clearly an afterthought. Under the circumstances, we are of opinion that the appellant cannot hold up as a shield the mortgage which he has paid off against the debt which he undertook to pay but which he did not discharge. In this view, the plea of the appellant is untenable and we disallow it though not on the ground set forth in the judgment of the Court below. We dismiss the appeal with costs including fees on the higher scale.