1. This is a first appeal from a decree of the second subordinate Judge of Gorakhpur delivered on 19th of July 1935, rather over five years ago. The suit was a mortgage suit and the circumstances are a trifle complicated. On 26th March 1913, Lala Batuk Sahai, who is defendant 1 to the suit, executed a mortgage of two one-anna shares in a certain property in the village of Madhopur in favour of one Sheikh Muhammad Husain, to secure a principal sum of Rs. 2000 and interest thereon. I do not know why the mortgage was taken in the name of Sheikh Muhammad Husain as the mortgagee, but it is admitted for the purpose of the present suit that the real mortgagee was one Maulvi Muhammad Mohsin Sahib, the brother of Muhammad Husain. The next event in order of date is that on 15th June 1914 the same mortgagor, Lala Batuk Sahai, executed a second mortgage of the same two one-anna shares in favour of the present appellant, Lala Himmat Sahai, who is defendant 4 to the suit. It covered all the sir and khudkasht lands which had been mortgaged under the mortgage of 1913. The next thing that happened was that on 14th May 1915 the mortgagor, Lala Batuk Sahai, sold to the mortgagee, Maulvi Muhammad Mohsin Sahib, one of the two one-anna shares which was subject to the mortgage of 1913. It is the effect of this transaction which constitutes the bone of contention in this suit and it is necessary, therefore, that I should refer to its contents a little carefully. The document is before me as Ex. 12 on p. 33 of the record. In form, it makes no reference at all to the mortgage of 1913 and on its face might be referring to an unencumbered property. It begins by setting put certain reasons why the mortgagor desired to raise money and it goes on to explain that he has for these reasons 'made a sale and permanent transfer of a one-anna share' in the zamindari in question to Sheikh Muhammad Mohsin in consideration of the payment of Rs. 1500 in cash by the purchaser to him, Rs. 400 of which was paid on or before the execution of the deed and a further Rs. 1100 at the time of its registration. He went on to say:
From this day I have ceased to have any concern with the share and land sold and the said vendee has become and shall continue to be the absolute and permanent owner in possession thereof. I, the executant, or my heirs, neither have nor shall have any concern with the ownership or possession of the property....
2. Finally, he acknowledges the receipt of the full amount of the consideration in cash. So much, therefore, for the sale of 1915 of one out of the two one-anna shares mortgaged by the mortgages of 1913 and 1914. In the year 1920 there were two further mortgages, one in favour of defendant 5, Sheikh Kariman, and the other one in favour of somebody else, which is now vested in Sheikh Kariman also. Those mortgages affected the remaining one-anna share only. Finally, on 22nd July 1925, came the further mortgage which is the one which has given rise directly to this suit. It is a simple mortgage by the same mortgagor, Lala Batuk Sahai, together with his son who this time is added as co-mortgagor. Nothing, however, turns upon that. It begins by reciting the mortgage of 26th March 1913 under which Rs. 2000 had been borrowed. I should perhaps have said at an earlier stage that it was a term of the 1913 mortgage that the principal money and interest secured there, by should not become payable for a period of three years. It goes on to recite that the principal and interest under the 1913 mortgage had become due, and it says:
As the period stipulated therein was for three years, which has expired, and the debt could not be paid as yet, and as repeated demands are being made on behalf of the creditor and I have got no money to pay and thereby redeem my share we, the executants, on our admission of the liability of the debt abovementioned, have made the creditor agreeable to change the document...
3. It then goes on to explain, in effect, that the principal and interest due on the 1913 mortgage amounted to Rs. 3300 and it proceeded, in the form of a fresh mortgage, to charge the remaining one-anna share with payment of that sum of Rs. 3300 together with a further sum of Rs. 40, which may, I think, be taken to represent the expenses of the transaction. The operative part of the deed actually says:
Accordingly both of us, the executants, have, of our free will and accord, changed the former document, and having added the present amount of debt therein, covenant that we shall pay up in full the amount of Rs. 3340 to Sheikh Mohammad Mohsin, son of Sheikh Mohammad Gada Husain, deceased, resident of Mohalla Nizampur, Gorakhpur, within the period of three years without any hesitation, that till the payment, the same rats of interest, i.e., 8 annas per cent, per mensem, shall be charged, and that in lieu of the principal amount and interest, our one anna zamindari share in the partitioned mahal No. 2, with all the rights situate in mauza Madhopur shall stand, as before, mortgaged and hypothecated.
4. Those were the materials upon which the suit was brought. The plaintiffs are four of the children of Maulvi Muhammad Mohsin Sahib who had died in the meantime. Defendants 17-23 inclusive are his remaining children and, between them, it is admitted that they are entitled to all his rights as mortgagee in the property mortgaged by the mortgage of 1925 and the mortgage of 1913, so far as the latter is still in existence and capable of taking effect. Defendant 1 is the original mortgagor under the 1913 mortgage and one of the two mortgagors under the 1925 mortgage, while defendant 2, Lala Adya Prasad, is the other of the two mortgagors under the 1925 mortgage. Defendant 3 is an infant child of defendant 2 who is said to have acquired an interest in the property. Defendant 4, who is the appellant in this case, is the mortgagee under the mortgage of 1914 and it is with his interest in the property that this appeal is directly concerned. Defendant 5 is the mortgagee under the mortgages of 1920 and 1925 and he stands or falls by the decision whatever it may be, in respect of defendant 4. There are other defendants but it is not necessary for me to deal with them in any way.
5. Now, to put the matter as simply as it can be put, the plaintiffs have brought this suit in the form of a suit to enforce the mortgage of 1925 by asking for a mortgage decree for sale of the one anna share which is comprised in it. They have been met by the contention of defendant 4, who is the appellant before me, first that his mortgage of 1914 has priority over the mortgage of 1925 and secondly that whether that is so or not, the effect of the sale of the one anna share under the transfer of 14th May 1915 was, not only to take that one anna share out of the security, but to extinguish half of the mortgage debt. The purpose of the plaintiffs in this suit is to obtain a mortgage decree against the one anna share comprised in the mortgage of 1925 in respect of the whole amount of the principal and interest which had been brought forward from the mortgage of 1913 of which the mortgage of 1925 was a renewal together with the additional Rs. 40. As I have explained, defendant 4 contends that as against him, it is impossible in the circumstances of this case, even assuming that the 1913 mortgage is still on foot in the sense that it can serve as a protection against his mortgage of 1914, for the mortgagee to contend that the whole of the mortgage money and interest secured by the 1913 mortgage is still outstanding. On the contrary, he says, the effect of the sale in 1915 was to extinguish so much of it as was proportionate to the value of the share sold and that, upon any footing, there can only now' remain due, and there can only be a preliminary mortgage decree in respect of that proportionate sum. The two principal issues therefore in this appeal are first whether the mortgage of 1913 can be deemed to have been kept alive at all so as to serve the present plaintiffs as a protection from the appellant's mortgage of 1914 and secondly whether, even if it can, it is open to the plaintiffs to claim a mortgage decree in respect of the whole of the outstanding amount of principal and interest secured by the 1925 mortgage.
6. At that point I propose to refer to the plaint. Now it must be admitted at once that, so far as the actual particulars of the mortgage contained in para. (2) are concerned, the plaint is only founded upon the mortgage of 1925 and, so far as the actual relief is concerned, I think that in form it must be taken actually to ask only for relief under the 1925 mortgage. The plaint begins by stating that the plaintiffs and defendants 17-23 inclusive are the mortgagees of the property and by para. (2) it sets out the relevant particulars of the 1925 mortgage expressing the mortgaged property to be a one anna share comprised therein. The actual amount of the principal and interest alleged to be outstanding is the sum of Rs. 5250. Para. (3.) deals with those of the defendants who are said to be 'subsequent transferees' which includes the appellant in this appeal. Para. (4) is however important and I propose to set it out in full:
4. First of all, under a hypothecation deed, dated 26th March 1913, defendant 1 borrowed Rs. 2000 and mortgaged his 2 anna share in mauza Madhopur. Out of the 2 anna share mortgaged, he sold, under a sale deed dated 14th May 1915, his one anna share for Rs. 1500 in cash, to the father of the plaintiffs. Only a one anna share remained mortgaged under the former bond, which having been renewed and the mortgage debt due under it having been kept alive defendants 1 and 2 executed a hypothecation bond, dated 22nd July 1925, sued on in favour of the father of the plaintiffs and defendants 17 to 23. Accordingly the entire burden of the former debt has, according to law, fallen on this one anna share, mentioned in the bond, dated 22nd July 1925. The plaintiffs and defendants 17 to 23 are competent to realize their amount of debt from this one anna share. The period stipulated in the bond, sued on, was three years which has elapsed. Inspite of repeated demands, defendants 1 and 2 or any other defendant has not paid (it) till now, hence this suit.
7. Now that quite plainly pleads not only the existence of the 1913 mortgage, but also that the 1925 mortgage was a renewal of it and that it was the intention of the parties that the 1913 mortgage should be kept alive. It is, I think, important to realise that, because of the suggestion which has been made and with which I shall have to deal in due course that, inasmuch as the plaintiff actually only asks for relief under the 1925 mortgage, he cannot be heard in any way to set up the 1913 mortgage and to claim relief which, involves, in substance, treating that mortgage as still alive. I point out at this stage that whatever the form of the plaint may be and in whatever form the relief has been asked for, para. (4) in substance and in fact does plead and does rely upon the continued existence of the 1913 mortgage.
8. Those are the facts, and I propose first to deal with the appellant's contention that upon any footing only a proportion of the mortgage money secured by the mortgage of 1913, and now incorporated in the mortgage of 1925, can be deemed to be outstanding because of the sale in 1915. For this purpose I am for the moment assuming that the 1913 mortgage was kept alive. To put it shortly, what the appellant says is that, when the one anna share was purchased by the mortgagee on 14th May 1915 for Rs. 1500 in cash, what the mortgagee was purchasing was the equity of redemption in that one anna share and that, accordingly, there was, not only a merger of the mortgage in the security in respect of that share, but that there was an extinguishment of a pro rata portion of the mortgage debt. To put that in other words, lie says that the consideration for the purchase of the unencumbered one anna share was not only the sum of Rs. 1500 in cash but also the extinguishment of a portion of the principal and interest secured on the mortgage. I may say at this stage that it Is common ground that the whole of that Rs. 1500 was paid in cash.
9. There have been a number of authorities which have dealt with this and similar questions. I do not propose to refer to many of them but there are a few with which I must deal and the first of them is the Full Bench case in Bisheshwar Dayal v. Ram Sarup (1900) 22 All. 284. I do not myself think that this case has' any particular relevance to the actual question before me. In this case there was a mortgage of the year 1885 in favour of the plaintiffs or the plaintiffs' predecessor-in-interest to secure a sum of Rs. 1000. In 1893 a decree-holder who had a decree against the mortgagor put up the property for sale in execution and one-half of it was sold, being purchased by the plaintiffs, who were the mortgagees, for Rs. 1500. Now in that case it was, as I read this report, admitted by the mortgagees that their mortgage debt was extinguished to the extent of one-half. The real point in the case was that it was said against them that their mortgage was extinguished, not only to the extent of one-half but to the extent of the whole, upon the ground, as I think, that the half which they had actually purchased was in fact worth a sum equal to the whole of the principal and interest due upon their mortgage and therefore they must be taken to have received the whole of it. The judgment in this case is concerned in pointing out the fallacy of that. What it establishes is that, in assessing what part of the mortgage debt must be deemed to be satisfied you must have regard only to the value of the proportion of the mortgaged property sold to the value of the whole of the mortgaged property and not to the actual circumstance that what the mortgagee purchased was or may be, in fact sufficient to satisfy the whole or some particular part of what was due to him under the mortgage. I have dealt with this case because it has been freely relied upon in argument, but I do not myself think that it really deals with the same point as that with which I am concerned in this appeal. On the contrary, it appears to admit, upon the facts of the case, the very point which is in issue in this case. Its only relevance to this case is that it does appear to recognise that the normal rule is that where a mortgagee is found to have purchased part of the mortgaged property and thus
the rights of the mortgagee and the mortgagor, as regards the portion purchased, become vested in the same person
the result is
that a part of the mortgage debt is wiped out by-reason of the fusion of interests, and the balance only is recoverable from the remainder of the mortgaged property : vide p. 290.
10. A case, however, which illustrates much better the point to be determined here is Jasodha Kumar v. Kali Kumar : AIR1930Cal619 . In that case the defendant-appellant had mortgaged five properties in favour of the plaintiffs; subsequently he sold one of those properties to the plaintiff-mortgagee for Rs. 200. On the same day, the plaintiff-mortgagee conveyed to the mortgagor another piece of land belonging to him for the same sum of Rs. 200. The plaintiff-mortgagee then brought a suit against the defendant to recover the entire mortgage-debt out of the remaining four pieces of property. In other words, he contended that no part of the mortgage debt had been extinguished by purchase by him of the piece of land for Rs. 200. The defendant, on the other hand, contended that the mortgagee was bound to allow him a proportionate reduction, the proportion being such an amount of the mortgage debt as was equal to the proportion in value of the land sold to the whole of the mortgaged property. The learned Judges of the Calcutta High Court who heard the appeal, then set out the principle in these words: they say:
Now the principle of law which should govern a case like the present is firmly established by innumerable authorities. It is not necessary to refer to all of them except to the leading cases on the point. The point was carefully considered in the Full Bench decision of the Allahabad High Court in Bisheshwar Dayal v. Ram Sarup (1900) 22 All. 284 which followed the Full Bench decision of the Bombay High Court in Lakhmidas Ramdas v. Jamnadas Shankar Lal ('98) 22 Bom. 304 (F.B.). In that case the mortgagee had purchased one of the mortgaged properties in an auction sale in execution of a decree. It was contended there on behalf of the mortgagor that the mortgagee should not throw the entire burden of the mortgage debt upon the remaining property but was bound to allow proportionate reduction from the mortgage-debt. It was held that if the mortgagee purchased the equity of redemption ha must allow proportionate reduction of the value of the property purchased by him; but where the circumstances under which the purchase was made show that it was purchased free from all encumbrances, the plaintiff can enforce his entire security against the remaining property.... The following principles seem to have been laid down in that case on a consideration of all the authorities on the subject: (1) that there is no distinction in principle between a private sale and an execution sale; (2) the real distinction as to the application of the law exists between a purchase of the equity of redemption and a purchase of the entire interest in the property; (3) if the circumstances show that the purchase by the mortgagee was a purchase of the entire interest free from all encumbrances, the mortgage debt will not be extinguished to the extent of the original charge borne by the property purchased.
11. The learned Judges then went on to consider and, I think, they consider it as a question of fact whether in that particular case what the mortgagee had purchased was merely the equity of redemption or the whole of the property, and they came to the conclusion that what he had purchased was the whole property and not merely the equity of redemption. They based that conclusion upon the peculiar nature of the particular transaction in that case, which was really an exchange. They found that the mortgagor by his conduct had impliedly agreed that he was receiving the full value of the property and that no portion of the mortgage debt should be extinguished.
12. Again, in krishnachandra Bhoumik v. pabna Model Co. Ltd. : AIR1932Cal319 two Judges of that Court affirmed the same principle. It appears to me that the real question, which one has to consider, can best be expressed in the form of an inquiry whether, for the purpose of the purchase in question, the mortgagee-purchaser must, in the circumstance of the particular transaction be taken to have had resort to any part of the mortgage money as part of the consideration for the purchase. I think that that is what is really meant when the distinction between purchasing an equity of redemption and purchasing the whole of the mortgaged property is mentioned. The equity of redemption - assuming that term can be properly used in India - represents of course all that the mortgagor has left in him and is therefore all that he has to sell and therefore it is at the first sight, I think, curious to find a suggestion that the mortgagor may be selling something more than the equity of redemption. What, I think, has to be looked at is whether, in selling the equity of redemption and thereby vesting in the mortgagee the whole unencumbered interest in the property, the calculation of the purchase price takes into account the value of that interest which the mortgagee already has vested in him, namely the mortgaged interest. That is why, I think, it really comes down, as the Calcutta High Court has in effect treated it, into a question of fact. The question is what was bought. Did the mortgagee make an allowance for the mortgage money, or part of it, which was due to him, in calculating the consideration for the sale? And, for the purpose of determining that question, it is, I think, relevant to look at all the circumstances and facts of the case.
13. It must be conceded, I think, that a mortgagee, who purchases part of the mortgaged property, does so in most cases upon the footing that he is purchasing the equity of redemption only. He already has an interest in the property by virtue of his mortgage and all he lacks is the equity of redemption. The common case is therefore, that he purchases from his mortgagor only those surplus rights which still remain with the mortgagor, that is to say only the right to redeem. He thereby extinguishes the mortgage because the mortgage interest and the equity of redemption coalesce in his own hands. That is what happens in a simple case. And in the vast majority of cases no further question arises because the whole mortgage is put an end to. It is only in a case in which part only of the mortgaged property is purchased that this difficult question arises, as to what has happened to the remainder of the mortgaged money. If a mortgagee after such a transfer as there has been in this case constituting a purchase by him of a part only of the mortgaged property, comes to the Court and claims to enforce his entire mortgage against the remaining portion of the property in respect of the whole unabated mortgage debt, I think that the burden must lie heavily upon him of, showing that special circumstances existed, or that there was some form of special bargain in the particular transaction between him and the mortgagor, from which it must be concluded that no part of the mortgage debt was to be extinguished. That is what was done in the case in the Calcutta High Court to which I have referred. Now, turning to the evidence in this case, I find that it is very scanty and that there is not a syllable in it from first to last to show, or even to attempt to show, that the purchase of 1915 was anything but an ordinary purchase of an equity of redemption - an ordinary getting in by the mortgagee from his mortgagor of those surplus rights which remained with the mortgagor in consideration partly of a sum paid to him, representing the value of those rights, and partly of a pro rata extinguishment of the mortgage debt. If I am right in thinking that the onus lay upon the plaintiff to establish that the whole of his debt remained outstanding then, in my view, he has signally failed to do so. The learned subordinate Judge of Gorakhpur, however, appears to have taken an opposite view. He says:
Where the mortgagee purchases the portion of the mortgaged property the determination of the question whether the whole of the mortgage debt is chargeable on the remaining property mortgaged depends on whether the mortgagee purchased only the equity of redemption or the entire interest of the mortgagor and in the latter case no portion of the mortgaged debt is extinguished. The sale deed in favour of the plaintiffs' father does not say that the property was being sold subject to any encumbrance. A two anna share had been mortgaged in 1913 for Rs. 2000. In 1915 half of it was being sold for Rs. 1500 paid in cash. It has already been mentioned that no portion of the consideration went to satisfy any portion of the mortgage money of 1913. The probabilities are that the entire interest of the mortgagor and not only the equity of redemption was being purchased.
14. I have some difficulty in accepting that conclusion as right. It is perfectly true that the sale deed on the face of it does not refer to the mortgage at all, but the learned Judge appears to base his calculation upon the assumption that, if a two anna share was mortgaged in 1913 to secure Rs. 2000 then Rs. 1500, the amount actually paid in cash in this case, must be taken to represent not merely the value of the surplus rights of the mortgagor, but the value of the whole unencumbered interest in the one anna share of the property. He seems to assume that the Rs. 2000 secured upon the two anna shares in 1913 must necessarily have represented its full value for security purposes. There is nothing to indicate, that that was so. The property might well have been worth Rupees 5000 or even Rs. 10,000 and indeed we find that it was of sufficient value to support a considerable second mortgage a year later. And, even so, the learned Judge only treats it as a 'probability.' Having regard to the fact that, as I think the burden lay upon the mortgagee to establish that the transaction was not the normal transaction of purchasing the entirety of the property in the sense that I have explained, I do not myself think that this conclusion of the learned Judge was wholly justified by the evidence or by the facts of this case. For these reasons, I have come to the conclusion, that upon no footing is it open to the plaintiffs, in this suit, to charge the remaining one anna share with any part of the property secured upon the mortgage of 1913 and the interest attributable to that property in excess of one-half. I have, for this purpose, assumed that the value of the one anna share sold in 1915 was equal to the value of the one anna share which was not sold. It has not, up to this point, been suggested otherwise in this suit, and I do not propose at this stage to re-open that question.
15. There is one other reason why I think that the conclusion I have arrived at is probably the right one in the circumstances of this particular case. The appellant, in addition to his contention with which I have just dealt, goes on to point out that, if it is true that the effect of the 1915 sale was to throw the whole of the mortgage money on to the remaining one anna share, it puts a grievous additional burden on to that share, which is unfair to him as the mortgagee of it. He says, quite rightly that he took his mortgage in 1914, supposing that, as between themselves, both shares were rateably liable to bear the first mortgage, that is, of course as between the two shares themselves and not as between the mortgagee and the mortgagor. That was undoubtedly true, but he now finds, that by the voluntary act of the mortgagor - the act of selling one share - the other share, the one of which he is the second mortgagee, has become burdened to twice the extent that it was burdened before. And he points out that that cannot possibly be done to his detriment as a second mortgagee. I am considerably impressed with that argument and it confirms me in the view, I had already formed, that in the circumstances of this case, at any rate, the plaintiffs cannot be assumed to have done that or be allowed to throw upon the remaining one anna share in priority to the appellant anything more than that proportion of the principal and interest secured which I have already indicated.
16. I now come to the question whether the mortgage of 1913 was kept alive at all. I do not propose to deal with this at the same length because, in my judgment, the question is quite simple. I need not recapitulate the well-known principles, which are derived from English equity and from English cases, relating to the keeping alive of securities in certain circumstances, because those principles have been clearly recognized as part of the law of India by the Judicial Committee of the Privy Council. I need not do more than refer to the well-known case in Gokaldas gopaldas v. Puranmal Premsukhdas ('84) 10 Cal. 1035, in which their Lordships affirmed, or re-affirmed, that those principles are applicable in India as measures of equity, justice and good conscience. There is the well-known passage from the judgment in this case:
The obvious question to ask in the interests of justice, equity and good conscience, is, what was the intention of the party paying off the charge? He had a right to extinguish it and a right to keep it alive. What was his intention? If there is no express evidence of it, what intention should be ascribed to him? The ordinary rule is that a man having a right to act in either of two ways, shall be assumed to have acted according to his interest.
17. I need not, I think, discuss the numerous authorities in which the same principle has been considered, and applied, in India since then. Nor need I discuss, the questions which have been debated about the 're-birth' of an earlier security as part of a later transaction. I do not myself like these coined expressions. They appear to me misleading. The present case is a very simple one. The mortgagee in 1925 took a mortgage which was an obvious renewal - and, indeed, in terms was a renewal - of an old one. The only addition was of a trifling sum which obviously represented the costs of the transaction. There is no actual evidence of what the intention was, and I have therefore to consider what intention must be ascribed to him. It was to his obvious benefit that the 1913 mortgage should be kept alive, because it was the only protection he would have against any intermediate encumbrances of which possibly he had no notice.
18. I feel no doubt that the principle in Adams v. Angell (1877) 5 Ch. D. 634, which has been affirmed as part of the law of India in the case in the Privy Council to which I have referred, is applicable here, and that the 1913 mortgage remained on foot as a pro tanto protection to the mortgagee of 1925 against any intervening encumbrances. Then two things are said against that. It is said first, that, even if that is so, the mortgage of 1913 can only be effective if, and to the extent that, relief under it would not be barred by any statute of limitation, assuming a suit were brought upon it. The answer to that is, I think, that in this case no question under the Limitation Act arises in view, as the learned Judge has found, of the very obvious acknowledgment constituted by the deed of 1925 itself. The other point put on the appellant's behalf in this connexion is that there is a difference between the 1925 security and the 1913 security, which precludes the application of the doctrine of Adams v. Angell (1877) 5 Ch. D. 634. It is pointed out that, whereas the 1913 mortgage embraced two one-anna shares, the 1925 mortgage embraces only one. I think the short answer to that is this. At the time when the 1925 mortgage came into existence, the 1913; mortgage did, in fact, embrace only one one-anna share, because in 1915 the other one-anna share had been sold and had disappeared. Even, apart from that however I should not be able to agree that it is impossible to keep alive a previous mortgage upon taking a subsequent mortgage covering only' part of the same security.
19. There is, I think, only one more matter with which I have to deal before disposing of the appeal altogether. It relates to the form of the suit. As I have been at pains to point out in an earlier part of this judgment, the relief asked for by the plaint is, in form, I think, relief by way of enforcement of the 1925 mortgage only. And, I think that the decree in the suit is actually based upon that footing. Now, in this case what actually happened was that the mortgagee came to the Court to enforce, it is true, his mortgage of 1925. At the same time, he did plead, and plainly pleaded, that he was still entitled to rely upon the mortgage of 1913. He was then met by the appellant with the mortgage of 1914 for which he (the appellant) claimed priority. Thereupon, the plaintiffs had resort to the 1913 mortgage, as they had foreshadowed in their plaint, as a shield or defence against the appellant's mortgage of 1914. In other words, the plaintiffs set up the 1913 mortgage as being still alive. Technically, it seems to me that what the plaintiffs are really enforcing in this suit is not the 1925 mortgage alone, but primarily the 1913 mortgage, which is still in existence, and, only in a secondary sense, the 1925 mortgage to the extent to which their claim is not covered by the relief under the 1913 mortgage. I think that, technically speaking, the plaint should have claimed relief upon the footing of both of the 1913 mortgage and the 1925 mortgage.
20. This, I think, is well illustrated by a case again in the Calcutta High Court, Gopal Chunder v. Herembo ('89) 16 Cal. 523. That was a comparatively simple case in which a mortgagor had mortgaged property to a mortgagee. He then mortgaged the same property to another mortgagee, and finally he mortgaged it again to the former mortgagee, who, eventually, brought a mortgage suit. There was therefore exactly the same position there as there is in the suit before me. But the difference is that he based his relief, not only upon the latter of his two mortgages, but upon the former one as well. That, I think, was undoubtedly right, because, as I have pointed out, what he was really enforcing was primarily the former of his two mortgages. It will be seen from the form of the decree that was passed in that case, that what was actually enforced was the former mortgage together with the latter, to the extent to which it was necessary. Now, it is said in this case that for these reasons the plaint is defective, and that the plaintiffs ought not to have any relief, or, at any rate, that they ought to have no more relief than they can get strictly upon the 1925 mortgage. That, in my judgment, is taking altogether too strict a view. As I have more than once pointed out, the plaintiff's, in their plaint, have actually pleaded every fact necessary to enable them to succeed in the suit. Their only mistake, if they have made a mistake, is that, in framing the actual relief they asked for, they have incorrectly stated it. The appellant has in no way been misled by this, and it would amount to a denial of justice if I did not give to the plaintiffs the relief to which they are actually entitled and to which, in my view, the form of their plaint entitles them, in all but the actual words in which they have asked for the relief.
21. In the result therefore I must allow this appeal and set aside the decree of the Court below. A new decree will have to be drawn up. I shall first declare that, by virtue of the sale effected by the instrument dated 14th May 1915, which is Ex. 12 in the proceedings, the plaintiffs and defendants 17-23 respectively as mortgagees are only entitled to enforce the security constituted by the mortgages dated 26th March 1913 and 22nd July 1925, to the extent claimed in the plaint, after giving credit as from 14th May 1915 for the principal sum of Rs. 1000, being half the principal amount secured on the mortgage, dated 26th March 1913, together with interest proportionate to that principal sum. And next, I shall declare that the plaintiffs are subject as aforesaid entitled to a mortgage decree or the balance of the principal and interest claimed by them in respect of the said mortgages dated 26th March 1913 and 22nd July 1925 respectively in priority to all subsequent encumbrances created after 22nd July 1925 and upon the footing that the former of the said two mortgages was kept alive and remained on foot, notwithstanding the execution of the latter of the two said mortgages. The remainder of the decree-will be a preliminary mortgage decree, and I indicate that the proper form of the decree in this case is the one which is outlined in Gopal Chunder v. Herembo ('89) 16 Cal. 523 at pp. 529 and 530. I, accordingly, allow this appeal, set aside the existing, decree, and direct a new decree to be drawn up in this Court according to the foregoing, directions. The result of this appeal has been that the appellant has partially succeeded and has partially failed. I think the proper result is that there shall be no order as to-costs either in the Court below or here. If there is any difficulty in drawing up the-decree, the case can be restored to my list for the purpose of settling it.