1. This appeal arises under the following circumstances. The suit is one for the redemption of a mortgage of the 6th of May 1879. This mortgage was executed by two persons Ram Lakhan and Ram Baran in favour of Bharosa Rai, Ganga Rai, and Mahpat Rai. It contained the following provision, namely, that 'When in the month of Jeth in any year the mortgagors paid the principal with Government revenue paid by the mortgagees, the property will be redeemed.' Portion of the property in this mortgage was subsequently sold to the plaintiffs by Ram Lakhan and by the heirs of Ram Baran who was then deceased. Having so purchased portion of the property, it is clear that the plaintiffs would, under ordinary circumstances, be entitled to redeem the mortgage. Their claim, however, to redeem was resisted by the appellants on the ground that a subsequent mortgage of the 24th of October, 1883, was executed whereby the mortgagor undertook, as it is alleged, not to redeem the first mortgage until the mortgagor had first redeemed the second mortgage. This second mortgage was executed by Ram Lakhan Rai alone and not by Ram Baran or his heirs. It also Comprised different property from the property comprised in the mortgage of the 6th of May 1879. On turning to this mortgage, we find the following provision upon which reliance has been placed by the learned Counsel for the appellants, namely, 'First I (the mortgagor) shall pay this money, and then the money borrowed on the security of fields,' the fields representing the property comprised in the first mortgage. The contention is that in view of the provisions of Section 61 of the Transfer of Property Act, the plaintiffs, who are purchasers of a portion of the property comprised in the first mortgage, which was not included in the second mortgage, are not entitled to redeem the mortgage of the 6th of May 1879 until they first redeem the later mortgage, a mortgage with which they have no concern. The Court of first instance acceded to this contention and dismissed the plaintiffs' suit.
2. On appeal the learned District Judge reversed the decision of the Court below holding that upon a true construction of the agreement in the later mortgage, it did not amount to a consolidation of the two mortgages but simply fixed the time when Ram Lakhan would pay the amount of the second mortgage.
3. We entirely agree with the lower appellate Court upon the view so adopted. By the second mortgage no charge whatever was created upon the property comprised in the first mortgage. This second mortgage was executed by Ram Lakhan alone and by the undertaking which Ram Lakhan gave, he could not in any way prejudice the rights of Ram Baran or his heirs. Moreover, the agreement is not an agreement whereby the mortgagor deprived himself, or purported to deprive himself of the right to redeem the first mortgage. It is simply an agreement on his part to pay the money secured by the second mortgage first and then the money secured by the first mortgage. This is nothing more than a provision fixing the time for payment, There is no agreement in the second mortgage on the part of the mortgagor that he would not be entitled to redeem the first mortgage without paying the money doe under the second mortgage. Mr. Agarwala strenuously relies upon the language of Section 61 of the Transfer of Property Act but we think that he puts a forced construction upon that section. If we turn to the illustration to the section, we get a clue as to the true meaning of it. The illustration is as follows: 'A, the owner of farms Z and Y, mortgages Z to B for Rs. 1,000. A afterwards mortgages Y to B for Rs. 1,000, making no stipulation as to any additional charge on Z. A may institute a suit for the redemption of the mortgage on Z alone.' Here Ram Lakhan and Ram Baran executed a mortgage of one property and subsequently one of the mortgagors, Ram Lakhan alone, mortgaged separate property making no stipulation as to any additional charge On the first property. This illustration discloses the intention of the legislature in enacting Section 61 and exactly meets the present case. Therefore, this ground of appeal is without force.
4. It is further contended that under the first mortgage the mortgagors agreed upon redemption to pay the principal amount of the mortgage debt together with any Government revenue which might have been paid by the mortgagees and that the sum deposit-in Court under the provisions of the Transfer of Property Act fell short of the amount due under the mortgage by a sum of Rs. 25 which it has been found the mortgagees paid on account of revenue. It is contended that in view of this fact the mortgagors ought to be deprived of the costs of the litigation. We are unable to accede to this contention. The sum is a very small sum and the mortgagors had no knowledge that the mortgagees had paid this amount. In fact in their statement of claim they alleged that no revenue was paid by the mortgagees. On the other hand, the mortgagees asserted that they had paid a sum of Rs. 246 in respect of revenue whereas, as a matter of fact, they only paid Rs. 25. In view of this, we do not think that the order passed by the Court below in the matter of costs was unreasonable. We accordingly dismiss the appeal with costs including fees in this Court on the higher scale.