1. The appellant, Mangal Sen, was defendant 17 in the suit, which was for the enforcement of a mortgage of 30th August 1922 executed by three brothers, Chandu Lal, Nandan Lal and Bansi Lal, in favour of the plaintiff-respondent. The appellant was impleaded as a defendant on the allegation that he was a subsequent purchaser of a portion of the mortgaged property. The appellant's contention was that he had, after purchasing on 20th April 1933 a portion of the mortgaged property, paid off a sum of Rs. 4180 to Joti Prasad who held a prior mortgage of 25th August 1921 executed by Bansi Lal alone. The appellant asserted in his written statement in para. 1 of the 'further pleas' that the plaintiff could not get the property purchased by the appellant sold in enforcement of his mortgage. In para. 2 he alleged that he was not a subsequent purchaser, nor was the property purchased by him liable to be sold for the satisfaction of the amount due to the plaintiff. In para. 3 he stated that, even if the plaintiff had a right to get the property sold, he could not be allowed to do so without payment of a sum of Rs. 4180 and interest thereon to the appellant. In para. 5 it was averred that the property purchased by the appellant was not liable to be sold at the instance of the plaintiff and that the appellant had been improperly impleaded as a defendant. The plaintiff filed a replication and asserted that Mangal Sen and Joti Prasad were brothers and that Mangal Sen had not paid any money to Joti Prasad.
2. It was also pleaded that Mangal Sen could not acquire any right of subrogation by reason of the partial redemption set up by him. The Court below held that Mangal Sen had proved that he had paid the sum of Rs. 4180 to Joti Prasad in discharge of a portion of the amount due to Joti Prasad, but that such partial redemption could not entitle Mangal Sen to the right of subrogation in view of the provision contained in para. 4 of Section 92, T.P. Act. It accordingly rejected the claim put forward by Mangal Sen. In this appeal the relief sought by the appellant is that this Court may declare that in respect of the property purchased by him the appellant was a prior mortgagee to the extent of Rs. 4180. It is clear from the written statement and from the judgment of the learned Civil Judge that no pleading precisely similar to the relief now sought in appeal was really put forward in the Court below and, strictly speaking, the appellant cannot complain against the Court below for not having considered a plea which he never put forward. But, apart from that, it seems to me that the decision of the Court below is right. The facts bearing on this question are these. One of the items of property mortgaged to Joti Prasad under the deed of 25th August 1921, executed in his favour by Bansi Lal, was 'one share out of six shares' situated in a village called Pairi. In the mortgage of 30th August 1922, made by Bansi Lal, Nandan Lal and Chandu Lal in favour of the plaintiff-respondent, one of the items mortgaged was 'three out of six shares' in that village Pairi. In execution of a simple money decree held by certain persons against the sons of Bansi Lal, who had died by this time, a portion of the property mortgaged to Joti Prasad was put up to sale and was purchased by the appellant on 20th April 1933.
3. The appellant alleges that on 20th August 1933 he paid a sum of Rs. 4180 to his brother Joti Prasad, and obtained from him a receipt which he has produced. His contention is that Joti Prasad released the property purchased by the appellant from his security and that the appellant took possession of that property free of the encumbrance of Joti Prasad. He claims that as the result of this alleged payment to Joti Prasad he is entitled to be subrogated to the rights of Joti Prasad and to be treated as a prior mortgagee to the extent of Rs. 4180. It is common ground that this payment of Rs. 4180, even if it was made by Mangal Sen to Joti Prasad, did not redeem the mortgage of 25th August 1921 in full. Mr. Panna Lal has relied on the case in Udit Narain Misir v. Ashrafi Lal (1916) 3 AIR All 81. That case was decided long before the Transfer of Property Act was amended and Section 92 was inserted in the Act. The learned Judges who decided that case did not agree with the view taken by the Calcutta High Court in Gurdeo Singh v. Chandrika Singh (1909) 36 Cal 198. It seems to me that the Legislature, when amending the Transfer of Property Act in 1929, deliberately accepted the view of the Calcutta High Court in Gurdeo Singh v. Chandrika Singh (1909) 36 Cal 198 and did not accept the view expressed by this Court in Udit Narain Misir v. Ashrafi Lal (1916) 3 AIR All 81. The appellant's purchase and his alleged payment to Joti Prasad are of the year 1933, i.e., at a time when the Transfer of Property Act had Seen amended. Mr. Panna Lal argues however that the law as it stood on 25th August 1921, when the mortgage deed in favour of Joti Prasad was executed, would govern the rights of his client. This contention is not, in my opinion, correct. It has been held in the Full Bench case in Hira Singh v. Jai Singh : AIR1937All588 that Section 92, T.P. Act, has retrospective effect.
4. Now, Section 92 of the Act is as follows:
Any of the persons referred to in Section 91 (other than the mortgagor) and any co-mortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee.
The right conferred by this Section is called the right of subrogation, and a person acquiring the same is said to be subrogated to the rights of the mortgagee whose mortgage he redeems.
A person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such persons shall be subrogated.
Nothing in this Section shall be deemed to confer a right of subrogation on any person unless the mortgage in respect of which the right is claimed has been redeemed in full.
5. It seems to me that the language of the statute is perfectly plain and that on that language the appellant is not entitled to claim the right of subrogation, even if he made the alleged payment to his brother, Joti Prasad, which, in my opinion, is very doubtful. Mr. Panna Lal's argument is that when the appellant paid the sum of Rs. 4180 to Joti Prasad and persuaded him to release the property purchased by the appellant, the integrity of Joti Prasad's mortgage was broken up and that, instead of one mortgage in favour of Joti Prasad, several mortgages came into existence, each existing over different items of the property originally mortgaged. He contends that in this view the alleged payment by the appellant to Joti Prasad of the amount which was agreed upon between him and Joti Prasad to be the proportionate amount due from the property purchased by him amounted to a redemption in full of the mortgage over the property purchased by the appellant which according to Mr. Panna Lal, came into existence at the time of the alleged payment by the appellant to Joti Prasad. In the first place, as I have already indicated, I am not satisfied that his story that he paid any money to his brother, Joti Prasad, is true. But even if he did make the payment as alleged, in my judgment, the contention of Mr. Panna Lal is not sound. If his argument is accepted, any purchaser of a portion of the mortgaged property or any co-mortgagor can, by colluding with the mortgagee, frustrate the object of the Legislature in enacting para. 4 of Section 92. It is noteworthy that paragraph does not make any exception in favour of a person who has been allowed by the mortgagee to redeem the mortgage in part. It seems to me that if it had been the intention of the Legislature to make any such exception it would have said so. For the reasons given above, I have come to the conclusion that the decision of the Court below is correct.
6. I agree with what my learned brother has stated and I would like to add a few words. The claim of the appellant is based on the receipt printed on page 47, Ex. F-3. This receipt is dated 20th August 1933 and is a receipt by Joti Prasad, son of Ude Ram to Mangal Sen, the son, of the same Ude Ram as the particulars which are given are similar in each case. It is admitted therefore that the receipt is by one brother to another. Mangal Sen gave evidence on p. 19 but he did not state that he had ever separated from his brother Joti Prasad. Five days after the date which this receipt bears, that is, on 25th August 1933, Joti Prasad brought a suit of which the plaint is on p. 48. This suit was for the enforcement of the simple mortgage dated 25th August 1921. The principle amount advanced on that mortgage was Rs. 1852. Para. 10 set out that Mangal Sen had paid the rateable amount for Khewat No. 1 in Mohalla Bansi Lal in mauza Pairi which he had purchased in auction sale. Para. 11 set out that the total due of principal and interest was Rs. 13,480 but the claim was only brought for Rs. 5250. The plaintiff deducted not only the amount of Rs. 4180 alleged to have been received from his brother Mangal Sen but he also remitted a further amount of Rs. 4050. As the plaintiff evidently considered that it was not possible to realize more than Rs. 5250 from the remaining property it is clear that he was not giving up anything by this transaction with his brother. It was a case in which the family could not realize much from the remaining property. Therefore it was obviously no loss to the plaintiff Joti Prasad to execute a nominal receipt in favour of his brother.
7. Now, when the appellant Mangal Sen filed his written statement on p. 12 he evidently had no books of account or memorandum to show that he had paid any amount to his brother Joti Prasad. He therefore put down the amount of Rs. 5000 as the amount which he paid. This written statement was dated 3rd October 1934. Subsequently when the record of the suit by Joti Prasad, Suit No. 51 of 1933 was examined it was found that para. 11 of the plaint stated that Rs. 4180 had been received from Mangal Sen by Joti Prasad. The receipt Ex. F-3 was then produced in Court on 22nd November 1934, and the written statement was amended by an order of 14th November 1934, by which the amount of Rs. 5000 was corrected to Rs. 4180 to make it agree with the plaint of Joti Prasad and the receipt then produced. It is also to be noted that the plaint of Joti Prasad did not allege that any receipt had been given. Such a receipt as Ex. F-3 could be manufactured at any time. Joti Prasad has not been produced as a witness to support the statement of Mangal Sen, nor have any books of account been produced to show that there was any such payment. In these circumstances it appears to me that the mere statement of Mangal Sen and the receipt signed by Joti Prasad are not sufficient to prove that there was any payment of Rs. 4000. I may further note that what Mangal Sen said in evidence was that Rs. 4000 was paid whereas the receipt says Rs. 4180. The plaintiff had pleaded in replication that this transaction was an entirely fictitious transaction. For these reasons I think that no ground for a claim for subrogation does arise as there was in my opinion no payment by Mangal Sen, appellant, to his brother.