1. The appellant is the owner of one item of mortgage property and in purchasing that property he discharged a prior mortgage on that one item and also two other items of property, one of which is the subject-matter of the suit mortgage along with the property purchased. The question is whether the appellant is entitled to subrogation in respect of that prior mortgage. Both the Lower Courts have found that he is not so entitled.
2. Objection is taken to the finding of the Lower Appellate Court on the ground that the reasons given by the learned District Judge are not relevant in coming to the conclusion as to the intention of the appellant when he discharged the prior mortgage. The District Judge has rightly kept in mind the fact that in such cases the presumption is that the person paying off a mortgage intends to keep it alive if it is for his benefit to do so a principle which is laid down in Gokaldas Gopaldas v. Puranmal Premsukhdas ILR (1884) C 1035 Starting with that presumption the Judge has considered the evidence and has come to the conclusion that in the circumstances of the case that presumption is rebutted.
3. In appeal it is contended that he has rather addressed himself to the intention of the original mortgagor than to the intention of the appellant. I do not think that this is clearly established. There are circumstances in the case which undoubtedly weaken the presumption that he intended to keep it alive. The original mortgage was in respect of three items of property and the appellant has only purchased one of these items. The mortgage bore very heavy interest and there can be no doubt that the mortgagors intended that it should be put an end to, and there is the circumstance that this one property was sold to discharge a mortgage on three items. There is also an endorsement on the original mortgage deed that the money was actually paid to the mortgagee and the document was cancelled. The contention in appeal really seems to be that according to the authorities the presumption of law as to intention is really irrebuttable. That that is not so is clear from the decision of the Privy Council in Mohesh Lal v. Mohanl Bawan Das ILR (1883) C 961 and also two cases of this Court Kalagayya v. Yanadamma (1910) 21 MLJ 180 and Govindaswami Tevan v. Doraiswami Pillai ILR (1910) M 119. Therefore the question of intention is a question of fact. It has been laid down in several cases that certain acts, or certain facts, are not sufficient to rebut the presumption, but when we consider the intention of a person doing an act that act under one set of circumstances may show a certain intention, whereas the same act under a different set of circumstances may show a different intention, so that the inference in all cases has to be drawn from the circumstances of the cases themselves. The District Judge has chosen to consider that the several circumstances in this case are sufficient to establish what was the intention of the appellant and that is all that he is required to do, and he has evidence to go on. Consequently, this being a second appeal, I do not think that I can interfere with this finding of fact. The appeal is dismissed with costs. Time for payment is extended to three months from this date.