1. The facts of this case are as follows:---One Tharuvai who was the jenmi of the plaint property demised it on kanom to the first defendant. He subsequently hypothecated the property to one Kalantham who sub-mortgaged his rights to Kathiya in 1895. Kathiya brought a suit on her mortgage and obtained a decree. In execution of that decree the plaintiff purchased the rights of Kalanttham and Tharuvai and now sues to redeem the kanom in favour of the first defendant. Before the plaintiff's purchase, a suit had been brought against Tharuvai and the equity of redemption in the suit property was sold in Court auction and purchased by one Kunhi Mayan Haji He transferred it to one Sooppi Haji who in turn transferred it to 5th defendant's brother and 5th defendant is now entitled as heir to his brother.
2. The first question for consideration is whether plaintiff or 5th defendant was the owner of the equity of redemption. When the suit was brought by Kathiya, Tharuvai was dead. His heirs were impleaded as legal representatives, whereas the person who ought to have been impleaded was the purchaser of Tharuvai's rights. It is contended here that the decree and sale .in execution are binding on Tharuvai's estate and that, therefore, the equity of redemption was rightfully sold and purchased by plaintiff. To support this contention the appellant relies on three cases Gnanambal Ammal v. Veerasami Chetty 31 Ind. Cas. 920 : 29 M. L. J. 698.; Ramasawmi Chettiar v. Oppilamani Chetti 4 Ind. Cas. 1059 : 6 M. L. T. 269 . and General Manager of the Raj Durbhunga v. Maharajah Coomar Ramaput Singh 14 M. I. A. 605. These cases can, however, all be distinguished on one short ground. They are all cases in which wrong representatives of the deceased had been impleaded to represent the deceased's estate. It was held that, although' the estate ought to have been represented by other people, the decree was binding on the deceased's estate and that it was adequately represented for the purpose of the suit, but in all these cases at the time of his death the deceased was admittedly the owner of the properties in suit and it really amounted only to an error in pro-! cedure ; the estate was admittedly liable and was merely represented by the wrong. parties. In the present case, however, when Tharuvai's representatives were impleaded, they only represented Tharuvai's estate at the time of his death, but when he died he was no longer the owner of the, equity of redemption which had passed by the Court sale to Kunhi Mayan Haji. It cannot, therefore, be said that his heirs represented the estate so far as this equity of redemption is concerned, for it did not form part of the estate at all but belonged to Kunhi Mayan Haji or his successor. As Kunhi Mayan Haji and his assigns were not represented in that redemption suit, the decree cannot be binding upon them. Kunhi Mayan Haji had previously purchased the equity of redemption and was the owner. Consequently the 5th defendant by devolution became the owner of the equity of redemption and when the plaintiff purchased the rights of Tharuvai he did not purchase the equity of redemption in the suit property. As he is not the owner of the equity of redemption he cannot on that ground bring a suit for redemption, but he puts forward an alternative claim, namely, that as purchaser of the subsequent mortgagee's right he is entitled to redeem the prior mortgage. It is possible that, he might be entitled to do so, if that prior mortgage was subsisting. It was, however, redeemed by the 5th defendant before this suit was filed and it is contended that by that purchase there was a merger and the mortgage was discharged. It was open to the 5th defendant to keep the mortgage alive by express terms, or he could be deemed to keep it alive if it was for his benefit to do so. Seeing that there was only one mortgage outstanding, namely, Kalanthan's mortgage, and the enforcement of the mortgage has become barred by lapse of time at the time of redemption, it was clearly to the 5th defendant's interests to extinguish the prior mortgage.
3. It is suggested for the appellant that this question of merger was never raised in the Trial Court, but it appears from para. (1924) M. W. N. 508; A. I. R. 1925 Mad 176 (a) of the District Munsif's judgment that the question was put forward in the trial. It is obviously difficult to adduce oral evidence as to a man's intention and we are thrown back on the presumption that he did what was be3t in his own interests; it was to his interest to discharge the mortgage and not keep it alive. There is, therefore, no mortgage to be redeemed by the plaintiff and his suit must, therefore, fail. In this view, the question of limitation decided by a learned Judge of this Court in Lakshmanan Chettiar v. Sella Muthu Naicker 84 Ind. Cas. 301 : 47 M. L. J. 602; (1924) M. W. N. 508; A. I. R. 1925 Mad 176 need not be considered.
4. The appeal is dismissed with costs.
5. T agree.