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Jagatdhar NaraIn Prasad and Gopi Lal Vs. A.M. Brown - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in(1906)ILR33Cal1133
AppellantJagatdhar NaraIn Prasad and Gopi Lal
RespondentA.M. Brown
Cases ReferredPatten v. Bond
Excerpt:
valuation of suits - appeals--appeal from decree making property liable for mortgage debt--court fees act (vii of 1870) schedule i, article i--value of the subject-matter in dispute--mortgage--form of mortgage--creation of charge on property--words creating simple mortgage--paibandh--intention of parties-registration--effect of registration in the wrong book--extinguishment of mortgage by payment--effect of payment of prior mortgage by subsequent mortgagee--intention of parties to keep mortgage alixe--assignment of mortgage--subrogation. - brett and gupta, jj.1. the plaintiffs, who are the members of a firm of merchants and agents carrying on business under the style of messrs. finlay, muir & co., calcutta, brought the suit out of which this appeal arises to recover from defendant no. 1, mr. carruthers, indigo-planter, the sums of (1) rs. 1,10,393, (2) rs. 1,13,955, and (3) rs. 1,75,752, total kb. 4,00,100, said to be due on three separate accounts.2. it seems that the nyagaon indigo concern in the district of monghyr originally belonged to mr. lawrence j. crowdy and that he sold the same on the 8th of april 1894 by a registered deed to the defendants mr. carrthers and to mr. charles g. h. rennie for rs. 80,000. the sum of re. 20,000 was paid over at the time of sale to the vendor, but the purchasers being unable then to.....
Judgment:

Brett and Gupta, JJ.

1. The plaintiffs, who are the members of a firm of merchants and agents carrying on business under the style of Messrs. Finlay, Muir & Co., Calcutta, brought the suit out of which this appeal arises to recover from defendant No. 1, Mr. Carruthers, indigo-planter, the sums of (1) Rs. 1,10,393, (2) Rs. 1,13,955, and (3) Rs. 1,75,752, total Kb. 4,00,100, said to be due on three separate accounts.

2. It seems that the Nyagaon Indigo Concern in the district of Monghyr originally belonged to Mr. Lawrence J. Crowdy and that he sold the same on the 8th of April 1894 by a registered deed to the defendants Mr. Carrthers and to Mr. Charles G. H. Rennie for Rs. 80,000. The sum of Re. 20,000 was paid over at the time of sale to the vendor, but the purchasers being unable then to pay the balance of Rs 60,000, executed in favour of the vendor a mortgage in the English form on the 8th April 1894, by which they agreed to pay up the balance in five instalments of Rs. 12,000 each, the first payable on the 15th January 1895 and the last on the loth January 1899, and as security for the payment mortgaged the entire Nyagaon Indigo Concern with all properties of every sort appertaining thereto.

3. On the 1st February 1895 Mr. Charles G. H. Rennie died, and thereafter the whole of his interest amounting to ten-sixteenths in the Nyagaon Indigo Concern as well the Sahogra Indigo Concern in its entirety was transferred to the defendant Mr. Carruthers by a conveyance executed on the 22nd February 1892 by the Administrator-Greneral of Bengal as administrator to Mr. Rennie's estate.

4. Neither the sum of Rs. 60,000 due to the plaintiffs as the balance of the price of the Nyagaon Indigo Concern nor any instalment thereof was paid to Mr. L. J. Crowdy by the defendant Mr. Carruthers, or by Mr. Rennie, or by the Administrator-General of Bengal as administrator to Mr. Rennie's estate. The whole of that sum was paid to Mr. Crowdy by the plaintiffs, instalment by instalment, as each fell due. That sum was paid by the plaintiffs out of their own funds and not out of any monies belonging to Mr. Carruthers or Mr. Rennie that were in their hands.

5. On the 7th November 1899, the plaintiffs having paid off the mortgage debt to Mr. Crowdy, Mr. Crowdy, at the instance of Mr. Carruthers, executed in their favour a registered transfer or assignment of the mortgage of the 8th April 1894, and on the 1st February 1901 the plaintiffs entered as mortgagees into possession of the Nyagaon Indigo Concern in accordance with the stipulations contained in the mortgage deed.

6. They brought the present suit in the first instance to recover the amount of the mortgage debt due to them from Mr. Carruthers with interest, after a proper account had been taken, and prayed that on his failure to pay the debt a decree be granted to them for foreclosure. On this first account the sum claimed was estimated at Rs. 1,10,393.

7. Under the second account they claimed to recover the sum of Rs. 1,13,955. It was alleged that, after the death of Mr. Rennie, the defendant Mr. Carruthers borrowed from the plaintiffs various sums of money to carry on the Nyagaon Indigo Concern, and that to secure payment for these loans he executed, first on the 2lst December 1895, a deed mortgaging the whole of the Nyagaon Indigo Concern and the Sahogra Indigo Concern for Rs. 30,000, secondly, a deed mortgaging the same two concerns for Rs. 50,000, and thirdly, a deed mortgaging the whole of the same two concerns and 8 annas in Sadanandapur Concern for Rs. 80,000. The last two deeds were executed on the same day, the 13th November 1898, and the Rs. 80,000 covered by the last included the two sums covered by the two other deeds.

8. Under the third account the plaintiffs claimed to recover from the defendant Mr. Carruthers the sum of Rs. 1,75,752 in respect of monies advanced to him, without security, for the purpose of carrying on the Nyagaon Indigo Concern.

9. The other defendants were added as parties in the suit for the following reasons:

Defendant No. 2, Babu Gopilal, had brought a suit against the defendant No. .1. Mr. Carruthers, on an ekrarnamah dated the 18th June 1895, in which it was alleged that the defendant No. I had created in favour of defendant No. 2 a charge on the 16 annas of the Nyagaon Indigo Concern, and he obtained a decree for Rs. 8,800-11-3 on the 28th September 1899. It was however contended that the decree was a money decree only and created no lien on the Nyagaon Indigo Concern.

10. The father of defendant, No. 3, Jagatdhar Narayan, obtained a decree for Rs. 17,258-6 against defendant No. 1 on the strength of a document, which purported to be a mortgage executed in his favour on behalf of defendant No. 1 by Mr. Macgillivray on the 7th June 1896, and in execution of the same put up for sale the Nyagaon Indigo Factory, with its buildings and about 5 bighas of land on which it stood, and purchased it for Rs. 2,500 on the 13th November 1899. Mr. Macgillivray's authority to execute the mortgage was denied, and it was alleged that, it created no charge on the Nyagaon Indigo Concern. In the course of that suit the father of defendant No. 3 attacked the machinery of the Nyagaon Indigo Concern; and though the plaintiff raised an objection, based on their rights as prior mortgagees under the mortgage deed of the 8th April 1894, their objection was disallowed. They prayed for a declaration that the order disallowing their claim was not binding on them.

11. The Administrator-General was added as a party defendant No. 6 to avoid any objection, which might be raised for want of parties, while defendants 4 and 5 were made parties as defendant No. 1 had executed a document in favour of parsotum Lal, who had transferred it to defendant No. 5. Defendants Nog. 7 to 10 were added, because they had purchased the Nyagaon Indigo Concern in execution of money decrees, and defendant No. 11, because she had obtained a decree for 8 annas share in Sada-nandapur factory.

12. The contesting defendants have all along been the defendants Nos. 3 and 2. Both deny that the plaintiff acquired any right under the mortgage deed of the 8th April 1894. They allege that the plaintiffs made the payments to Mr. Crowdy of the instalments due on that bond simply on the personal security of Mr. Carruthers, and they deny that there was any contract, between the plaintiffs and Mr. Carruthers, that that mortgage bond was to be kept alive for their protection or as creating in their favour any lien on the property covered by it. They contended that, after the mortgage bond had been paid off in full, the mortgage debt was discharged, land the bond became inoperative, and that thereafter the bond could not be legally assigned to the plaintiffs. The assignment made on the 7th November 1899 was therefore inoperative.

13. For defendant No. 3 it was further contended that as the assignment was subsequent to the mortgage bond executed in his favour by defendant No. 1, and to the decree obtained thereon, and the attachment under that decree, he was not bound by it. It was further denied that Mr. Campbell, who executed the deed of assignment on behalf of Mr. Crowdy under a general power-of-attomey, had power to execute the same. Further, defendant No. 3 claimed title to the property covered by the mortgage bond under the mortgage deed executed in favour of his father on the 7th July 1896 by the defendant No. 1 and under the decree obtained in the suit brought on that bond and on his purchase of the property sold in execution of that decree on the 13th November 1899. He further denied the genuineness and validity of the deed dated the 21st December 1895 and the two deeds dated the 13th November 1896.

14. Defendant No. 2 claimed to be a prior mortgagee to the plaintiff under the deed executed in his favour by the defendant No. 1 on the 18th June 1895, on which he had obtained a mortgage decree for Rs. 8,800-11-3 on the 28th September 1899, and contended that he was not bound by the assignment, as it was subsequent in date.

15. Both defendants pleaded that the suit was bad for multi-fariousness, on the ground that the claim by the plaintiff against Mr. Carruthers for the loans made on his personal security could not, under the law, be added to the claims to recover the debts secured by mortgages. A large number of issues were framed, which it is not necessary to deal with in detail.

16. The Subordinate Judge disallowed the plea that the suit was bad for misjoinder.

17. On the merits he held that the plaintiffs paid off the mortgage debt due by Mr. Carruthers to Mr. Crowdy on their own behalf and with their own money to secure the repayment of their own money advanced by them and that they did not pay it off as agents for Mr. Carruthers. He found that, though at the time of payment of the first instalment due on the bond of 8th April 1894, Mr. Carruthers had to his credit with them a sum of Rs. 47,550, still, at the time of the payment of the second instalment, Mr. Carruthers was in their debt to the amount of Rs. 42,779, and at the time of the payment of the last he was in their debt to the amount of Rs. 3,08,560. He held that it was the clear intention of the plaintiffs to keep alive the mortgage of the 8th April 1894, when the payments were made by them. Further, even accepting the contention, which was urged, that the plaintiffs were mere volunteers, he held that, after Mr. Crowdy had accepted the payments from them and assigned the mortgage to them, they were entitled to stand in Mr. Crowdy's shoes as first mortgagees. He accordingly found that the plaintiffs were entitled to recover the amount claimed on the first account, and that on the failure of the defendants Nos. 1 to 3 and 7 to 10 to pay up the mortgage debt within the time fixed the plaintiffs were entitled to foreclose the mortgage.

18. As regards the claim on the second account he found that the document of the 21st December 1895 was a simple mortgage, and that the object of the two documents of the 13th November 1896 was to keep alive the lien created by the first document and that they also created valid mortgages. He held that the debts were proved, and that the plaintiffs were entitled to recover the sum of Rs. 1,13,955 with interest, and, if the same were not paid within six months by defendant No. 1, then they would be entitled to recover it by sale of the Sahogra Factory and from the person of defendant No. 1 and from any other properties.

19. Further, he held that the plaintiffs had proved their claim on the third account and were entitled to recover Rs. 1,75,752 from defendant No. 1 personally.

20. Defendant No. 1 did not appear or file a defence, and in fact the claim of the plaintiffs as against him does not appear to have been disputed.

21. Defendant No. 3 has appealed to this Court in appeal No. 589 of 1904 and defendant No. 2 has appealed in appeal No. 354 of 1904. The two appeals have been heard together and are governed by this judgment.

22. A preliminary objection was taken to the appeal of the defendant No. 3 on the ground that it had not been properly stamped. As, however, it appears that he purchased the Nyagaon Indigo Concern for Rs. 2,500 at the sale in execution of the decree obtained on his mortgage, that apparently must be taken as the value of the property affected by the decree : Venkappa v. Nara-simha (1887) I.L.R. 10 Mad. 187.

23. Before dealing with the general points raised it is necessary to note that the ground of appeal raised by the appellant No. 3 in the memorandum of appeal, that the Subordinate Judge ought to have directed that an account be taken from the plaintiffs of the profits realised by them since they have been in possession of the property, has not been pressed, as the plaintiffs have agreed not to press the objection raised in their cross-objections that the Subordinate Judge erred in making plaintiffs responsible for the costs of the defendant No. 3.

24. The appeals have, however, been argued at length on the main points raised, which are as follows:

25. In appeal No. 289 of ]904 it has first been contended, but not very seriously, that the suit is bad for multifariousness. It is contended that a claim to recover from Mr. Carruthers the unsecured debts amounting to Rs. 1,75,752 could not be joined with the two claims to recover the debts secured by the mortgages as the defendants, other than Mr. Carruthers, had no concern with the unsecured debts, and it is suggested that the joinder of the two causes of action in one suit was not a mere irregularity, but an illegality, and on the authority of the case of Varajlal Bhaishanker v. Ramdat Harikrishna (1901) I.L.R. 26 Bom. 259 it has been argued that such a misjoinder could not be covered by the provisions of Section 578 of the Civil Procedure Code, for that section 'only applies to mistakes and irregularities subsequently committed in a suit which has been instituted in such a way as to give the Court jurisdiction to try it. The suit must first be instituted in the 'manner allowed by law.' It is however to be observed that the case referred to was one in which two different plaintiffs sued for damages on separate causes of action. It is difficult however to see how the defendant No. 3 or 2 can have been prejudiced by the form in which the suit has been brought. Possibly defendant No. 1 might have been prejudiced, but he has not appeared to say so. This objection, though raised in the pleadings, does not seem to have been pressed in the Court of first instance, and under the circumstances we do not think that at this stage it should be allowed to prevail,

26. The vital question for determination in these appeals is whether the plaintiffs are entitled to come in as first mortgagees of the Nyagaon Indigo Concern under the mortgage executed in favour of Mr. Crowdy on the 8th April 1894 by the defendant No. 1, and by Mr. Charles G. H. Rennie, deceased, and this main question resolves itself into two minor questions--(I.) whether the plaintiffs are entitled to claim as first mortgagees under that mortgage bond by virtue of the assignment made in their favour by Mr. Crowdy at the instance of Mr. Carruthers on the 7th November 1899, or (2) whether, apart from that assignment, they are entitled to the benefit of that mortgage either by reason of the fact that, when they paid off the instalments of the debt due from Mr. Carruthers under that bond to Mr. Crowdy there was a bargain between them and Mr. Carruthers that they should be entitled to take Mr. Crowdys place as mortgagees and to have the benefit of the security under that bond for the repayment of the money advanced by them to pay off the instalments, and should also be entitled to an assignment of the mortgage to them, or whether they are entitled to claim in equity the benefit of. that bond as security for those advances on the ground that, when they made those payments, it must be presumed that they intended that the mortgage bond should be kept alive for their benefit and protection.

27. Now in support of the appeal it has been argued that the plaintiffs can claim no benefit under the assignment made on the 7th November 1899 as the mortgage debt had been discharged, when the plaintiffs had. paid the last instalment on the 12th September 1899, and an assignment of the mortgage could only be made, while the mortgage was still alive. The mere fact that the plaintiffs had paid off the instalments due under the mortgage would not by itself entitle them to the benefit of that bond as security for those payments. It must be shown that there was an agreement between the parties, when the instalments were paid, that the mortgage should be kept alive for the benefit of the plaintiffs. Otherwise the demand of a creditor, which is paid with the money of a third person and without any agreement that the security shall be assigned or kept on foot for the benefit of such third person is absolutely extinguished by the payment. (Sheldon on Subrogation, Section 241). It is suggested that the plaintiffs advanced the money to Mr. Carruthers, defendant No. 1, on his personal security; that their accounts show that the sums were entered in them as personal debts due from Mr. Carruthers, and that the letter Ex. 8 (2) written by Mr. Carruthers to the plaintiffs on the 6th November 1899 shows that it was not till then that the plaintiffs thought of taking an assignment from Mr. Crowdy of the mortgage bond of the 8th April 1894. In support of these contentions the cases of Mohesh Lal v. Bawan Das (1883) I.L.R. 9 Calc 961 : L.R. 10 I.A. 62 das Gopal Das v. Puranmal Premsukh Das (1884) I.L.R. 10 Calc. 1035; L.R. 11 I.A. 126 and Dinobundhu Show Chowdhry v. Jogmaya Dasi (1901) I.L.R. 29 Calc. 154 : L.R. 29 I.A. 9, also the case of Christian v. Field (1842) 2 Hare 177 : 62 R.R. 67, have been relied on. The plaintiffs had therefore no right to claim a lien on the property under the mortgage bond of the 8th April 1894 or to priority over the defendant No. -3, who was entitled to the Nyagaon Indigo Concern by virtue of the mortgage bond executed in favour of his father on the 7th June 1896 by Mr. Carruthers and the purchase made on the l3 th November 1899 of the properly at the sale held in execution of the decree obtained on that bond, nor could the plaintiffs claim any lien on the property by virtue of the bond executed on the 21st December 1895 in their favour by Mr. Carruthers, as that was a mere agreement to mortgage and created no charge on the property. On the above grounds it has been contended that the foreclosure decree granted by the Subordinate Judge in respect of the first item of plaintiffs' claim must be set aside.

28. In the appeal by the defendant No. 2 the same contentions have been advanced as in the appeal of the defendant No. 3, and it has been denied that the plaintiffs are entitled to claim the right of prior mortgagees under the deed of 8th April 1894, and, on behalf of defendant No. 2 individually, it has been argued that by virtue of the ekrarnamah dated the 18th. June 1895 executed in his favour by Mr. Carruthers, defendant No. 1, and of the mortgage decree subsequently obtained on that bond on the 28th September 1899 in the suit to which Mr. Carruthers and defendant No. 3 were made parties, which decree was confirmed on the 1st May 1900, he is entitled to have his mortgage lien on the Nyagaon Indigo Concern declared and that it gives him priority over the plaintiffs, and further that, if it should be held that the plaintiffs are entitled to priority, then it gives him defendant No. 2 priority over the defendant No. 3.

29. It will be convenient to deal with this last argument first. It is argued that, because in the document of the 18th June 1895 there is a covenant to repay and an authority to the defendant No. 2, the covenantee, to sell the property of the covenantor, and because it is stated that the property referred to in the bond will be held paiband or liable for the debt, therefore the deed is a mortgage bond. It was argued that in creating a mortgage it is sufficient, if it appears from the deed that it was the intention of the parties to create a charge upon the land. If the intention can be collected from the instrument the form of expressing it is not material. The cases of Raj Kumar Ram. Gopal Narayan Sing v. Ram Butt Chowdhry (1870) 13 W.R.F. 15. 82 : 5 B.L.R. 264, Kishan Lal v. Gangaram (1890) I.L.R. 13 All. 28, and Nabin Chand Naskar v. Raj Coomar Sarkar (1905) 9 C.W.N 1001 are relied on.

30. We are, however, unable to accept the view that from the terms of the document relied on it is clear that it was intended to create a mortgage.

31. The bond on the face of it is an ordinary bond, on which Mr. Carruthers agreed to repay loans up to Rs. 5,000, which might be made to him by the defendant No. 2 and admitted that, if he failed to do so, the defendant would be entitled to recover the debt by sale of the Nyagaon Factory and from his person and other properties. This general admission of liability, which was merely that the defendant No. 2 could recover his debt as provided under the law, created no special lieu on the Nyagaon Indigo Concern. Further, it seems that the deed was registered as an agreement in Book I and not as a mortgage, which would have been copied in Book IV under the Registration rules. The registration was effected by Mr. Carruthers, but the defendant No. 2 never took any steps to have the document registered as a mortgage. This circumstance is evidence of the intention of the parties to the document to treat it as an agreement rather than a mortgage. See Najibulla Mulla v. Nusir Mistri (1881) I.L.R. 7 Calc. 196.

32. Under that bond or on the decree obtained thereupon the defendant No. 2 could not therefore claim any priority as mortgagees over the plaintiffs.

33. It remains then to deal with the main point, and its decision must mainly depend on the view we take of the facts. The first argument is that the plaintiffs must be held to have paid off the instalments due from Mr. Carruthers to Mr. Crowdy on the mortgage bond of the 8th April 1894 on the personal security of Mr. Carruthers. This seems hardly probable on the face of it, considering that the amount paid off was over Rs. 60,000. It is quite clear from the evidence that the instalments were not paid out of monies belonging to Mr Carruthes in the hands of the plaintiffs. The money was paid out of the funds of the plaintiffs, and the mere entry of the various sums paid in the accounts kept of advances made to Mr. Carruthers by the plaintiffs would not by itself indicate that the advances were made on the personal security of Mr. Carruthers only and were treated as personal debts. It is to be presumed that advances made on seurity would similarly have been entered in the accounts. It appears however that sums, such as those under consideration in this suit advanced for paying off mortgages and making extensions to the factories, were entered in a special account called the 'Block account.' Advances for working the factory were entered in another under the head of 'Outlay account,' and advances for private expenses were entered in another. Now it is clear from the evidence that the advances made on account of outlay and entered in the 'Outlay account' were always regarded as secured by a first charge on the outturn of indigo. It seems only a reasonable presumption to hold that the advances made under the head of 'Block accounts' were similarly regarded as advances made on security and not as mere personal debts.

34. The question however is, were the advances made under the head of 'Block accounts' to pay off the mortgage to Mr. Crowdy secured by the mortgage to Mr. Crowdy, that is to say, either (1) by keeping it alive for the benefit of the plaintiffs, or (2) by virtue of the doctrine of subrogation, or (3) by the formal assignment made on the 7th November 1899?

35. Now it has been laid down by their Lordships of the Privy Council in the case of Mohesh Lal v. Bawan Das (1883) I.L.R. 9 Calc 961 : L.R. 10 I.A. 62 that whether a mortgage paid off has been kept alive or extinguished depends on the intention of the parties, the mere fact that it has been paid off not deciding the question, whether or not it has been extinguished. Express declaration of intention will cause either the one result or the other, and in the absence of such expression the intention may be inferred either one way or the other, and in the case of Gokal Das Gopal Das v. Puran Mal Premsukh Das (1884) I.L.R. 10 Calc. 1035 : L.R 29 I.A. 9. L.R. 111. A. 126 they have also laid down that in India the question to ask is, in the interests of justice, equity an I good conscience, there applicable, what was the intent of the party paying off the charge, and that 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 interests. This principle has been followed in Tulsa v. Khub Chand (1891) I.L.R. 13 All. 581 and Dinobundhu Shaw Chowdhry v. Jogmaya Dasi (1901) I.L.R. 29 Calc 154;L.R. 29 I.A. 9.

36. In England the law laid down by Vaughan Williams L.J. in the case of In re Wrexham, &c;, Railway (1809) 1 Ch. 440, 463 also seems to apply to the facts of the present case. His Lordship said: 'I very much doubt whether either at law or equity a man, who pays off a debt at the request of another, is necessarily to be treated as an assignee, but very little evidence will be sufficient to establish that, as between himself and the person at whose request he has paid off the debt, it was intended that he should be treated as the transferee of the securities, if such there be, in the hands of the creditors.'

37. What evidence and presumption is there then in this case to support the view that the intention of the plaintiffs, when they paid off the mortgage debt, was to keep it alive for their protection? There is, it is true, no direct evidence of any formal bargain or agreement, but there is the fact that, when the plaintiffs made the advances up to Rs. 30,000 only on the outlay account, they protected themselves by the agreement of the 25th December 1895, which was supplemented by the later deeds of the 13th November 1896, which undoubtedly created a charge on the properties specified therein as security for the total advances amounting to 11s. 80,000. If for these advances the plaintiffs were careful in express terms to demand security and obtain it, is it reasonable to suppose that they advanced Rs. 60,000, which was three-fourths the value of the factory, without an agreement or understanding that after payment of the mortgage debt they would be entitled to stand in the shoes of the mortgagees. We think it would not be reasonable.

38. The presumption in favour of its having been the intention of the plaintiff's to keep the mortgage alive for their benefit, when they paid off the instalments, is much stronger. It was clearly for their benefit in order to secure the recovery of the money so paid, and it is to be presumed that their intention was in accordance with their interests. Moreover, at the time of the second instalment at least, they were substantially interested in the factory, as Mr. Carruthers was then in their debt to the extent of Rs. 42,779 for advances made to work the factory, which were only recoverable out of the indigo manufactured- This raises an even stronger presumption that their intention, when they paid off the instalments, was that the mortgage should be kept alive for their benefit and that in itself would entitle them to come in as first mortgagees in this suit.

39. Further, the fact that at the time of the payment of the second instalment Mr. Carruthers was in their debt to the extent of Rs. 42,779 would be sufficient to place the plaintiffs in the position of a person who, though not personally bound to discharge a debt, found himself obliged to do so in his own protection, and in such position they had a right to the assignment of the security held by the creditor, Mr. Crowdy, when the mortgage debt was paid off.

40. Moreover, the deed of the 25th December 1895, Exhibit 0, executed by Mr. Carruthers in favour of the plaintiffs, by which he agreed to give them a first mortgage on the Nyagaon Indigo Factory for Rs. 80,000, in itself created an equitable mortgage in their favour, and after the two deeds which were supplemental to this agreement were executed on the 13th November 1896 a valid charge on the Nyagaon Indigo Concern as well as on Mr. Carruthers' share in Sahogra and Sadauandapur Concerns were created in favour of the plaintiffs. After that they were in the position of puisne mortgagees, and when thereafter they paid off the last three instalments due to the first mortgagee, Mr. Crowdy, and so redeemed his mortgage, they were entitled to come in by subrogation in the place of Mr. Crowdy as mortgagees under that bond. On this ground also we think that the plaintiffs were entitled in this suit to come in as first mortgagees.

41. Finally, they were certainly entitled to come in as such by virtue of the assignment executed in their favour by Mr. Crowdy through his general attorney at the request of Mr. Carrathers on the 7th November 1899. It was suggested to us that the general power-of-attorney to Mr. Campbell had not been proved. In the Lower Court it was not disputed and seems to have been admitted without objection. The point cannot be taken now on appeal. The mortgage had been kept alive in the plaintiffs' favour and they took the assignment ex abundanti. cautela (see Ghose on the Lav? of Mortgage in India, p. 400) from Mr. Crowdy as soon as it was possible for them, to do so after paying off his debt. They could not have taken it earlier. When the mortgage was paid off it rested with Mr. Crowdy either to execute a reconvene of the property in favour of Mr. Carruthers or to assign over the bond to him. The assignment of the mortgage to the plaintiffs under Mr. Carruthers' direction clearly gave to the plaintiffs all the rights as first mortgagee, which Mr. Crowdy had under the bond.

42. We may observe that the price at which the defendant No. 3 bought the Nyagaon Indigo Factory, viz. Rs. 2,500, in satisfaction of his own decree, indicates clearly enough that it was generally known that the plaintiffs were the first mortgagees.

43. We hold therefore that on all the three grounds the plaintiffs were entitled in this suit to come in as first mortgagees under the bond of 8th April 1894.

44. We may observe that the case of Patten v. Bond (1889) 37 W.R. (Bug.) 373 : 60 L.T.N.S. 553, on which the learned Counsel relied in support of the plaintiffs-respondents, does not apply to a case like the present. In that case the person, who paid off the mortgage on the property to save it from sale, was held to have a right to stand in the shoes of the trustees to that property, and as such to be entitled to avail himself of any lien, which they might have on the trust property, and it was held that, if a trustee had paid off the debt, he would certainly have been entitled to stand in the shoes of the mortgagee with reference to the trust estate.

45. The result is that we confirm the judgment and decree of the Subordinate Judge and dismiss both appeals with costs.


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