1. This is an appeal on behalf of the plaintiff in an action for the enforcement of a mortgage executed in his favour by the first defendant on the 16th September 1899. The properties comprised in the security are three in number and may be briefly described as the Mogulbagan, the Chitpur Road House and the Tangra Road land. In order to determine the relative lights of the parties to the properties in question, it is necessary to set out in detail the various transactions which have taken place with regard to them both before and after the mortgage; These transactions are of a somewhat complicated character; but, so far as it is necessary to describe them for the purpose of disposing the questions raised before us, they may be thus briefly outlined.
2. The father of the first defendant, Abdul Karim, died on the 9th January 1897, and left an estate of considerable value, part of which was heavily encumbered. In his lifetime, on the 22nd February 1894, he had executed a mortgage for one Lac of rupees upon the Chitpur Road House in favour of the London and Lancashire Life Insurance Company. He left three sons, Abdus Samad (the first defendant), Mohamed Bakar, Abdul Mohamed, a widow and two daughters. Shortly after his death, on the 3rd February 1897, his two sons, other than the first defendant, obtained Letters of Administration to his estate from the Original Side of this court. While the estate was in course of administration, the first defendant, on the 10th February 1899, executed a bond in favour of the plaintiff for Rs. 4,000 and hypothecated his share in Mogulbagan, the Tangra Road land, and another property in Ballygunge. It appears from the evidence that the Ballygunge property had been sold out and had ceased to form part of the estate before the execution of the mortgage. When the plaintiff discovered this, and found the mortgagor unable to pay the interest regularly, as he had covenanted to do in the mortgage bond, he began to press him for additional security. Meanwhile on the 20th June 1899, the first defendant executed another bond for Rs. 5,000 in favour of the fourth defendant, and hypothecated his share in Mogulbagan, the Chitpur Road House, and the Tangra Road land. On the 24th June and the 28th July 1899, the mortgagor executed two other bonds in favour of the sixth defendant, and hypothecated the properties covered by the security of the 20th June 1899. It is also stated that, on the 23rd July 1899, he executed another mortgage bond in favour of the third defendant, but no details, as to this transaction, are forthcoming. On the 16th September 1899, he executed in favour of the plaintiff the mortgage bond, which is the foundation of the present suit, for a sum of Rs. 4,861, and the properties given as security were the shares of the mortgagor in Mogulbagan, the Chitpur Road House and Tangra Road land. The consideration was made up of the 4,000 rupees, advanced upon the bond of the 10th February 1899, a sum of Rs. 361, which represented the interest which, had accrued due on that date, and a sum of Rs. 500 as a fresh advance. On the 9th January 1900, the mortgagor executed another bond for Rs. 3,325 in favour of the fifth defendant, and the properties given as security were his shares in Mogulbagan and the Chitpur Road House. In 1901, the London and Lancashire Life Insurance Company, commenced a suit on the Original Side of this Court to enforce their security, and they joined as defendants, the administrators, the present plaintiff, the husband of the fifth defendant, another puisne encumbrancer, who claimed to derive title from the first defendant, and other encumbrancers, who derived title from the administrators. 'This suit was consolidated with another, in which certain creditors of the estate of the father of the first defendant had sued to enforce a money claim against the administrators. So far as we can make out, the cases may have been heard together, but a separate decree was drawn up in the case of the London and Lancashire Life Insurance Company. To the terras of tills decree made on the 27th April 1903, we shall have to refer in detail hereafter, but it is sufficient to state at this stage that the decree directed the sale of the Chitpur Road House as also of the properties covered by the securities of the defendants, who derived title from the administrators. Various directions were given as to the order in which the London and Lancashire Life Insurance Company and the other mortgagees from the administrators were to be paid, but so far as the present plaintiff and the other persons who hold mortgages from the first defendant, Abdus Samad, were concerned, no provision was made for the realization of their claims, although liberty was reserved to them to apply to the court for the administration of the estate of Abdul Karim, and for the sale of what might prove to be the share of the present first defendant, Abdus Samad, in it. No materials have been placed before us to enable us to form an accurate idea of what proceedings have been taken pursuant to this decree; but we have been informed that the Chitpur Road House has been sold and that the proceeds have been practically exhausted in satisfaction of the claims of the London and. Lancashire Life Insurance Company, and the other mortgagees who derived title from the administrators. The result in substance has been that nothing has been left, against which the appellant could proceed for the satisfaction of his claim.
3. We have now to turn back for a moment to the proceedings, under which the second defendant, who is the real contesting defendant in the present litigation, derived his title. On the 22nd February 1899, the administrators obtained the leave of the court to sell the Mogulbagan property for the purposes of the administration of the estate of Abdul Karim. On the 24th June 1899, two persons, by name Kailash Chandra Pal and Jogendra Nath Pal entered into an agreement with the administrators to purchase the property, The inquiry into the title, however, was protracted, and it was not till the 28th January 1902 that a conveyance was executed by the administrators to the Pals for Rs. 1,04,000. Meanwhile, on the 9th July 1900, the present second defendant, Bhoglu, had obtained a decree for money against the first defendant, Abdus Samad, in the Calcutta Small Cause Court. The decree was transferred to the Court of the Munsiff of Sealdah, and on the 2nd May 1901, the share of Abdus Samad in Mogulbagan was attached in execution. On the 12th July 1901, the administrators preferred a claim on the ground that they were in possession of the attached property, which had vested in them as administrators, and that it could not be seized by any execution creditor of Abdus Samad till the administration of the estate of his father had been completed. This claim was disallowed on the 7th September 1901. The administrators then obtained a Rule from this court for the revision of this order, but on the 14th May 1902, the Rule was discharged in the presence of the claimants, the decree-holder and his judgment-debtor. The second defendant, Bhoglu, then proceeded with the execution of his decree, brought the share of Abdus Samad to sale and purchased it himself for Rs. 802, on the 14th November 1902. This sale was confirmed on the 9th December 1902. Meanwhile, a portion of Mogulbagan had been acquired for public purposes under Land Acquisition Act, and a sum of over Rs. 52,000 was in the custody of the Collector. Disputes now arose between Bhoglu and the Pals as to the disposal of this sum of money. On the 13th August 1904, the Pals took proceedings before the Land Acquisition Judge for apportionment of the sum which represented the value of the portion acquired, and on the 19th July 1905, the Pals commenced an action against Bhoglu for declaration of their exclusive right, as against him, to the property purchased by them. The Court of First Instance, in each of these two cases, held that, as neither the administrators nor the Pals who derived title from them, had instituted a suit to challenge the propriety of the order in the claim case, within the period of limitation prescribed therefor, the order had become final and conclusive with the result that as against the Pal, Bhaglu had become entitled to what had been seized by him in execution as the interest of his judgment-debtor, Abdus Samad, in Mogulbagan. Appeals were then preferred to this Court by the Pals and the view taken by the Court of First Instance was affirmed on the 16th April 1907. Meanwhile, on the 22nd July 1906, the plaintiff commenced the action, out of which the present appeal arises, for recovery of the sum due under his mortgage security. The first defendant was the mortgagor, Abdus Samad.; the second was Bhoglu, who had purchased the interest of Abdus Samad in Mogulbagan, on the 14th. November 1902; the third, fourth, fifth and sixth were puisne encumbrancers, and the seventh and eighth were the Pals. The mortgagor admitted the validity of the mortgage deeds, and the only objection which, he raised was that in the plaint credit had been given for a payment of Rs. 2,000, on the 16th March 1903, whereas he alleged that credit for this sum ought to have been given on the 28th January 1902. The second defendant took various objections, the most important of which was that the suit could not proceed in view of the decree made on the Original Side of this court in the suit of the London and Lancashire Life Insurance Company. He further contended that the plaintiff had relinquished his lien upon the Mogulbagan property, that in addition to the payment for which credit had been given in the plaint, another sum of Rs. 2,000 had been paid, and that, in any view of the matter, the properties comprised in the security ought to be made to contribute only rateably for the satisfaction of the dues of the plaintiff. The third defendant did not appear. The fourth defendant, who held a mortgage of the 20th June 1899, claimed priority in part, if not in whole, over the mortgage of the plaintiff. The fifth, defendant contended that the suit could not proceed in view of the decision of this court in the suit of the London and Lancashire Life Insurance Company. The sixth defendant claimed priority in respect of the sums due to her over a portion of the amount sought to be realized by the plaintiff. The seventh and eighth defendants, the Pals, contended that the mortgage was invalid as against them, inasmuch as it had been created during the pendency of the administration, and could not be enforced against the property sold to them by the administrators with the leave of the court. As the Pal defendants thus claimed under a title paramount to that of the mortgagor, they were, in view of the principle laid down by this court in Jajneswar Dutt v. Bhuban Mohan Mitra 3 C, L, J, 205, discharged from the suit. The Subordinate Judge then framed the following issues:
(1). Is the suit barred by Sections 12 and 13 of the Code of Civil Procedure?
(2). Is the mortgage sued upon executed for valuable consideration?
(3). Did the plaintiff release or abandon his mortgage lien in property No. 1 (Mogulbagan)?
(4). Is the plea of payment of Rs. 2,000 of defendant No. 2 true or not?
(5). Was the plaintiff aware of the Land Acquisition proceedings and has he any lien over the compensation money in deposit in the Court of the Land Acquisition Judge?
(6). Is the plaintiff bound to follow properties other than property No. 1 in the first instance, and are all the mortgaged properties liable to contribute rateably?
(7). Has the mortgage of defendant No. 4 priority over the plaintiff's mortgage?
4. Evidence was given on all the issues at the trial on behalf of both sides, and the parties closed their case. The Subordinate Judge, however, held upon the first issue that the suit was barred by res judicata, and, in this view of the matter, dismissed the suit without any adjudication upon the other points raised. The plaintiff has now appealed to this court, and on his behalf it has been argued that the suit is not barred by the principle of res judicata. In our opinion, this contention is well founded, and must prevail. As the evidence on the record is complete, we have heard the parties at length upon all the material points involved and we shall give a decision on the merits upon the whole case.
5. In support of the view that the suit is barred by the principle of res judicata, it has been contended by the learned Vakil who appears for the second defendant that as the plaintiff was made a party to the mortgage suit instituted on the Original Side of this court by the London and Lancashire Life Insurance Company and as the decree of this court reserved to him liberty to ask for the administration of the estate of the father of his mortgagor, he is restricted to the remedy thus specified, and he cannot maintain an action for recovery of the money due on his security. It has been contended, on the other hand, by the learned Vakil for the appellant that the plaintiff as mortgagee has a right under the contract to enforce the security, that the liberty which was reserved to him under the decree of this court is of doubtful efficacy, and that it could never have been intended to restrict him by that decree in the pursuit of any lawful remedy, otherwise available to him for the enforcement of the security he holds. Reliance has also been placed on behalf of the respondents upon the cases of Kissory Mohun Roy v. Kally Churn Ghose 22 C. 100, Kissory Mohun Roy v. Kali Churn Ghose 24 C. 190, and Ibn Hasan v. Brijbhukan Saran 20 A. 407 (F.B.), to show that it was open to the present plaintiff to obtain the relief, which he now seeks, in the suit in which he was the defendant. These cases, however, are clearly distinguishable. They only show, as was pointed out by this court in Mackintosh v. Watkins 1 C.L.J. 31, that according to the practice, which prevails on the Original Side of this court, it is open to the court in a mortgage suit to direct the sale of the properties comprised in the securities of all the encumbrancers who are parties to the litigation and to provide for the payment of their claims according to the order of their respective securities. In other words, as pointed out in Plait v. Mendel (1884) 27 Ch. Div. 246, in a suit for sale by a first encumbrancer where there are successive encumbrancers, puisne encumbrancers may be allowed to have their claim satisfied out of the surplus sale proceeds, if any. It may be conceded that, if an order of this description is made, a separate suit would not lie at the instance of the puisne encumbrancer for the enforcement of his security, because, as was said in Fliess v. Buckley 45 Sickels, N.T. 288, if the junior mortgagee is in a position to have his claim satisfied from the surplus sale proceeds realised at the instance of the senior mortgagee, he cannot be allowed to maintain another action to reach that very surplus, and his remedy is to follow the surplus in the court which made the previous judgment. Indeed, it is difficult to conceive why a puisne encumbrancer, who can get his claim satisfied so speedily, should care to have recourse to a separate litigation for the same purpose (Jones On Mortgages,' Section 1688). It is to be remembered, however, that an order of this description which enures to the benefit of the plaintiff, prior encumbrancer, as well as the defendant, junior encumbrancer, can be made only, if all the parties interested in the equity of redemption of both the mortgages are before the court. In the case before us, the decree on the Original Side of this court, made on the 27th April 1903, did not provide for the payment of the dues of the plaintiff from the surplus sale proceeds. The reason is not difficult to discover, The court apparently differentiated between the securities created by the original owner, Abdul Karim, or by the administrators of his estate and the securities created by his son, Abdus Samad, at a time when the estate was under administration. So far as the securities of the former description are concerned, the court directed, the sale of the properties comprised therein for successive payments of the claims of the different mortgagees in the order of security. The decree, further, directed that if the mortgagor, Abdus Samad, satisfied the claims of the mortgagees who held securities from him, they were to reconvey the premises comprised in their respective mortgages free from all encumbrances; but the court did not direct that, in default of payment by the mortgagor, Abdus Samad, the properties comprised, in the securities created by him were to be sold and the proceeds applied in satisfaction of the dues of the successive encumbrancers. The court in fact was not in a position to make an order of this description. The parties interested in the equity of redemption of the various mortgage securities were not before the court, for the obvious reason that the plaintiff in that litigation did not think it necessary to implead them as defendants. But whatever the reason for the order of the court might have been, the substance of the matter is that the court did not make an order for the sale of the properties comprised in the security of the present plaintiff, and the payment of his dues. On what principle then can it be contended that he is debarred from the pursuit of his lawful remedy in the present litigation? It was ingeniously suggested by the learned Vakil for the second defendant that, as the present plaintiff in his written statement in the suit of the London and Lancashire Life insurance Company did expressly ask that provision might be made for payment of his dues, and as no such provision was made, that particular prayer must, by implication, be deemed to have been refused, and that, therefore, under explanation III. to Section 13 of the Civil Procedure Code of 1882, the plaintiff is barred by the doctrine of res judicata. This argument, however, is obviously fallacious on more than one ground. In the first place, it is founded on the assumption that the written statement of the present plaintiff must be treated as a plaint. In the second place, it is assumed that it was obligatory upon the court to make a decree for the sale of the properties comprised in the security of the present plaintiff. In the third place, it is further assumed that the court can, in the absence of all the parties interested in such properties, make a decree of that description. There is no foundation for any of these assumptions. On all these grounds, we must hold that, although liberty was reserved to the present plaintiff to ask for the administration of the estate of the father of his mortgagor, it was not obligatory upon him to do so, and that he is not limited to that remedy. We were, further, informed that the administration of the estate of Abdul Karim, as may be expected from the length of time which has elapsed since the appointment of the administrators, has been already completed by them so that it is difficult to appreciate what good would result, even if the plaintiff were now to avail himself of the liberty reserved to him in the decree of this court. We may also add that Section 12 of the Code, which was mentioned in one of the issues as a possible bar, has obviously no application and no reliance was placed upon it in the arguments addressed to us at the bar. It follows, consequently, that the present suit is maintainable, and must be tried on the merits.
6. As regards the merits, the substantial points urged by the second defendant in answer to the claim of the plaintiff are, first, that the plaintiff has no subsisting valid security which he can enforce as against the Mogulbagan property after that property has been sold by the administrators, with the leave of the court, to the Pals; secondly, that there was a release by the plaintiff of his lien over the Mogulbagan property; thirdly, that in any event, the mortgage debt ought to be apportioned upon the properties comprised in the security. In answer to these points, it has been argued by the learned Vakil for the plaintiff appellant, first, that the second defendant as the purchaser of the right, title and interest of his mortgagor at a sale held in execution of a money decree is estopped, quite as much as the mortgagor himself, from questioning the validity of the mortgage; secondly, that there was in fact no release by the plaintiff of his lien upon the Mogulbagan property, and that assuming that there was any negotiation in that direction, it was inoperative in the absence of a duly executed, and registered document, and thirdly, that the second defendant is not entitled to claim as a matter of right that the mortgage debt should be apportioned and distributed upon the several properties comprised in the security.
7. As regards the first of those points, the solution depends upon the determination of the true position of the second defendant. As previously stated, he held a money decree against the mortgagor, Abdus Samad in execution of that decree lie attached, the right, title and interest of the judgment-debtor in the Mogulbagan property. The administrators preferred a claim which proved infructuous. The second defendant, thereupon, purchased the property at the execution sale on the 4th November 1902. The transferees from the administrators subsequently sought to challenge this title, but found themselves barred by limitation. What is the precise effect to be attributed to these proceedings? The second defendant suggests that when he successfully fought the claim case, he intended to do so solely for his own benefit and that his victory over the administrators and the transferees cannot accrue to the benefit of the present plaintiff. In our opinion, this contention is manifestly fallacious. Rightly or wrongly, he succeeded against the administrators; when their claim was disallowed, the result was that the property, which the second defendant had seized in execution as the property of his judgment-debtor, became available for the satisfaction of his claim. He could, as the result of any possible purchase in execution proceedings, on the basis of his decree, acquire only the right, title and interest of his judgment-debtor, as they stood on the date of attachment. On that date, there was a subsisting mortgage on that property in favour of the present plaintiff. In the eye of the law, therefore, all that could be seized at that time by any execution creditor of the mortgagor was his equity of redemption. It is difficult to conceive how, upon any intelligible principle the view can be maintained that the second defendant seized in execution the property, of his judgment-debtor free from the mortgage, previously imposed by the latter thereon. In this view of the matter, so far as the present question is concerned, his position is identical with that of his judgment-debtor. Now, what was the precise position of the judgment-debtor, mortgagor, so far as the plaintiff's mortgagee was concerned. As is pointed out, in Bigelow On Estoppel,' 5th Edition, page 544, in regard to the relation of mortgagor and mortgagee, when the mortgagor retains possession, a relation is created similar to that of landlord and tenant, and the mortgagor is estopped from denying the title of the mortgagee. A mortgagor must, from the very nature of the mortgage, contract to preserve the property pledged for the purposes of the original security, and is, therefore, estopped, independently of covenants of warrantee, from denying the mortgagee's title and the existence of the lion which he has created, or from defeating its enforcement against the property against which it was placed. In Doe v. Pegge (1785) 1 T.R. 758, Lord Mansfield observed, that the Court never suffers a mortgagor to set up the title of a third person against his mortgagee, for he made the mortgage, and it does not lie in his mouth to say so, though such third person might have a right to the proper possession. To the like effect are the same learned Judge's observations in Goodtitle v. Bailey (1777) 2 Cowper 597, where it is said that as no man can be allowed to dispute his own solemn deed, a mortgagor cannot be permitted to dispute the title of his mortgagee [see also Doe v. Vickers (1836) 4 A. and E. 782]. Precisely the same view was taken by the Supreme Court of the United States in Willison v. Watkins 28 M.S., 3 Pet. 43, L. Ed. 7: 596, where the principle of estoppel applicable to landlords and tenants was held to govern cases between mortgagors and mortgagees, trustees and ceslui que trusts and generally to all oases where one obtains possession of real estate belonging to another by recognition of his title. On this ground, it was ruled by the Supreme Court of California in Coak v. Dela Guerra (1864) 24 Calf, 237, a mortgage, made by the heirs of a deceased owner before the administration or settlement of the estate, cannot be objected to by them, on the ground that the creditors and legatees of the estate have not been paid. It is clear, therefore, upon principle as well as upon the authorities that in so far as the first defendant, the mortgagor of the plaintiff, is concerned, he is estopped from denying the title of the mortgagee. Ho cannot be allowed to say that the mortgage is invalid because it was effected at a time when the estate was in the course of administration and is liable to be challenged by persons who have subsequently acquired the mortgaged premises from the administrators. If this defence, therefore, is not open to the mortgagor, on what principle is it open to the purchaser of his right, title and interest in the equity of redemption. There can be no doubt but that, if he had been a private purchaser of the property in dispute from his' judgment-debtor, he would have been estopped in the same way as his vendor, for it has been repeatedly laid down that although a purchaser of mortgaged premises is not estopped by his mere acceptance of the deed from disputing the validity of the mortgage or the amount due under it on the ground of objections which were open to the mortgagor, yet he is limited to such objections or defences only as could have been pleaded by the mortgagor himself, and he cannot even set up all of these, for he is not permitted to urge defences strictly personal to the mortgagor. It is sufficient in this connection to refer to the case of Doe v. Stone (1846) 3 C.B. 176; 71 R.R. 311, in which it was ruled that it would be no more open to a person standing in the shoes of the mortgagor than to mortgagor himself to set up, as against the mortgagee, any preceding estate which he himself had created. A. similar view has been taken in the American Courts where the leading decisions are Citizens' Bank v. Webre 44 La. Ann. 344; 10 Southern 728, Pass v. Lynch 117 N.C. 453; 23 S.E. 357, and Daggs v. Ewell 3 Woods 344; 6 Fed. Cases 1109, the decision in the last of which case was affirmed upon this point by the Supreme Court of the United States Ewell v. Daggs 108 M.S. 143; L. Ed. 27: 682. Does it then make any difference if the purchaser acquires title, not by a private sale but, at a sale held in execution of a money decree? In our opinion, it does not. That this view is correct cannot, of course, be disputed where the sale is made expressly subject to the mortgage or where only the equity of redemption is seized and the purchaser bids only the value of such equity. But it cannot be limited to this class of cases; the purchaser at the execution sale is bound by the same rule of estoppel as the judgment-debtor, on the principle that the former has purchased merely the right, title and interest of the latter and does not consequently occupy a position of greater advantage. This view is supported by the decision of their Lordships of the Judicial Committee in Mahomed Mozuffer v. Kishori Mohun Roy 22 C. 909; L.R. 22 I.A. 129 (P. C). In that case, where A. had allowed 15. to hold herself out to the world as the owner of certain properties and was consequently bound by the rule of estoppel not to deny the title of B. as against bana fide purchasers for value without notice from B, the question arose whether the estoppel as against A. was purely personal, or whether it would also operate as against execution purchasers of the interest of A. It was ruled by this Court (Kishory Mohun Roy v. Mahomed Mujaffar Hossein 18 C. 188, at page 198), contrary to the principle deducible from Richards v. Johnston 4 H. & N. 660, and Heane v. Rogers 9 B. & C. 577, that the estoppel, that would bind A, would also bind the execution purchasers of his interest. This view was subsequently affirmed, by their Lordships of the Judicial Committee and they rested their conclusion on the ground that the principle of estoppel, founded in that case upon the decision in Ram Coomar v. Mcqueen 18 W.R. 166; 11 B.L.R. 46; L.R.I.A. Sup. Vol. 40, applied, not only to A. but also to the execution purchasers of the interest of A., who were equally bound by it, as they had purchased only his right, title and interest. This is in accord with the statement of the rule by Kay L.J. in Medell v. Thomas (1891) 1 Q.B. 230 (238). No doubt, the statement has sometimes been made by text writers (Hukam Chand on Res-judicata, 204 and Caspersz on Estoppel, 2nd Edition, 66), apparently on the basis of judicial dicta of the highest authority, that, as there is no privity between the purchaser at a sale in execution of a decree and the judgment-debtor whose property is sold, the purchaser at the execution sale is not bound by the same rule of estoppel as the judgment-debtor. Thus in Anundo Moyee Dossee v. Dhonendro Chunder Mookerjee 16 W.R. 19 (P.C.); 8 B.L.R. 122; 14 M.I.A. 101, Lord Justice James observed that the title of a purchaser under a judgment decree could not be put on the same footing as the title of the mortgagor or of a person claiming under a voluntary alienation from the mortgagor. Again, in Amrit Kooer v. Lall Debee Pershad 18 W.R. 200, Sir Richard Couch remarked, with reference to purchasers at an execution sale, that they were not in the position of persons taking a conveyance direct from the party and were, therefore, not bound by what the judgment-debtor might have stated on some previous occasion. Somewhat to the same effect are the observations of Sir Barnes Peacock in Dinendro Nath v. Ram Kumar 7 C. 107; L.R. 8 I.A. 65: 'There is a great distinction between a private sale in satisfaction of a decree and a sale in execution of a decree. Under the former the purchaser derives title through the vendor and cannot acquire a better title than that of the vendor. In the latter, the purchaser, notwithstanding he acquires merely the right, title and interest of the judgment-debtor, acquires that title by operation of law adversely to the judgment-debtor and freed from all alienations or incumbrances effected by him subsequent to the attachment of the property sold in execution. On the authority of these observations it was ruled by this court in Lala Parbhu Lal v. Mylne 14 C. 401, that a purchaser at an execution sale was not the representative of the judgment-debtor for the purpose of the rule of estoppel. Substantially to the same effect are the decisions in Rungo Monee v. Raj Coomaree 6 W.R. 197 (198), Gour Sundar v. Hem Chunder 16 C. 355 (360) and Bashi Chunder v. Enayet Ali 20 C. 236 (239). There can be no question, however, that the rule so widely formulated in these judicial dicta, is neither supported by authorities nor defensible on principle. It will suffice for our present purpose to refer to the judgment of the Full Bench of this court in Ishan Chunder v. Beni Madhub 24 C. 62 (75), in which it was pointed out that the view taken in these cases is based on a misapprehension of the passages from the decisions of the Judicial Committee in Anundo Moyee v. Dhonendro 16 W.R. 19 (P.C.); 8 B.L.R. 122; 14 M.I.A. 101 and Dinendro v. Ram 18 W.R. 166; 11 B.L.R. 46; L.R.I.A. Sup. Vol. 40, to which we have just referred. These Privy Council decisions only show that the rights of an execution purchaser are in many respects different from those of a purchaser at a private sale, but they do not afford any basis for the comprehensive rule of absence of estoppel against the execution purchaser deduced from them. We must, therefore, hold upon the decision of the Judicial Committee in Mahomed Mozuffer v. Kishori Mohun Roy 22 C. 909; L.R. 22 I.A. 129 (P. C), that the execution purchaser of the interest of the mortgagor is as much bound by the rule of estoppel not to dispute the validity of the mortgage, as the mortgagor himself. That the rule in question is based on a sound principle is obvious from the circumstance that it has been adopted in other systems of jurisprudence; for instance, it has been widely followed in American Courts, where it has been repeatedly held that the purchaser at an execution sale may take advantage of an estoppel arising from the deed by which the debtor acquired title and is in his turn estopped by the deed made by the debtor before the sale; in other words, the levying creditor is bound by an estoppel against the debtor as grantor. Morrison v. Caldwell 17 Am. Dec. 84; 5 T.B. Monree 426, Kimball v. Blaisdell 22 Am. Dec. 476; 15 New Hampshire 533, Gilliam v. Bird 49 Am. Dec. 379; 8 Iredell's Law 280, Knook v. Kelsey 22 Am. St. Reports 777, Morten v. Covell 10 Nebraska 423; 6 W.N. 477, Wright v. Phipps 70 Conn. 92: 68 Am. St. Rep. 87. The second defendant, as a purchaser in execution of a money decree of the right, title and interest of his judgment-debtor, the first defendant, is, consequently, bound by the same rule of estoppel as the first defendant himself, and he cannot question the validity of the mortgage any more than the mortgagor himself. The learned Vakil for the second defendant, however, strenuously contended that he was entitled to take up the some position as the Pals, who had purchased from the administrators. In our opinion, this position is untenable and it is difficult to imagine any intelligible principle, upon which it could, with any semblance of reason, be maintained. The second defendant denied the title of the Pals, successfully challenged the validity of their purchase and, by reason of the adverse decision of the court in the claim case, found himself in a position to seize the property as the property of his judgment-debtor. On what principle can he now turn round and say that he claims through the Pals or represents them. It may be true that, at the time when he successfully fought the Pals, he did not imagine for a moment that he might have to share the spoils of his victory with the present appellant; but there is no possible escape from the position that the property belonged either to the Pals or to his judgment-debtor and that the second alternative has been established by judicial decision at his invitation. By reason of the decision in the claim case the property has been treated as that of his judgment-debtor; and, by reason, of the failure of the administrators, as also of the Pals to contest the propriety of that decision within the time allowed by law, that conclusion has become final. That being so, the result is that the second defendant has purchased the property at the execution sale as the property of his judgment-debtor, and that as at the date when he effected the attachment, there was a pre-existing mortgage in favour of the plaintiff, the second defendant must be taken to have purchased the equity of redemption only, and not the entire interest of his judgment-debtor freed from the mortgage. The conclusion, therefore, is irresistible, so far as the first point on the merits is concerned, that the plaintiff has a valid subsisting security which he can enforce against the Mogulbagan property in the hands of the second defendant. We may add that the view we take is consistent with the manifest justice of the case. The Mogulbagan property covers about 66 bighas of land and is of considerable value. The Pals, in fact, paid one lakh and four thousand rupees for the property and indications are not wanting to show that they made a very favourable bargain, the Land Acquisition Judge having awarded over fifty-two thousand rupees as the value of eight and a half bighas. But even if we assume that the amount paid by the Pals affords a reasonable estimate of its true value, the one-third share of Abdus Samad, purchased by the second defendant, would be worth about Rs. 35,000, if taken free of encumbrances. Now in the sale proclamation, issued at the instance of the second defendant, the property was valued by him at Rs. 3,000 so that the one third share was valued at Rs. 1,000 and, at the execution sale he bought it for Rs. 802. His present contention, if it prevailed, would enable him to retain for this insignificant sum a property worth at least Rs. 35,000, freed from the substantial incumbrances in favour of the plaintiff and some of the defendants. No doubt, a speculative purchaser like the second defendant is entitled to the full benefit of hispurchase so far as the law allows. But it would, in our opinion, have been lamentable if we had ourselves been compelled by any technical rules of law to allow him to retain the property free of the mortgages created by the first defendant, for we do not feel the remotest doubt that when in his own execution proceedings, he valued the entire property at Rs. 3,000 and the one-third share of his judgment-debtor at Rs. 1,000, (for which he ultimately paid only Rs. 802), he must have known that the property was heavily encumbered and that all he could seize in execution was the bare equity of redemption.
8. The second point on the merits taken by the second defendant raises the question covered by the third issue, namely, whether the plaintiff released or abandoned his mortgage lien on the Mogulbagan property, which question we are invited to answer in the affirmative. In support of this invitation, reliance is placed mainly upon the fifth paragraph of the written statement of the plaintiff in the suit by the London and Lancashire Life Insurance Company and upon a passage from the deposition of Babu Jogeswar Sen, who acted as the solicitor of the plaintiff in the matter of the execution of the mortgage of the 16th September 1899. It is pointed out on the other hand, that the plaintiff himself deposed in the court below, that he had never released the Mogulbagan property from the mortgage lien and that there was never made to him any proposal for releasing it. It is further contended on behalf of the plaintiff that, in order to make a release of this description operative in law, it must be embodied in a registered instrument. After careful examination of the facts and circumstances disclosed in the evidence, we are of opinion, that the plaintiff never agreed to release Mogulbagan from his mortgage. It is to be observed that the theory of this release was very vaguely indicated in the written statement of the second defendant, in paragraph 8 of which it was stated that Rs. 2,000 was paid on the 28th January 1902 to the plaintiff, who on receipt of the same released his mortgage lien over the property in question. It is worthy of note that no mention is made here of the person by whom this sum of Rs. 2,000 was paid and with whom presumbly the alleged agreement was made. Moreover, although the onus lay entirely upon the defendant to establish the alleged release, no substantial evidence was adduced on his behalf to prove its truth. The fifth paragraph of the written statement of the plaintiff in the previous suit, upon which so much reliance was placed, is really not of much assistance to the second defendant. No doubt in that paragraph Debendra Nath made mention of the payment of Rs. 2,000; and asked that for the realization of his dues all the properties comprised in the mortgage security other than the Mogulbagan property might be sold. This by itself, however, is not conclusive, though it might raise a suspicion that there was probably some negotiation or arrangement with regard to that property. Such suspicion, however, can arise only on the assumption that Debendra Nath signed the written statement with full knowledge of its contents. On the other hand, he stated in his deposition that the written statement had been prepared in the office of his attorney and that he had signed it on the assurance that it was all right. Apart from the written statement, however, reliance is placed by the respondent upon the statement of Babu Jogeswar Sen to the effect that it had been arranged with Kailas Pal, that, on receipt of Rs. 2,000 out of the sale proceeds, the plaintiff would release the property. This statement is very specific as to the terms of the arrangement, but it does not show that the plaintiff was a party thereto. Indeed upon an examination of the whole of the evidence and of the circumstances of the case, it is manifest that the plaintiff was no party to any arrangement of the description suggested by the second defendant, though it is more than likely that there might have been some negotiations to that effect between the solicitor Babu Jogeswar Sen and the Pals. It appears from the record that, although Babu Jogeswar Sen received Rs. 2,000 from the administrators, probably out of the purchase money paid by the Pals on the 28th January 1902, he did not pay over the sum to the plaintiff till the 16th March 1903 and that only after repeated demands. It is difficult to believe that the plaintiff, even if at any time he was disposed to relinquish his lien upon the Mogulbagan property, would have consented to do so till he had received the money. There are also other circumstances which tend to throw doubt on the story of an agreement to release the lien over this particular property. In the first place there can be no question that this was the most valuable of the properties comprised in the security, and, that the portion of the mortgage debt leviable thereupon would be much in excess of the two thousand rupees paid; it is extremely unlikely that the plaintiff would consent to a release without payment of a proportionate sum; for, as was well said in Brooks v. Benbon, 70 Conn. 92; 66 Am. St. Rep. 87, if he did so he would act at his peril and even though he did not receive the proper contributory share of the debt, he would be still equitably chargeable with the receipt of that share in favour of the owners of the remaining parcels, Surjiram v. Berhamdeo 1 C.L.J. 337, Surjiram v. Barhamdeo 2 C.L.J. 202, Emam Ali v. Baijnath 3 C.L.J. 576. In the second place, it is equally unlikely that if the Pals or the administrators on their behalf paid two thousand rupees on the basis of a completed arrangement for the release of the property sold, they would not have insisted upon a registered instrument of release or, at least on some documentary proof of the agreement. The truth appears to be that Babu Jogeswar Sen received from the administrators Rs. 2,000 on the 28th January 1902, and he may at the time have held out hopes that the plaintiff would not proceed against that property in the hands of the Pals; but there is no substantial evidence to show that the plaintiff was aware of this or that he in any manner assented to the proposed arrangement. Babu Jogeswar Sen, on the other hand, detained the money for over a year, and it was with considerable difficulty that the plaintiff realized it from him. This also explains why the somewhat ambiguous statement, contained in the fifth paragraph of the written statement of the plaintiff, was drawn up in that form by his solicitor. We must hold, therefore, that the plaintiff personally was no party to any proposal or arrangement for the release of his mortgage lien over the Mogulbagan property, though it may be there were some negotiations, the details of which have not been disclosed to us, between the solicitor on the one hand and the administrators or the Pals on the other. It is impossible to ascertain what the details of this arrangement might have been, as no attempt to establish them by appropriate evidence has been made by the second defendant, who might easily have examined either the Pals or the administrators with a view to elucidate the point. Further investigation, however, into this point is unnecessary because, even if the solicitor entered into any such negotiations without the authority of the plaintiff, the latter would not in any way be liable. The solicitor had been employed solely for the purpose of the execution of the mortgage. He had no authority to receive payment of the mortgage debt, much less had he any authority to relinquish the mortgage lien over any portion of the mortgaged premises. A solicitor has no implied authority as such to receive payment of a mortgage debt, even though he may be authorized to receive payment of the interest and permitted to have possession of the mortgage deed. Wilkinson v. Condlish (1850) 5 Excts. 91, Kent v. Thomas (1856) 1 H. & N. 473, nor can he even if authorized to receive payment of a mortgage debt, take a cheque in lieu of cash, Blumberg v. Life Interests, &c.; Corporation (1897) 1 Ch. 171; 66 L.J. Ch. 127; 75 L.T. 627; 45 W.R. 246. Affirmed in (1898) 1 Ch. 27; 67 L.J. Ch. 118; 77 L.T. 506--C.A. As Lord Justice James said, in Suffron v. Rayner (1880) 14 Ch. Div. 406. There is a fallacy in supposing that there is such a thing as the office of a solicitor, that is to say, that a man has got a solicitor not as a person whom he employes to do some work for him, but as an official solicitor, and that, because the solicitor has been in the habit of acting for him and has been employed to do something for him, that solicitor is his agent to bind him by anything he says; a man has no more a solicitor in that sense than he has an accountant or baker or butcher; a person is a man's accountant or baker or butcher, when, the man chooses to employ or deal with him and in the matter so employed.' We must hold, therefore, that the solicitor, Babu Jogeswar Sen, who was employed for the purpose of the execution of the mortgage security, had no authority to receive payment therefor, much less had he any authority to enter into any agreement with the administrators or the Pals that upon payment of Rs. 2,000, the mortgagee would release the Mogulbagan property from the mortgage lien. In this view of the matter, we must hold that there was not in fact any agreement between the plaintiff and the administrators or the Pals for the release of the Mogulbagan property, though it is more than doubtful whether there was any such complete agreement between the solicitor of the plaintiff and the administrators of the Pals, and that in any event, even if there was any such arrangement, it is not binding upon the plaintiff appellant. It is, therefore, unnecessary to consider whether the second defendant can rely for his own benefit upon the alleged agreement for release, which, if ever entered into, must have been between the administrator or the Pals, on the one hand, and the solicitor or the plaintiff, on the other. But we may observe that, as already explained, the second defendant, as a purchaser of the right, title and interest of the mortgagor, does not occupy a position of advantage higher than that of the first defendant. It is difficult to appreciate how he can claim the benefit of any arrangement which, if ever entered into, was intended by the Pals for their own protection. He does not allege that he paid any portion of the Rs. 2,000, nor does he assert that he was a party to the alleged agreement or that he made his purchase at the execution sale in view thereof. He has throughout successfully set up a hostile title to that of the Pals and the administrators from whom the Pals had made their purchase. Upon what conceivable principle can he be now permitted to turn round and to claim the benefit of an agreement, which, if established could only benefit the Pals. An agreement to release a mortgage, if made for a consideration, binds the parties to it; but it does not bind a person not a party to it, and no such party could enforce it unless he was induced by it to purchase the property, to advance money upon it, or to do some act prejudicial to his interest. (Jones on Mortgages, Section 979, Snell v. Palmer 12 III. App. 337). It is also unnecessary in this view to examine in detail the additional contention of the plaintiff that a release of this character, in order that it may be operative, must be embodied in a registered instrument. But we may mention that it was argued with considerable force on behalf of the appellant that the release set up, if established, signifies in substance that the mortgage charge, which originally extended upon all the properties comprised in the security, is replaced by different charges upon different properties; the charge upon one of the properties is extinguished, and the whole of the balance of the original mortgage debt is thrown upon the remaining properties. As in the case before us, the property which is alleged to have been released was by far the most valuable of the items comprised in the security, and as the amount in consideration for which the lien is said to have been released was proportionately much less than what would be rateably leviable from that particular property, the result of the transaction, it was contended, would be that a burden considerably heavier than the original proportionate charge would be thrown upon the other properties. A transaction of this nature might, it was said, be treated in substance as a replacement of the old mortgage by a new security, which can be created only by a registered instrument under Section 58 of the Transfer of Property Act. It was further contended that, from another point of view, namely, from the point of view of the property released, the release might strictly be regarded as a transfer of the interest of the mortgagee to the mortgagor or his representatives; the holder of the equity of redemption, for the validity of which transaction, in view of Section 54 of the Transfer of Property Act, a registered instrument might be essential. The learned Vakil for the respondent, on the other hand, contended that no instrument is necessary in view of the decision in Goseti v. Varigonda 27 M. 368, and we also find that there is a dictum of this Court in Emam Ali v. Baijnath 3 C.L.J. 576, that a release may be effected by parol, though when it is effected by a written instrument, the latter may require registration. In neither of these two cases, however, was the matter presented before the Court from the point of view of Sections 54 and 58 of the Transfer of Property Act, but we observe that in the case before the Madras High Court, it was conceded that if the release was effected between all the parties to the original mortgage or all of their representatives, a written instrument would be essential. We further observe that there has been divergence of judicial opinion upon the subject; for instance, in Mutual Mill Insurance Company v. Gordon 121 Ill. 366; 12 N.E. 747, it was maintained that a written instrument was not necessary to effect a valid release, while in Brooks v. Benham 70 Conn. 92; 66 Am. St. Rep. 87, it was ruled that a written instrument would be essential to create an actionable obligation. As the decision of the question raised is not necessary for the purposes of this case, and, as the matter has not been argued with sufficient fulness, we reserve our opinion upon it. For the reasons already given we hold upon the second point taken upon the merits, that there has been no valid release of the Mogulbagan property, and that the plaintiff is still entitled to enforce his security against the portion thereof in the hands of the second defendant.
9. The third point on the merits, taken by the second defendant, raises the question whether he is entitled to claim as a matter of right that the mortgage debt be apportioned and distributed upon the several properties comprised in the security. The learned Vakil for the respondent contended that, as under Section 82 of the Transfer of Property Act, all the properties comprised in the security are liable to contribute rateably to the debt secured by the mortgage, an apportionment should be made in the present suit and the decree should entitle the plaintiff mortgagee to realize only a specific sum by sale of each of the properties concerned. In support of this view, reliance was placed upon the decision of this Court in Ramdhun v. Mohesh Chunder 9 C. 406. That case, however, is clearly distinguishable, as it merely affirmed the principle that when a decree has been made for the sale of the properties, comprised in a mortgage security, it is competent to the Court to direct the order in which the different premises shall be sold, so as to adjust the equities of the different parties interested in the equity of redemption as between themselves. This power to regulate the order of sale, which has sometimes been regarded as inherent in Courts of equity, (Erie County Savings Bank v. Roop 48 N.Y. 292 (299), Wiltsie on Mortgages, Section 503, Jones on Mortgage, Section 1576), is obviously of no assistance to the respondent. On the other hand, there is weighty authority, based on well established principle, which tends to negative his contention. It was ruled by this Court in the case of Roghu Nath v. Harlal 18 C. 320, that in a mortgage suit the defendants who had purchased the equity of redemption were not entitled to claim as a matter of right that the mortgage debt should be apportioned between the various mortgaged properties and that each of them should be allowed to redeem upon payment of his rateable share thereof. The same view has been adopted by the learned Judges of the Madras High Court in Krishna Ayyar v. Muthu Kumarasawmiya 29 M. 217, in which it was pointed out that there is nothing in the provisions of the Transfer of Property Act to support the view that, as between the mortgagee and the holders of the equity of redemption, the mortgagee is bound to distribute his debt rate-ably upon the mortgaged properties. A similar view was recently adopted by this court in Hara Coomari v. Eastern Mortgage and Agency Company 7 C.L.J. 274. The principle, upon which these decisions are founded, is that the mortgage security is entire and indivisible, and unless there are exceptional circumstances, the mortgagee cannot be compelled to break up the security. The general rule unquestionably is that a mortgagee cannot be required at the instance of a purchaser of part of the premises, to apportion his mortgage-debt among the several parts into which the property has been divided, and to look to each only for its proportionate share, unless circumstances have happened, the effect of which, in fact or in law, is to create a severance of the security. As illustrations of exceptions to the general rule, it may be mentioned that an apportionment will be directed where it is necessary for the benefit of one, who has taken a part of the property under necessity and for the protection of his own interest, or where the mortgagee himself has become the owner of a part of the equity of redemption, or where by his own conduct there has been a break up of the entire security. Thus, an apportionment has been directed, where as in Surjiram Marwari v. Barhamdeo 2 C.L.J. 202, a mortgagee has acquired, in whole or in part, the share of a mortgagor in the equity of redemption or where, as in Nawab Azimut Ali Khan v. Jowahir Singh 13 M.I.A. 404; 14 W.R. 17 (P.C.), a mortgagee has purchased the equity of redemption in one out of several properties comprised in the mortgage security, or where, as in Hakimlal v. Ramlal 6 C.L.J. 46 and Wilson v. Tartar 22 Oregon 504; 30 Pacific 499, a mortgage has gratuitously or otherwise released one of the joint mortgagors and his share of the property, or where, as in Gangadas v. Jagendra Nath 5 C.L.J. 315, Jugdea v. Habibullah 6 C.L.J. 612 and Lakshuman v. Madhav 15 B. 186, a mortgagee has enforced his security against all but one of the holders of the equity of redemption and purchased some of the properties himself, or where, as in Jawahir Singh v. Baldeo British Singh 6 C.L.J. 672, a partial redemption has previously been allowed, or whore, as in Dukes v. Turner 44 Iowa 575, the mortgagee has foreclosed a part of the premises and a redemption is sought of the remainder upon payment of the balance of the debt. But those cases only strengthen the general rule that the mortgagee cannot be compelled at the instance of every holder of a fragment of the equity of redemption to apportion his mortgage debt, a rule which has been regarded as based upon sound equitable principles in a series of cases in the American Courts, [Badby v. Tate 10 Robinson (La.) 45, Herzag v. Ball 62 Wis. 21; 21 N.W. 800, Tarbell v. Durant 61 Vermont 516; 17 Atlantic 44, Cotton v. Cotton 3 Phila. (Ra.) 24]. The test to be applied in each case is, whether there has been a severance of the security at the instance or with the consent of the mortgagee, and an apportionment will not be enforced upon the mortgagees unless special equitable considerations are established. Judged by this test, the contention of the second defendant must be pronounced entirely unfounded. He is a purchaser at a judicial sale of the equity of redemption of one of the several premises comprised in the mortgage security, he has taken the land burdened with the mortgage; upon what principle can he invite the mortgagee to look to some other fund to be applied to the discharge of the mortgage debt in order to relieve his estate? Krueger v. Ferry 41 N.J. Eq. 432. The learned Vakil for the respondent was pressed to indicate any special circumstances which might be urged in his favour so as to justify a restriction of the undoubted rights of the mortgagee, but he failed to make any suggestion for relief based on equitable considerations. We must hold, therefore, that the second defendant has not established any grounds upon which the plaintiff mortgagee can be called upon to apportion the mortgage debt upon the several parcels. We may further add that there are no materials on the record upon which any apportionment could be made, as the relative value of the properties comprised in the mortgage security has not been investigated. An order for apportionment, therefore, would necessarily imply a prolonged inquiry into this matter, and the mortgagee, not unnaturally, insists that the grant of relief to him should not be delayed, as the equities between the holders of the equity of redemption may and should be worked out in another litigation.
10. In addition to the points we have considered, our attention was invited to several minor points on the merits, to which a brief reference is necessary. One of the issues raised in the case was, whether the mortgage was executed for valuable consideration. The evidence upon this point is entirely one sided and it is established satisfactorily upon that evidence that there was full consideration for the mortgage. Another question raised in one of the issues was, whether there had been a second payment of Rs. 2,000 to the mortgagee, in addition to the first payment for which credit has been allowed in the plaint. Upon this point, also, the evidence is entirely one sided. There was only one payment made on the 28th January 1902, but as the money paid did not reach the hands of the mortgagee till the 16th March 1903, he has allowed credit for the payment on the latter date. The second defendant took advantage of this circumstance and urged in a supplementary written statement that there were two different payments on the two dates. No attempt, however, was made to prove this assertion and it is obviously unfounded.
11. A different question, raised in the fifth issue, was, whether the plaintiff was aware of the Land Acquisition proceedings, and whether he has any lien over the compensation money now in deposit in the Court of the Land Acquisition Judge. The plaintiff denies that he had any notice of the proceedings before the Land Acquisition Judge, and there is no reason why that statement should not be accepted as true. There can be no question that, when the land was converted into money, the lien or security was not destroyed by the transmutations; in support of this view, it is sufficient to refer to the principle embodied in Section 73 of the Transfer of Property Act, and deducible from the decisions in Douglas v. Collector of Benares 5 M.I.A. 271, Kristo Dass v. Ram Kant 6C. 142; Gosto Behari v. Shibnath 20 C. 241; Hem Chunder v. Thako Moni 20 C. 533; Berhamdeo v. Tara Chand 33 C. 92 (111). Indeed, the principle that the rights of a mortgagee are not destroyed by the mere transmutation of the subject matter of the security into a different form without his consent, is too firmly established to be seriously challenged and it has been expressly held applicable to cases of compulsory acquisition under the Land Acquisition Act. [Arumuganu v. Sivagnana 13.11.321 and Jatani v. Amarkrishna 6 C.L.J. 745; see also, Ranken v. East and West India, Docks (1849) 12 Beav. 298; Sherwood v. City of Lafayette 109 Ind. 411; 58 Am. Rep. 414.]
12. Another question, raised in the written statement of the first defendant but not covered by any of the issues, was whether the payment of Rs. 2,000 was rightly credited on the 16th March 1903. In our opinion, it was rightly credited on that date, for, as we have already explained, the solicitor into whose hands the money was paid on the 28th January 1902, had no authority to receive it, and it is not suggested that the money was so paid into his hands at the request of the plaintiff. The plaintiff is, consequently, entitled to claim interest till the date when the money actually came into his hands.
13. Another question, raised in the written statement of the second defendant, but not covered by any of the issues nor expressly mentioned in the arguments addressed to us, was, whether the plaintiff is entitled to proceed against the one-third share of Mogulbagun now in the hands of the second defendant or only against a seven-thirty second share thereof. The suggestion apparently was, that, as the father of the mortgagor left three sons, a widow and two daughters, the mortgagor had only a seven-thirty second share. It transpires, from the mortgage deed of the 16th September 1899, that the mortgagor did not hypothecate any specified share but only his right, title and interest in the properties; as his share was only seven-thirty second, the mortgagee evidently acquired a title to nothing more, and is now entitled to proceed against such share only, although the second defendant may have rightly or wrongly acquired an indefeasible title to a one-third share as against the widow and the daughters of the father of the mortgagor. The decree will, therefore, specify the seven-thirty second share, against which the mortgagee will be entitled to proceed and this is indeed all he asks for in his plaint.
14. The only other question which requires consideration is that raised in the seventh issue, namely, whether the mortgage of the fourth defendant is entitled to priority over the mortgage of the plaintiff. The mortgage, under which the fourth defendant claims, was executed on the 28th June 1899, while the security which the plaintiff seeks to enforce is dated the 16th September 1899. It must be remembered, however, that the consideration for this security was the debt due under the mortgage of the 10th February 1899, and upon well established principles, it must be held that to the extent of the sum covered by the earlier security the plaintiff is entitled to priority. When he took the security of the 16th September 1899, he must have intended to keep on foot the earlier lien, (Gokal Dass v. Puran Mal L.R. 11 I.A. 126; 10 C. 1035, Dinobandhu v. Jogmaya L.R. 29 I.A. 9; 29 C. 154 and other authorities reviewed in Surjiram v. Barhamdeo 2 C.L.J. 202 and 2 C.L.J. 288). The plaintiff must, therefore, be postponed to the fourth defendant to the extent of the five hundred rupees which was the fresh advance on the 16th September 1899. This also shows that the mortgages held by the sixth defendant are not entitled to priority over the mortgage of the plaintiff.
15. The result, therefore, is that this appeal must be allowed, the decree for dismissal, made by the court of first instance, discharged and the suit decreed with costs both here and below. A decree will be drawn up in accordance with Order 34, Rule 4, under the Code of Civil Procedure, 1908. The date fixed for payment will be six months from the date of this judgment. The decree will further declare that upon non-payment within the specified date, the plaintiff will be at liberty to proceed against a seven-thirty--second share of the properties mentioned in the mortgage security, whether such share is still in the form of land or in the shape of money in deposit in the Court of the Land Acquisition Judge, to the credit of the second defendant. The decree will also declare that as the Chitpore Road property has been already sold in execution of the prior mortgage decree, it cannot be resold, but the plaintiff can proceed against the surplus sale proceeds, if any be still available. If any question arises as to the mode in which accounts are to be taken of what is due to the plaintiff for principal and interest on the mortgage, the parties will be at liberty to speak to the minutes of the decree.