1. This was a suit by the plaintiff under Section 283. of the C.P.C. for declaration that a third share of certain properties was mortgaged to him on 3rd Chaitra 1309 for Rs. 10,000 and that the purchase of such properties by defendant No. 1 at a sale in execution was subject to the plaintiff's mortgage lien. The plaintiff also played that as he had paid off a prior mortgage decree for Rs. 5,604 on the entire property, it might be declared that defendant No. 1 purchased subject at least to the liability for that sum with interest. The only question before us is whether plaintiff can be allowed the priority of the mortgagee whose decree was paid off to the extent of the Rs. 5,604 due on that mortgage. Both the lower Courts have concurred in holding that the plaintiff had no intention, when that prior debt was paid off, of keeping that security alive for his own benefit, and they have accordingly dismissed the suit. Against that decision the plaintiff has preferred this second appeal.
2. The facts as found are shortly these:On 29th Jaisto 1301 (1894) defendant No. 2 and his co-sharer Ghanashyam Mandal and others mortgaged their undivided property to one Rakhal Das Addy for Rs. 4,000. In 1900 Rakhal Das Addy filed a suit on his mortgage and obtained a decree. Shortly afterwards that decree was assigned to Nritya Gopal Rai. In 1901 Nritya Gopal Rai executed his decree and brought the mortgaged properties to sale. They were bought by defendant No. 1 who also held a money decree against defendant No. 2 and his co-sharers. Defendant No. 2 applied to have the sale set aside. On 11th and 12th March 1903, while that application was pending, defendant No. 1 attached the same properties in execution of his own money decree. Five days later, on 16th March, defendant No. 2's application was granted and the sale to defendant No. 1 set aside. On 17th March 1903, defendant No. 2 mortgaged his l-3rd share in the properties to the plaintiff to secure Rs. 10,000 and interest. On 19th March 1903, out of these Rs. 10,000 Nritya Gopal Rai's mortgage decree of Rs. 5,604 was paid off and satisfaction entered on that decree. Plaintiff then filed a claim under Sections 278, 282, that the attachment by defendant No. 1 should be subject to his mortgage, This was disallowed on 19th May 1903, and on 11th April 1904 this suit was filed.
3. It has been found that the plaintiff's mortgage for Rs. 10,000 was a genuine transaction, and that finding we must accept. There appears also to be no doubt that part of the Rs. 10,000 was used for paying off the amount due on Nritya Gopal Rai's decree. Turning to the question before us whether the plaintiff has acquired the right to stand in the place of the prior mortgagee Nritya Gopal Rai, it is of course a question of intention. The mere fact of the prior mortgage being paid off with the plaintiff's loan is not sufficient (see Ghose on Mortgage, p. 402). It must be clearly proved that the persons claiming the priority paid off the prior incumbrance with the express intention of keeping it alive for his own benefit. Such an intention may no doubt be inferred from the circumstances of the case, though it is more satisfactory when it is found expressed in the subsequent mortgage-deed or other document. Here, except for the mere fact that the mortgage-decree was paid off out of the Rs. 10,000 advanced by the plaintiff all the circumstances are against his present contention. There is no doubt authority for the proposition that a puisne incumbrancer may keep alive a prior incumbrance for his own benefit even though it has taken the form of a decree; see Surjiram Marwari v. Barhamdeo Persad 2 C.L.J. 202. Here, however, we have the fact that the mortgage decree was paid off, presumably by defendant No. 2 and full satisfaction entered thereon. Nothing was said or done at that time which would give plaintiff any, interest in that security Nor is it easy to see what he could have done towards asserting a lien in respect of a decree which had been fully discharged. There is the further fact that plaintiff accepted a particular and different security for, his own loan, namely, the l-3rd share of his mortgagor. This transaction was complete before the decree was paid off and was independent of it. The security for the two debts was different and the plaintiff is now in effect claiming a lien over all the properties while his mortgage was only on a l-3rd share. We are also told that the rates of interest were different, the prior mortgage being at 15 p.c. and the plaintiff's at 24 p.c. per annum. This case is very similar in its facts to the case of Mohesh Lal v. Mohant Bawan Das L.R, 10 I, A. 62; 9 C, 9 61; 13 C.L.R. 221, where their Lordships of the Privy Council held that the prior mortgage which was paid off out of moneys advanced by the plaintiff was extinguished. In the present case we have the additional fact that the prior mortgage had taken the form of a decree, which appears to us to militate against the plaintiff's present contention that he intended to keep it alive. If he did so intend, he should have taken an assignment of the decree and not have allowed it to be satisfied until he had done so. Under these circumstances, we see no reason to differ from the conclusion at which the lower Courts have arrived that the plaintiff here had no such intention, as he now professes. It was really an after thought on his part. Finding that his own mortgage lien was not sufficient, he endeavoured in this suit to assume the position of the prior incumbrancer whose mortgage had in fact been extinguished. This was the only point urged before us on this appeal, which accordingly fails and is dismissed with costs.
4. I have read the judgment of my learned colleague, and, while I agree with him that the appeal should be dismissed with costs, I wish to add a few words to his judgment.
2. The original claim in this suit was (1) for a declaration that l-3rd of certain property purchased by the defendant No. 1 was subject to a lien for Rs. 10,000 by reason of a mortgage executed in the plaintiff's favour by a previous owner, the defendant No. 2 Dwarka Nath Mondal, in 1309, and. (2) for a declaration that, in any case, the defendant No. 1's purchase of the said property was subject to a mortgage lien of Rs. 5,604 which sum had been paid by the plaintiff to redeem the said property from a mortgage executed in 1301, i.e., prior to the attachment and sale by virtue of which defendant No. 1 claims the said property.
3. The first contention was given up in this Court entirely, and was not argued. We have, therefore, only to consider the second point, viz., whether the plaintiff in regard to the sum of Rs. 5,604 is entitled to claim the rights held by the prior mortgagee. It is urged on the side of the appellant that the pro forma defendant, Dwarka Nath Mondal, had a right to redeem the mortgage of 1301, and that he could assign to the plaintiff any lien on the mortgaged property which he acquired by virtue of that repayment. The learned pleader for the appellant further urges that, as it was to the benefit of the plaintiff to take an assignment of, and keep alive the old mortgage, the Court should presume that there was such an arrangement, and that, therefore, there was no extinction of the old security when the deed of 1309 was executed; but, in the particular circumstances of this case, the mere fact that the old mortgage dues were paid by the defendant No. 1 out of the money borrowed from the plaintiff cannot give rise to a presumption that there was any intention to assign the old mortgage to the plaintiff, or to keep the prior mortgage alive. There is, I may note, no mention of any assignment of the prior mortgage in the deed of 1309, and there are other circumstances which indicate that the intention of the party was to satisfy that debt, extinguish the old mortgage and accept a new security at an increased rate of interest in place of the old security. Among these circumstances I may note the following:
(1) All the mortgagors in the first case did not execute the second mortgage deed;
(2). The property mortgaged in the second deed is not the same as that mortgaged in the first;
(3). The interest payable on the second deed is at a higher rate than that specified in the first; and
(4). The dues under the first deed had, at the time the second deed was executed, become merged in a mortgage decree which decree was fully satisfied out of the money advanced on the new security.
4. In these circumstances, following the case reported as Mohesh Lal v. Mohant Bawan Das L.R., 10 I, A. 62; 9 C, 9 61; 13 C.L.R. 221 and a number of decisions of the Bombay High Court, it appears that in the present case the mere fact that the money borrowed by the defendant No. 2 was used to pay off an old mortgage, cannot entitle the lender to the benefit of the discharged security. The case reported in Dinobundhu Shaw Chowdhury v. Jogmaya Dasi 29 C. 154 is clearly distinguishable from the present case, as there was in that case a covenant to make over the prior mortgage deeds to the new creditor, and the property mortgaged on the second occasion was the same as that mortgaged under the prior deeds.
5. In those circumstances, and bearing in mind the fact that it has been definitely found by the lower appellate Court that it was not the intention of the plaintiff to keep alive the prior mortgage of 1301, 1 think that the plaintiff is not entitled to succeed in this appeal, and, I am of opinion, with my learned colleague, that the same should be dismissed with costs.