N.J. Wadia, J.
1. The suit from which this appeal arises was brought by the appellant to recover a sum of Rs. 5,998 as principal and Rs. 4,001 as interest from the suit property. His case was that the property in suit had been gifted to him by one Mahamad Asmal by a gift-deed on April 3, 1919. Prior to the gift-deed, there had been two mortgages in connection with the property : on March 14, 1918, part of the property had been mortgaged by Mahamad Asmal to the plaintiff himself for Rs. 999, and on November 29, 1918, the whole of the suit property was mortgaged by Mahamad Asmal to one Darasha for Rs. 4,999. The mortgage to Darasha provided that the mortgagee should pay off the prior mortgage of Rs. 999 to the plaintiff. One day prior to the passing of the gift-deed, on April 2, 1919, the mortgage to Darasha was paid off. On the mortgage-deed (exhibit 32) there is an endorsement that Isap Bapuji (the present plaintiff) had on that day (April 2, 1919) paid Rs. 4,999 on behalf of the mortgagor Mahamad Asmal and that the document duly endorsed as satisfied had been returned to the mortgagor Mahamad Asmal and the possession of the land had also been handed over to him. The plaintiff's case was that Mahamad Asmal had expressed a desire to make a gift of the property to him and had suggested that he should pay off Darasha's mortgage, and that it was in pursuance of this suggestion that the plaintiff had paid off the mortgage amount to Darasha, and on the next day the deed of gift (exhibit 55) was passed. Some months after the passing of the gift-deed, on December 17,. 1919, Mahamad Asmal executed a saledeed of the suit property in favour of, defendants Nos. 1 and 2 and Vali Bagas and Umar Ali, the pre-decessors-in-title of the other defendants in this suit. In that sale-deed the vendor said :
Isap Bapuji has got up a false deed of gift an my name by practising fraud, and has now produced the same, but the same is ineffective, and the possession of the property has never passed from me, and there has been no change (in the possession) of the same, but having taken advantage of my sickness, he practised deceit upon me and got up one fraudulent document.
2. The plaintiff brought suit No. 154 of 1923 on the strength of the gift-deed to him to recover possession of the property. The suit was dismissed and the decision was confirmed in appeal on October 9, 1929, by the High Court. After that he brought the present suit in which he claimed that he had a charge on the suit property for the amount of Rs. 5,998 paid by him to the mortgagee Darasha and interest on it amounting altogether to Rs. 9,999. The learned trial Judge held that the redemption of the property from Darasha was not by the plaintiff himself, but by the deceased Mahamad Asmal with money borrowed from the plaintiff, and that the amount paid to Mahamad Asmal by the plaintiff was not a charge on the property; that the plaintiff had no relation with the mortgagor Mahamad Asmal except that of an ordinary money-lender to a debtor so far as this transaction was concerned, and that there was no agreement, express or implied, nor was it even contemplated, that the plaintiff should be subrogated in place of the mortgagee. He therefore dismissed the suit.
3. Two grounds have been urged before us in the appeal. It is contended that the mere fact that the plaintiff had paid off Darasha's debt at the request of the mortgagor created an equitable charge on the property in his favour entitling him to recover the amount which he had paid to the mortgagee. It is contended also that in the circumstances in which the money had been paid by the plaintiff, it must be presumed that there was an agreement between e Pontiff and Mahamad Asmal that the plaintiff was to be subrogated to the rights of the mortgagee.
4. I will deal with the second point first. The evidence in the case does not support the contention that there was an agreement, express or implied, that the plaintiff was to be subrogated to the rights of the mortgagee. Plaintiff's own case is that Mahamad Asmal had told him that he intended to make a gift of the whole property in his favour and that he suggested to him that he should pay off the amount due to the mortgagee, so that possession of the property might be recovered by Mahamad Asmal before it could be gifted over to the plaintiff and on the next day, after the mortgagee had been paid of, a gift-deed was actually executed by Mahamad Asmal. It is clear therefore that at that time neither the plaintiff nor the mortgagor could possibly have had any intention of keeping alive the rights of the mortgagee in favour of the plaintiff, since they contemplated that as soon as the mortgagee was paid off, the full ownership of the property would be transferred to the plaintiff by the gift-deed. The endorsement on the mortgage deed and the evidence of the mortgagee Darasha show that the amount was paid to the mortgagee by the plaintiff on behalf of the mortgagor, and the mortgage deed duly endorsed and the mortgaged property were handed over to the mortgagor. The only inference one can draw from these facts is that the object of the mortgagor, and of the plaintiff himself at the time when Darasha was paid off, must have been to extinguish the rights of the mortgagee, and to secure the return of the property to the mortgagor himself, so that he could make a valid gift of it to the plaintiff. There is therefore nothing in the circumstances in which the money was paid which can justify us in saying that an implied agreement that the plaintiff was to be subrogated to the rights of the mortgagee should be presumed, and in fact the learned Counsel for the appellant has in his reply practically conceded that this contention of his cannot be supported by the evidence.
5. The other contention urged on behalf of the appellant is that the mere fact that he had paid off the debt at the request of the mortgagor must be taken to have created an equitable charge in his favour on the property. Section 92 of the Transfer of Property Act which deals with subrogation provides that a person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such person shall be so subrogated. This section was introduced into the Act for the first time by the Amending Act, Act XX of 1929. Prior to that the only provision in the Act dealing with the question was Section 74 which provided that any second or subsequent mortgagee may, at any time after the amount due on the next prior mortgage has become payable, tender such amount to the next prior mortgagee, and such mortgagee is bound to accept such tender and to give a receipt for such amount; and the subsequent mortgagee shall, on obtaining such receipt, acquire, in respect of the property, all the rights and powers of the mortgagee, as such, to whom he has made such tender. Admittedly that section could not help the plaintiff since he was not a subsequent mortgagee. The appellant's contention was that Section 92 of the Act could not apply to transactions which had taken place prior to April 1, 1930, on which date the Amending Act came into force, and that, therefore, the suit must be decided on equitable principles. In support of his contention that there was an equity created in favour by the payment of the mortgage amount to Darasha, reliance was placed on a decision of this Count in Tangya Fala v. Trimbak Daga. I.L.R. (1916) Bom. 646 : 18 Bom. L.R. 700. As this decision is the main basis of the appellant's case, it is necessary to refer to the facts of the case in some detail. The first defendant in that case had mortgaged his lands in 1893. In 1894, the mortgagee sued on the mortgage and obtained a decree for the mortgage amount, or in default, the sale of the property. In 1905 he applied for sale of the mortgaged property. About that time the plaintiff went into possession of the lands on a ten years' lease from the first defendant. Shortly afterwards defendant No. 2, who held a money decree against defendant No. 1, brought the property to sale and purchased it himself. In 1907, the property was put up to sale in execution of the mortgagee's decree. But defendant No. 1 borrowed a sum of Rs. 2,463 from the plaintiff and paid off the mortgagee. Subsequently defendant No. 1 sold a portion of the property mortgaged to plaintiff for Rs. 4,000, the consideration being made up of Rs. 2,463 with other sums lent to defendant No. 1 personally. In 1908 defendant No. 2 sued the plaintiff who was in possession of the land as lessee to recover possession, and obtained possession. The plaintiff thereupon filed the suit to recover the amount of Rs. 4,000 from the defendants personally or by sale of the property. It was held that the land in possession of defendant No. 2 was chargeable with the sum of Rs. 2,463 which the plaintiff had lent to the first defendant for paying off the mortgagee, because the plaintiff being a stranger who paid off a subsisting mortgage was entitled to be subrogated to the position of the mortgagee. In the course of his judgment Mr. Justice Batchelor, dealing with the contention based upon the equitable doctrine allowing a stranger who pays off a subsisting mortgage to be subrogated to the position of the mortgagee, said (p. 652) :
The mortgage pf Atmaram was paid off with the help of the plaintiff's moneys by the first defendant, and it cannot, in my opinion, be doubted that the first defendant had an interest in paying off that mortgage. Therefore, if the doctrine is made out, the first defendant could claim to stand in the mortgagee's shoes, and if that be so, the same position would be occupied by the plaintiff who claims through the first defendant and whose moneys were advanced to the first defendant precisely in order that Atmaram's mortgage should be discharged.
In support of the view which he took of the equitable doctrine relied upon, he referred to the decision of Mr. Justice Warrington in Butler v. Rice [1910] 2 Ch. 277. At first sight it appears as if the decision in Tangya Fala v. Trimbak Daga supports the appellant's contention, but there is a distinction with regard to the facts. The claim in connection with the charge in that case was not based merely on the fact that the first defendant had paid off the prior mortgage.
There was evidence, which the Court accepted, to show that the parties had intended that the mortgage was to be kept alive for the benefit of the first defendant with whose money it was paid off. Mr. Justice Batchelor in dealing with this point said (p. 653) :
It was contended in argument that mortgages in these cases are only kept alive where the charge is paid off at the express or implied request of the mortgagor That argument, however, was rejected by Mr. Justice Warrington, who observed that the statement of claim, or as we should say the plaint, proceeded on the well-known equitable doctrine that if a stranger pays off a mortgage on an estate, he presumably does not intend to discharge that mortgage but to keep it alive for his own benefit. I pause to observe that in our own case we have not only that presumption, but the sworn testimony of the plaintiff that such was in fact his intention.
6. This circumstance distinguishes that case from the one before us. I have already shown that there is nothing in the evidence in this case which could justify the Court in presuming that there was an implied agreement between the mortgagor and the plaintiff that the latter was to be subrogated to the rights of the mortgagee Darasha, who had been paid off with the plaintiff's money.
7. Several cases have been cited before us in support of the appellant's contention, but none of them goes so far as to say that the mere fact that a stranger has paid off a mortgage debt at the request of the mortgagor creates a charge in his favour on the mortgaged property or has the effect of subrogating him to the rights of the mortgagee. The authorities on this question have been examined at some length by Mr. Justice Sundara Ayyar in Narayana Kutti Goundan v. Pechiammal. I.L.R. (1911) Mad. 426. After discussing the decision of Warrington J. in Butler v. Rice, which has been referred to in Tmgya Fala V. Trimbak Daga, and which he thought went too far, he referred to the rule with regard to subrogation as stated by Sheldon in his book on Subrogation (p. 433) :
Whenever a payment is made by a stranger to a creditor in the expectation of being substituted to the place of the creditor, he is entitled to such substitution. But the doctrine generally adopted, and that of these very cases when limited to the point actually decided, is that a conventional subrogation can result only from a direct agreement, express or implied, made with either the creditor or debtor, and it is not sufficient that a person paying the debt of another should have merely an understanding on his part that he is to be subrogated to the rights of the creditor, though, if the agreement have been made, a formal assignment will not be necessary.
The learned Judge then pointed out that in India the scope of the rule appeared to be narrower still; and that a mere agreement, either with the creditor holding a mortgage or with the debtor owing it, cannot give a person lending money to discharge the mortgage a lien over the property. The conclusion at which he arrived was stated by him as follows (p. 434) :-
The principle contended for by the appellant that the mere payment of a mortgage debt by a stranger would entitle him to the mortgagees' rights by subrogation has always been negatived in India : See Ram Tuhul Singh v. Biseswar Lall Sahoo . It is impossible to argue that it is open to any meddler to claim a lien by discharging a mortgage with which he has no concern. I must there fore overrule the contention that the plaintiff can claim to be subrogated to the rights either of the daughters or of Muthu Goundan by the mere fact that he discharged the mortgage of the latter.
It is to be noted that in this case the plaintiff had paid off the mortgage amount at the request of the daughters who were the reversiqners. The same view was taken by the Calcutta High Court in Gurdeo Singh V. Chand-rikah Singh and Chandrikah Singh v. Rashbehmy Singh I.L.R. (1907) Cal. 193, in which it was held that to entitle one to invoke the equitable right of subrogation, he must either occupy the position of a surety of the debt or must have made the payment under an agreement with the debtor or creditor that he should receive and hold an assignment of the debt as security, or he must stand in such a relation to the mortgaged premises that his interest cannot other' wise be adequately protected; and that the doctrine of subrogation is not applied for the mere stranger or volunteer, who has paid the debt of another, without any assignment or agreement for subrogation, being under no obligation to make the payment and not being compelled to do so for the preservation of any rights or property of his own. In my opinion the contention, that the mere fact that the plaintiff had paid off Darasha's mortgage debt created an equitable charge in his favour on the property for the amount of the mortgage debt without any express or implied agreement to be subrogated to the rights of the mortgagee, is unsupported by authority and cannot be allowed.
8. There is also another ground on which the appellant's case must fail. This suit was filed after the Transfer of Property Act was amended by the Amending Act XX of 1929. Section 92 of the amended Act provides that a person, who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such person shall be so subrogated. Section 63 of the Amending Act provides that nothing in any of the provisions of the Act which are mentioned shall be deemed in any way to affect (a) the terms or incidents of any transfer of property made or effected before the first day of April, 1930 (b) the validity, invalidity, effect or consequences of anything already done or suffered before the aforesaid date (c) any right, title, obligation or liability already acquired, accrued or incurred before such date, or (d) any remedy or proceeding in respect of such right, title, obligation or liability. The provisions mentioned do not include Section 47 by which Section 92 of the present. Act was enacted. Section 63 goes on to say that nothing in any other provision of the Act shall render invalid or in any way affect anything already done before April 1, 1930, in any proceeding pending in a Court on that date. It would appear from this that Section 92 of the present Act has restrospective effect and this view has been taken by a full bench of the Allahabad High Court in Tota Ram v. Ram Lal I.L.R. (1932) All. 897. It was held in that case that Section 92 of the Transfer of Property Act, as introduced by the amending Act XX of 1929, has retrospective effect. We have been referred to a decision of the Patna High Court in Jagdeo Sahu v. Mahabir Prasad I.L.R. (1933) Pat. 111, in which a division bench of that Court took the contrary view and held that Section 92 of the Transfer of Property Act, 1882, which came into force in 1930, did not apply to a case in which the rights which the defendant claimed had already vested in him before that date. No reasons have been given for the view which was taken, nor is Section 63 of the Amending Act referred to at all. I am with respect of the opinion that the view taken by the Allahabad High Court is correct and that Section 92 has retrospective effect so far as the case before us is concerned. Even, however, if this view were not correct, the principles underlying Section 92 would have to be accepted as a guide in deciding what the equitable doctrine with regard to subrogation prior to the introduction of Section 92 was, as was held by the full bench of the Allahabad High Court (p. 904) :
Supposing, however, that the said sections (Sections 92 and 101) have no retrospective effect, we have gat this position. This Court itself was divided as to the rule of subrogation in the circumstances of this case and there are conflicting decisions of other High Courts. Opinion is likely to differ as to how far the Privy Council cases in Dinobundhu Shaw Chowdhry v. Jogmaya Dasi I.L.R. (1901) Cal. 154 : 4 Bom. L.R. 238, and Mahomed Ibrahim Hossain Khan v. Ambika Prashad Singh I.L.R. (1912) Cal. 527: 14 Bom, L.R. 280, quoted above affect the decisions of the High Courts. In the circumstances, the rule laid down by the legislature would be a safe guide to follow as laying down correctly the rule of justice, equity and good conscience for cases arising before the passing of Act XX of 1929.
9. The view taken by the learned trial Judge is, therefore, in my opinion, correct and the appeal must fail.
10. There is still another ground on which the plaintiff's appeal would have to be dismissed. Our attention was drawn by the learned Counsel for the respondents to a decision of this Court in Chhotcdal Karsandas v. Vishnu Gmesh. I.L.R. (1920) Bom. 597 : 23 Bom. L.R. 84. The plaintiff had brought a suit in 1914 for sale of the mortgaged property on the ground that a payment made by him in 1901 to the mortgagor to pay off a prior mortgage created a charge on the property to the extent of the money advanced. It was held that the payment made in 1901 enabled the plaintiff to establish his right to a charge on the property, but the mere payment would not give the plaintiff any right against the property either to go into possession, or to sell it, that he was bound to ask for a declaratory decree that a charge was created before the Court could have jurisdiction over the property, and that such ask for a declaratory decree would be governed by Article 120 of the Indian Limitation Act and was therefore barred, not having been brought within six years from the date of the payment, In the present case the plaintiff's right to sue with regard to the charge accrued on December 2, 1919, when he made the payment, He could not sue to enforce the charge without first asking for a declaration of it and the suit for declaration would be clearly time-barred.
11. The appeal fails and should, in my opinion, be dismissed with costs.
Broomfield, J.
12. I see no reason to doubt that the plaintiff advanced the money to discharge Darasha's mortgage on behalf of and at the request of the mortgagor Mahamad Asmal. The question is whether the plaintiff is subrogated to the position of the mortgagee, i. e., is entitled to the benefit of the discharged security. It is not the plaintiff's case, or at any rate it is not proved, that there was any agreement between the plaintiff and Mahamad Asmal that the mortgage was to be kept alive for plaintiff's benefit. On the contrary the position is that Mahamad Asmal promised to make a gift of the land to the plaintiff, and the object of paying off the mortgage was not to keep the security alive but to enable the mortgagor to make a gift of the property to the plaintiff, complying with the requirements of the Mahomedan law in respect of possession. It cannot be said that the plaintiff himself had any intention of keeping the mortgage alive under the circumstances. His desire was that the mortgage was to be extinguished in order that the transfer to him might take place. In all probability the parties never even thought of keeping the mortgage alive. The gift to the plaintiff followedalmost at once on the following day. Under these circumstances the plaintiff can only rely on the bare fact that he discharged the mortgage at the request of the mortgagor.
13. In support of the argument that he thereby acquired a right of subrogation reliance has been placed on Tangya Fala v. Trimbak Daga I.L.R. (1916) Bom. 646, 18 Bom. L.R. 700, and Butler v. Rice. [1910] 2 Ch. 277. The person who lent the money in Tangya Fala v. Trimbak Daga being a lessee from the mortgagor under a lease for ten years had a legal interest in the mortgaged property which he was entitled to protect and that, it would seem, would bring the case within the doctrine of subrogation as explained in Narayana Kutti Goundan v. Pechiammal I.L.R. (1911) Mad. 426. Gurdeo Singh v. Chandrikah Singh and Chandrikah Singh v. Rashbehary Singh. I.L.R. (1907) Cal. 193. Besides what were the facts in Tangya Fala v. Trimbak Daga in other respects? The circumstances justified the presumption that the person who had paid off the mortgage had not intended to discharge it but to keep it alive for his own benefit. Not only was that the presumption but there was sworn testimony, the sworn testimony of the person concerned, to that effect. And what was the principle deduced from the case of Butler v. Rice? It is stated by Mr. Justice Batchelor in his judgment (p. 653) :-
The well-known equitable doctrine that if a stranger pays off a mortgage on an estate, he presumably does not intend to discharge that mortgage but to keep it alive for his own benefit.
14. Both these cases therefore are clearly distinguishable on the facts and in respect of the principles to be applied, because in the present case it was evidently not the intention of either party that the mortgage should be kept alive. The decisions of the Madras High Court, Narayana Kutti Goundan v. Pechiammal and Adari Sanyasi v. Nookalamma I.L.R. (1930) Mad. 708, and of the Calcutta High Court, Gurdeo Singh v. Chandrikah Singh, are clearly in favour of the view which has been taken by the learned trial Judge.
15. As regards the question whether Section 92 of the Transfer of Property Act is to be regarded as retrospective, I prefer not to express a decided opinion, although I agree with my learned brother that the reasoning of the learned Judges of the Allahabad High Court in Tota Ram v. Ram Lal I.L.R. (1932) All. 897, is preferable to that in Jagdeo Sahu v. Mahabir Prasad. I.L.R. (1933) Pat. 111. In fact in the latter case the point has not been really discussed and there is no reference to the vital Section 63 of Act XX of 1929. In any case I agree, with respect, with the view taken by the full been of the Allahabad High Court that whether Section 92 is retrospective or not, it ought to be taken as a guide for determining in cases where there is a conflict of authority what equitable rules not inconsistent with the Transfer of Property Act should be adopted as valid in this country.
16. The principle laid down in Chhotalal Karsandas v. Vishnu Ganesh I.L.R. (1920) Bom. 597: 23 Bom. L.R. 84, viz. that in a case of this kind it is necessary for a person claiming the right of subrogation to get a declaration from the Court, the suit for which must be brought within six years under Article 120, is undoubtedly a difficulty in the plaintiff's way. It seems to me that you could only get out of that difficulty by suggesting that the right to subrogation arose, in the alternative so to speak, after the real intention of the lender of the money had been frustrated when he failed to establish his claim under the gift-deed. If it were possible to take that view it might be argued that the cause of action only arose on the final determination of the litigation about the gift-deed. But that would certainly be a strange view to take and no authority has been cited in support of it.
17. I agree that the appeal fails and must be dismissed with costs.