Full Judgment
Henry Richards and Pramada Charan Banerji, J.
1. The facts connected with the suit out of which this appeal arises are a little complicated, but they nevertheless may very shortly be stated. Tikam Singh made a mortgage in the year 1880 of a village called Kakna. A second mortgage was made in the year 1889 by the same Tikam Singh and five of his sons. A third mortgage was made in the year 1891 by the same Tikam Singh and two of his sons. The village was at that time joint family property. Subsequently the sons of Tikam Singh divided the village into a number of mahals. The mortgagee under the mortgage of 1880 brought a suit against Het Singh, one of the sons, with the result that his mahal was sold and the mortgage discharged. Het Singh brought a suit against his brothers and their children claiming contribution under Section 82 of the Transfer of Property Act and obtained a decree. In the meantime, however, the plaintiffs had discharged the two later mortgages and they brought the present suit claiming that they also had a charge under Section 82. It was useless to them to claim any charge against the mahal which had belonged to Het Singh, because that mahal had been sold in discharge of the first mortgage. A number of questions were gone into in the court below which, it appears to us, were not very relevant. The court of first instance granted the plaintiffs a decree. The lower appellate court modified the decree of the court of first instance by dismissing the suit of some of the plaintiffs, on the ground that they pleaded their claim as a set-off to the suit brought by Het Singh; that such plea was decided against them, and that accordingly on the principle of res judicata they could not now set up a claim which was disposed of in the previous litigation. Had it been necessary to decide the point, we doubt very much that we would have agreed with the lower appellate court on this question of set-off. It seems to us very doubtful whether under the circumstances of the present case the claim of the plaintiffs could have been 'set off' against the claim of Het Singh in the previous litigation. In the view we take of the case, however, it is unnecessary to decide this point. It seems to us that the only question which it is necessary to decide is the question of the priority of the charge of Het Singh. The mortgage of 1880 was not discharged until the 20th of April, 1907. If Het Singh's charge is to take priority as of this date, then it would appear to us that the plaintiffs would be entitled to make the ' interest of the defendants, i.e., their charge, contribute rateably to the discharge of the two mortgages of 1889 and 1891. On the other hand, if Het Singh's charge takes priority from the date of the mortgage of 1880 then the plaintiffs are not entitled to any charges under Section 82 of the Transfer of Property Act. The very question seems to have arisen in the case of Har Prasad v. Raghunandan Prasad (1908) I.L.R. 31 All. 166. At page 168 of the Judgment there is the following passage:
The next question is whether this charge can take priority over the plaintiff's mortgage. No doubt the charge came into existence when the mortgage was paid oft, but as the person who acquired the charge had discharged a prior mortgage, he acquired, we think, priority over an intermediate puisne mortgagee. There can be no doubt that a subsequent mortgagee, or the purchaser of the equity of redemption, who pays off a prior mortgage, acquires, on equitable grounds, priority over a puisne mortgagee On the principle of subrogation he is substituted for the prior mortgagee and acquires the rights of such mortgagee and the benefit of the securities held by him. We fail to see any difference in principle between the case of a subsequent mortgages or purchaser of the equity of redemption and that of a co-mortgagor who satisfies a prior mortgage. Both classes of persons relieve another and his property of the liability which attaches to them and the same principles of justice and equity which apply to the one class equally apply to the other.
2. Applying this principle to the present case, it would appear that the plaintiff's position cannot be placed higher than that of standing in the shoes of the mortgagees under the mortgages of 1889 and 1891, that is to say, that they are puisne to Het Singhand his successors in title, who for the purposes of the present claim stand in the shoes of the mortgagee under the mortgage of 1880 which was discharged by the sale of Het Singh's property. This being so, it is clear that none of the plaintiffs has any right against the parson or property of the defendants. The result is that we must dismiss this appeal with costs.