Sinha, J.

1. This appeal on behalf of the defendants-first party is directed against the judgment and decree, dated 30th December 1945, passed by the learned Subordinate Judge of Muzaffarpur confirming those of the Munsif of Sitamarhi in a suit for redemption.

2. It appears that, by virtue of a usufructuary mortgage bond dated, 25th October 1933 (EX. A-5), the defendants-second party mortgaged portions of the land in dispute to the defendants-first-party, securing a sum of Rs. 1,250. Out of that sum, Rs. 520 was paid in cash to the mortgagors, and Rs. 730 was left in deposit with the mortgagees to redeem two previous mortgage bonds of one Aklu Sabu, one for Rs. 260 and the other for Rs. 67, as also to pay RS. 413 to a third party in respect of a decretal debt. The document provided further that the money will become payable in the month of baisakh 1346 Fasli on the expiry of the term of six years, for which the mortgagees were put in possession of the property. The rehan deed contained the further stipulations in these terms:

"It may be noted that whenever necessity arises the rehandars shall demand the principal rehan money at any time from us, the executants, and we, the executants, shall repay the same without any consideration to the term of this deed. In case of non-payment of the principal rehan money, the rehandars are and shall be competent to realise the principal rehan money besides the costs in Court by means of the mortgaged property or from the person, assets and other properties. We, the executants, or our heirs shall pay the same without any objection."

The document contained the following recital as regards the mortgage bond in favour of one Madho Miesir, which is one of the subject matters of dispute between the parties:

"The registered rehan dead dated 13th June 1930, which is possessed by us, the executants, was executed by way of farzi transaction which has been made over to, and shall remain with, the said mahajans."

It will be noticed that this so-called rehan deed does not contain any reference to a previous mortgage bond (EX. A 1), dated 18th November 1931 for RS. 800 executed by the defendants, second party in favour of the said Aklu Sahu. That is another transaction which has been the subject-matter of controversy between the parties to this deed, as will presently appear.

3. The plaintiffs-respondents are the purchasers from the defendants-second party of portions of the mortgaged property by virtue of two sale-deeds of the year 1943. The plaintiffs deposited Rs. 1,250 the principal sum secured by the mortgage bond of the year 1933 aforesaid, in Court under Section 83, T. P. Act. They have instituted the suit for redemption of the portion of the mortgaged property purchased by them, and for mesne profits for 1360 Fasli, the year previous to the date of the institution of the suit (24th August 1943) as also for future mesne profits.

4. The first party defendants contested the suit, chiefly on the ground that the deposit of RS. 1,230 wad not sufficient to liquidate the dues of the defendants-first party, inasmuch as, apart from the one thousand two hundred fifty rupees covered by the mortgage deed of 1933, they had redeemed the previous mortgage bond for Rs. 800 in favour of Aklu Sahu, which covered a portion of the property mortgaged to them; and had further redeemed the mortgage bond in favour of Madho Misair, referred to above. These defendants stated that, though the mortgagors, the plaintiffs' predecessors-in-interest, had characterized the mortgage of Madho Missir as a farzi transaction, Madho Missir instituted a suit on that mortgage, and obtained a decree for sale. Hence, in order to avoid the sale of a portion of the mortgaged property, these defendants deposited the decretal amount in Court on 6th May 1944, that is, during the pendency of the present suit. Hence, the plaintiffs' right to redeem the mortgage in question has not been seriously challenged: what has been contended is that the plaintiffs are not entitled to redeem on payment only of Rs. 1,260 but that they are liable to pay the eight hundred rupees, which the defendants, first party paid to Aklu Sabu as aforesaid, as also the sum of Rs. 603 odd deposited by them to the credit of Madho Missir in respect of his mortgage decree aforesaid.

5. Both the Courts below have taken the view that, though the defendants-first party paid those sums of money, as claimed by them, to Aklu Sahu and to Madho Missir, they are not entitled, under the terms of the mortgage bond of 1933, to be reimbursed in respect of those payments, as the transaction in favour of the contesting defendants was in the nature of an anomalous mortgage. The Courts below, therefore, took the view that Section 98, T. P. Act, excluded the operation of Sections 72 and 92, T. P. Act. The plaintiffs' suit, therefore, has been decreed for redemption on the finding that the deposit of Rs. 1,250 was a proper deposit. There has also been a decree for mesne profits. Hence this second appeal by the defendants-first party.

6. It has been contended by learned counsel for the appellants that the decree for redemption and mesne profits passed by the Courts below on payment of Rs. 1,250 only is not only unjust to the appellants but is in defiance of the provisions of Sections 72 and 92, T. P. Act. In other words, it is contended on behalf of the appellants that they paid Rs. 800 to Aklu Sahu in respect of the usufructuary mortgage bond of 1931, as, without that payment, they could not obtain possession of a portion of the mortgaged property, and that, if they had not paid up the mortgage decree of Madho Missir in respect of the mortgage bond of 1930, the mortgaged property would have been sold, and the defendants deprived of their security. To this, learned counsel for the respondents replies by contending that, the mortgage in favour of the appellants being in the nature of an anomalous one, the parties are governed by the provisions of the deed itself, and that, therefore, the provisions of Sections 72 and 92, T. P. Act, are out of the way. Hence, it is necessary first to consider whether the provisions of those sections of the Transfer of Property Act are excluded in the case of an anomalous mortgage. It is true that, in the case of an anomalous mortgage, under the provisions of Section 98, T. P. Act, the rights and liabilities of the parties are governed by their contract as evidenced in the deed itself, and by local usage in the absence of a contract. But the question naturally arises--does Section 98 exclude the operation of other provisions of the Transfer of Property Act in so far as they may be applicable to the transaction in question on matters not covered by the contract between the parties as evidenced in the mortgage deed ? Counsel for the respondents has gone the entire length of contending for that proposition. On the other band, it has been contended on behalf of the appellants that Section 98 does not altogether exclude the operation of the other relevant provisions of the Act in so far as they are not inconsistent with the contract embodied in the deed. Reliance has been placed upon the decision of their Lordships of the Judicial Committee in the case of Mohammad Sher Khan v. Swami Dayal 49 I. A. 60 : A. I. R. 1922 P. C. 17 . In that case, their Lordships of the Judicial Committee made the following observations with reference to the provisions of Section 60, T. P. Act:

"The section is unqualified in its terms, and contains no saving provision as other sections do in favour of contracts to the contrary. Their Lordships therefore see no sufficient reason for withholding from the words of the section their full force and effect, iN This view the mortgagor's right to redeem must be affirmed. . . ."

In that case, one of the points in controversy between the parties was whether or not the mortgage then under discussion was an anomalous one. For the purposes of their decision, their Lordships assumed without deciding that question that the mortgage was an anomalous one. The ratio decidendi in that case was that, even though there may have been a contract to the contrary in the bond in question, if a term in that contract offended against the statutory right of redemption conferred by Section 60, the statutory right must prevail over the stipulations in the deed. The present case is stronger than the case before their Lordships of the Judicial Committee in the sense that in the mortgage deed there is no stipulation curtailing the rights given by Sections 72 and 92, T. P. Act. In Section 72, the provisions are subject to a contract to the contrary. There is no contract to the contrary in the present case. In Section 92, T. P. Act, there is no saving clause like that in Section 72, though Para. 3 of Section 92, with which we are not concerned here, provides that a right of subrogation can be claimed only where there is a specific agreement that such a right may be claimed. But Para. 3 applies to cases where the money, with which the previous mortgage is redeemed, is advanced to the mortgagor by the person who seeks to be subrogated to the rights of the prior mortgagee, that is to say, in the case of what is generally known as "conventional" or "contractual" subrogation. In the present case, we ate concerned with the provisions of Para. 1 of Section 92 which deals with the case of what is generally known as "legal" subrogation. The latter kind of subrogation rests upon the doctrines of equity and principles of natural justice, and not on privity of contract. The mortgage bond in question in the present case is completely silent about the mortgage of the year 1931 in favour of Aklu Sahu, which was redeemed by the appellants.

7. It is true that covenant excludes subrogation, that is to say, conventional subrogation must be by special agreement between the parties. In the absence of such an agreement in cases covered by the provisions of para. 3 of Section 92, T. P. Act, there can be no subrogation. It may also be that the parties to an anomalous mortgage bond may agree to exclude the right of subrogation dealt with in the Para. 1 of Section 92, though, by parity of reasons, it may be doubted whether this proposition is absolutely correct, in view of the observations of their Lordships of the Judicial Committee quoted above. But that question does not arise for decision before us. In the present case there is no stipulation one way or the other as regards the right of subrogation. If the case came within the purview of Para. 3 of Section 92, the appellants would be out of Court. But, putting the case in favour of the appellants at not the highest, there appears to be no reason why the provisions of Para. 1 of Section 92, T. P. Act, should not be prayed in aid of the appellants. There is no direct authority of this Court, or of any other Court, exactly in point one way or the other. Hence, we have to decide this controversy as a case of first impression, so far as we have been able to know from the Bar. A single Judge of this Court is reported to have decided in the case of Ganga Prasad v. Dulari Saran 170 I. C. 134 that the principle of substituted security, being a general principle of law not provided for by the Transfer of Property Act, is not affected by the provisions of Section 98, T. P. Act. As already indicated, legal subrogation is based on equitable considerations and principles of natural justice, and, unless it is excluded from the terms of the contract between the parties, I see no reason to refuse such a right to persons in the position of the appellants who were compelled to pay the previous bond of Aklu Sahu in order to obtain possession of the property. It has been contended on behalf of the respondents that there is a stipulation in the deed that

"if any damage and loss whatsoever be caused to the mortgaged property, as a result of which dispossession be made, the rehandars shall be competent to realize the principal rehan money besides interest at the rate of 2 per cent per mensem from the date of dispossession till the day of realization and besides the costs in Court from the person, assets and other properties of us, the executants, or our heirs."

But that stipulation relates to dispossession of the mortgagees from the mortgaged property. In the present case, the existence of this particular mortgage in favour of Aklu Sahu for Rs. 800 had never been disclosed to the mortgagees, and they found that they could not take possession of the entire mortgaged property without redeeming the pre-existing mortgage of Aklu Sahu Such a case was not within the contemplation of the parties. Hence, it cannot be said that there was any stipulation against redemption of a prior mortgage, and consequently against enforcing the right of subrogation on the prior mortgage being redeemed. In my opinion, there is neither principle nor precedent in favour of the contention raised on behalf of the respondents. I would, therefore, hold that the appellants are entitled to be subrogated in respect of the prior mortgage bond of Aklu Sahu, which they redeemed.

8. The nest question that arises for consideration is whether the appellants are entitled to be subrogated to the rights of Madho Missir to pay up his mortgage decree. The considerations which apply to the case of the redemption of Aklu Sahu's bond also apply to this transaction with this difference that the mortgage-money was paid during the pendency of the present litigation sometime in May 1944. It has been argued on behalf of the respondents that the plaintiffs voluntarily paid the mortgage decree of Madho Missir, hence, it is contended, they are not entitled to be subrogated. It has been observed by their Lordships of the Privy Council in the case of Ram Tuhul Singh v. Biseswar Lall, 2 I. A. 131 : 15 B. L. R. 208 . that :

"..... it is not in every case in which a man has benefited by the money of another, that an obligation to repay that money arises. The question is not to be determined by nice considerations of what may be fair or proper according to the highest morality. To support such a suit there must be an obligation, express or implied, to repay. It is well settled that there is no such obligation in the case of a voluntary payment by A of B's debt."

But are the appellants in the position of mere volunteers ? The following observations of Mookerjee J., in the case of Gurdeo Singh v. Chandrika Singh 36 Cal. 193 : 1 I. C. 913 are relevant to the present controversy :

''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 legal obligation to make the payment, and not being compelled to do so for the preservation of any rights or properties of his own . . . .... that subrogation as a matter of right is never applied in aid of a mere volunteer. Legal substitution into the rights of a creditor for the benefit of a third person takes place only for his benefit, who being himself a creditor, satisfies the lien of a prior creditor or for the benefit of a purchaser, who extinguishes the encumbrances upon his estate, or of a co-obliger or surety, who discharges the debt .... Any one, who is under no obligation or liability to pay the debt, is a stranger, and, if he pays the debt, he is a mere volunteer."

These observations Mookerjee J. made with reference to a large number of decisions of the English Courts and authorities on the law of mortgages. In the present case, the appellants paid the mortgage-debt of Madbo Missir, it is true, during the pendency of this suit, but they contend that they paid the money for preserving the property from sale within the meaning of Section , T. P. Act. It is further contended that they had their own interest to conserve in doing so. If the plaintiffs, or the mortgagors, did not pay up the mortgage decretal debt, it was in the interest of the appellants to pay the same, so as to avoid complications in their title to a portion of the mortgaged property. As already indicated, this section makes a saving in favour of a contract to the contrary, But there is no such contract in the present mortgage bond. Hence, by the terms of the mortgage deed, the appellants were not precluded from exercising a statutory right, which they had, to save the property from sale, and thus making good their own title thereto. That being so, in my opinion, the appellants are entitled to claim that, before, redemption of their mortgage, they must be paid, in addition to Rs. 1,250 already deposited in Court, the sum of Rs. 800 in respect of the mortgage bond of Aklu Sahu and the amount paid in respect of the mortgage decree of Madho Missir with interest at nine per cent. per annum up to the date of redemption. In this view of the matter, it must be held that the tender of Rs. 1,250 was not sufficient in law to compel the mortgagees-appellants to surrender possession of the property to the mortgagors or their successors-in-interest. It is manifest, therefore, that the decision of the Courts below is erroneous in law. The decree for mesne profits, therefore, must be set aside.

9. In view of these considerations, a fresh decree for redemption will be made in favour of the plaintiffs-respondents conditional on their depositing in Court the additional sums referred to above within three months from the date of the decree of this Court, failing which their suit will stand dismissed with costs.

10. The appeal is accordingly allowed in part to the extent indicated above with costs in this Court and in the lower appellate Court the costs of the Court of first instance to be borne by each party, as success was divided between them in that Court.

Imam, J.

I agree.