1. This is an appeal by the plaintiff in a suit to enforce a mortgage security. The first three defendants are the admitted owners of the disputed property. On 12th November 1897, they executed an unregistered mortgage bond in favour of the plaintiff. On 2nd August 1898, they executed a registered mortgage bond in favour of one Kortick Jana. On 15th December 1905, the right, title and interest of the mortgagors in the mortgaged properties was sold in execution of a money-decree against them and passed into the hands of defendant 4. The mortgagee of 1898 sued to enforce his security as against the mortgagors and the purchaser of the equity of redemption, defendant 4. A decree was made by consent of parties, which was satisfied by defendant 4 on 14th December 1907, with money raised by him upon a mortgage executed by him on 10th December 1907 in favour of defendants 5 and 6. On 27th August 1909, the plaintiff commenced the present action to enforce his security, and he joined as defendants the mortgagors (first three defendants), the purchaser of the equity of redemption (defendant 4), and the mortgagees from the latter (defendants 5 and 6). The Court of first instance decreed the suit. On appeal, the Subordinate Judge has dismissed the suit, because, in his opinion, the mortgage sought to be enforced was fictitious, while that of 2nd August 1898 represented a genuine transaction. The plaintiff has appealed to this Court, and on his behalf the decision of the Subordinate Judge has been challenged on the ground that as defendant 4 now occupied the position of a prior mortgagee, he is not entitled to question the validity of the mortgage in suit which can, at least, take rank as a subsequent encumbrance. In our opinion, there is no foundation for this contention.
2. There is no controversy that if the two mortgages of 1897 and 1898 be assumed to be genuine, the mortgagee of 1898 or his representative in-interest is entitled to priority, under Section 50 of the Registration Act, as his title is based on a registered instrument. Consequently, prima facie, defendant 4 is in the position of a prior encumbrancer, and it is immaterial to him whether he is sought to be redeemed by the mortgagors or by a person who claims as a subsequent encumbrancer from them. But this doctrine has no application to the circumstances of the case before us. As already stated, defendant 4 is also the purchaser of the right, title and interest of the mortgagors at a sale held in execution of a money-decree against them. He therefore combines in himself a two-fold character; he is the holder of the equity of redemption and the is also in the position of a prior encumbrancer.
3. In his character as holder of the equity of redemption, the defence is undoubtedly, available to him that the mortgage in suit is fictitious. Is that defence, then, not available to him because he has also acquired the position of a prior encumbrancer? It has been argued for the appellant that when the two interests combined in the same person, there was a merger. This contention is obviously unsound, because the decision of their Lordships of the Judicial Committee in the case of Gokal Das Gopal Das v. Puranmal Premsukhdas . [1884] 10 Cal. 1035 shows conclusively that defendant 4 is entitled to use the mortgage of 1898 as a shield for his protection. We must hold accordingly that it was open to defendant 4, and consequently, to the subsequent encumbrancers from him (defendants 5 and 6) to dispute the genuineness of the mortgage transaction on which the plaintiff seeks to found his claim.
4. The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs.
V.B/R.K
5. Appeal dismissed.