Stanley, C.J:— This is an appeal under section 10 of the Letters Patent against a decision of a learned Judge of this Court reversing the decrees of the lower courts in a suit for redemption by sub-mortgagees of a prior mortgage. In 1884, the owners of the mortgaged property, namely, Ganga, Sheo Shankar, and Sheo-nandan executed a usufructuary mortgage in favour of Ram Din and others to secure a principal sum of Rs. 349. In the mortgage it was provided that the property might be redeemed in Chait of any year. In the month of April, 1900, the same mortgagors executed a further mortgage of the same property in favour of one) Baleshar Lal to secure a principal sum of Rs. 899. This mort-gage contained a provision that Baleshar should get possession pi the mortgaged property after redeeming the earlier mortgage of 1884. In the following month Baleshar Lal sub-mortgaged the property in favour of the plaintiffs to secure a principal sum of Rs. 699. Of this sum, Rs. 349-15-0 were left in the hands of the mortgagees to enable them to redeem the mortgage of 1884 and obtain possession of the mortgaged property. The sub-mortgage contained a provision that possession when obtained should be retained up to year 1314 Fasli. In it also the sub-mortgagor in express terms transferred his interest in the land, the subject-matter of the mortgage, and agreed that the sub-mortgagees should remain in possession of the land from 1308 to 1314 Fasli, paying rent therefore to the proprietor of the mahal. The language of the deed is as follows:— “The land which has been mortgaged to me, I having made a sub mortgage of that land, promise that you shall remain in possession of the land so mortgaged from 1308 to 1314 Fasli,” etc. The plaintiffs entered into negotiations for redemption of the prior mortgage in pursuance of the arrangement entered into between them and their sub-mortgagor, but the defendants refused to accept the money payable under that mortgage and deliver up possession. Hence the suit out of which this appeal has arisen.

2. The Court of first instance decreed the plaintiffs' claim for redemption, and the decree for the redemption was upheld on appeal, but on second appeal the learned Judge of this Court before whom the appeal came, was of opinion that the sub-mortgagees had no right of redemption whatever, and, reversing the decrees of the two lower courts, dismissed the plaintiffs' claim. In arriving at his decision, the learned Judge relied upon the decisions of this Court in the case of Ganga Prasad v. Chunni Lal(1) and Misri Lal v. Abdul Aziz Khan(2) as determining the question before him. He observes in the course of his judgment: “It is quite clear from what is laid down in those cases that a sub-mortgagee does not stand in the shoes of his mortgagor. As was said in the former of those decisions, the sole right of the sub-mortgagee is to get a decree for money against his mortgagor, under which decree he might possibly attach, if not paid off, his mortgagor's mortgaged’ He then says, “the only question whether a sub-mortgagee can redeem, must be decided with reference to the terms of section 91 of the Transfer of Property Act. The learned Vakil, who appears for the respondents, admits that the only clause in that section upon which he can rely is clause (b), which confers a right to sue for redemption upon “any person having amy interest in or charge upon the right to redeem the property.” In the second of the two cases cited above, the learned Judge (Chamier, J.) says, “it seems to follow from the decision in that case, i.e Ganga Prasad v. Chunni Lal, that a sub-mortgagee [acquires no interest in or charge upon the property. It was held by a majority of the Full Bench in Matadin Kasodhan v. Kazim Husain(3) that the term property as used in chapter 4 of Act IV of 1882 (in which chapter section 91 occurs) means an actual physical object and does not include mere rights relating to physical objects, I am bound to accept the definition of the word ‘property.’ Having regard to this definition I am of opinion that the plaintiffs' case cannot be brought under section 91(b). Had the plaintiffs' mortgagee assigned his mortgage to the plaintiffs, or had the plaintiffs by proceedings in Execution acquired the full rights of their mortgagor, they might have maintained the suit, but, as it is, I do not think that such rights, as they gained by the sub-mortgage from Baleshar Lal gave them any right to sue to redeem the prior mortgage.” I am wholly unable to agree with the learned Judge in this. It seems to me that section 91 of the Transfer of Property Act in the clearest terms gives a right to redeem to a sub-mortgagee. Even assuming that the sub-mortgage in this case did not give any interest in or charge upon the mortgaged property to the sub-mortgagees, which I am not prepared to admit, undoubtedly gave them an interest in or charge upon the right to redeem the mortgaged property. Sub-section (b) provides that “any person having any interest in or charge upon a right to redeem the property” may redeem.

3. The two cases upon which the learned Judge bases his conclusions were not concerned with redemption proceedings. In the case of Ganga Prasad v. Chunni Lal, the question before the court was whether or not a person in whose favour what purported to be a sub-mortgage, but in which there had been no assignment of the mortgage, had been executed, could maintain a suit for sale of the mortgaged property. In that case, Edge, C.J, and my brother Burkitt held that the plaintiff could not maintain a suit for sale, observing that “it is inconceivable to see how any Subordinate Judge could have given the plaintiff a decree for sale under section 88. of Act No. IV of 1882, of property which was not mortgaged to him. The sole right of Chunni Lal was to get a decree for money against Nand Kishore (i.e, sub-mortgagor) and then under that decree he might possibly have attached, if it had not been paid off the mortgage held by Nand Kishore.” Now in the first place I may point out that in that case the sub-mortgagor purported to mortgage his rights as mortgagee, but did not assign his mortgage to the sub-mortgagee. In the case under appeal, the ‘ sub-mortgagor expressly sub-mortgaged the land which was comprised in his mortgage. I desire to refrain from expressing any opinion upon the question whether or not a sub-mortgagee can or cannot properly institute a suit for sale of the mortgaged property. The view expressed by the learned Judges of this High Court in the case to which I have referred, did not commend itself to the, Bench of the Madras High Court which decided the case of Muttu Vijia Raghunatha Ram Chandra Vacha Mahali Thurai v. Venkatachallam Chetti(4). In that case it was held by Subrahmania Ayyar and Davies, JJ., that a sub-mortgagee is entitled to a decree for sale of the original mortgagor's interest in cases and in circumstances which would have entitled the original mortgagee on the date of the submortgage to claim such relief. There is a good deal in the judgment of Subrahmania Ayyar, J., in support of his view which commends itself to me.

4. The learned Judges in their judgment in Ganga Prasad v. Chunni Lal, say that “the sole rights of Chunni Lal (i.e, the submortgagee) was to get a decree for money against Nand Kishore (i.e, the sub-mortgagor), and then under that decree he might possibly have attached if it had not been paid off, the mortgage held by Nand Kishore.” This passage is relied upon on behalf of the respondents as an authority for the proposition that a sub mortgagee has no interest in or charge upon the mortgaged property which would entitle him to redeem, that his sole and only remedy is to get a money decree against his sub-mortgagor. Indeed, in the later case of Misri Lal v. Abdul Aziz Khan(5), Chamier, J. seems to think that this necessarily followed from the decision in Ganga Prasad v. Chunni Lal. He says in the course of his judgment, “In Ganga Prasad v. Chunni Lal, it was held by two Judges of this Court that the sole right of the sub-mortgagee as against the original mortgagee is to obtain a money decree against him. The decision was dissented from by the Madras High Court, but it is binding upon one. It seems to me to follow from the decision in that case that a sub-mortgagee acquires no interest in or charge upon the property. If otherwise, he would surely be entitled to a decree for sale of the property mortgaged to him.” Assuming that the case of Ganga Prasad v. Chunni Lal, was rightly decided, it seems to me, with all deference, that Chamier, J. goes too far in supposing that it follows from that decision that a sub-mortgagee acquires no interest in or charge upon the mortgaged property. The learned Judges did not so decide and they certainly do not appear to have had before their minds the provisions of section 91 of the Transfer of Property Act. That section, as I have said, confers a right of redemption upon any person having any interest in or charge upon the right to redeem the property. The learned Judge of this Court, from whose decision the present appeal has been preferred, refers to the case of Matadin Kasodhan v. Kazim Husain(6), in which it was held that the term “property” as used in the Transfer of Property Act means an actual physical object and does not include mere rights relating to physical objects, and accepting this definition, held that the plaintiffs were not entitled to redeem. He seems to me not to have attached due weight to the language of sub-section (b) of section 91 which gives the right of redemption to a person who has an interest in or charge upon the right to redeem. The section is not confined to persons who have an interest in the property that the actual physical object, but extends also to persons having any interest in the right to redeem the property. Now Baleshar Lal, the sub-mortgagor, who was a puisne mortgagee, having an interest in or charge upon the property, had undoubtedly a right to redeem the mortgage of 1884. He by the sub-mortgage of May, 1900, sub-mortgaged the land which had been so mortgaged to him and thereby undoubtedly, as it seems to me, if he did not confer upon the sub-mortgagees an interest in or charge upon the property, at least created an interest in or charge upon the right to redeem to which Baleshar Lal was entitled. I am therefore unable to agree in the view of the learned Judge of this Court. A sum of Rs. 349-15-0 was actually left by Baleshar Lal in the hands of his mortgagees for the redemption of the mortgage of 1884. This shows the intention of the parties that the earlier mortgage should be redeemed by the sub-mortgagees. The effect of the decision from which this appeal has been preferred is to preclude the plaintiffs from carrying out their obligation and relieving the property from the burden of the earlier mortgage. I would allow this appeal with costs, and setting aside the decree of the single Judge of this Court, restore the decree of the lower appellate Court.

Burkitt, J.:— I might have contented myself with saying that I concur in the order proposed by the learned Chief Justice. But being one of the Judges responsible for the decision in Ganga Prasad v. Chunni Lal(7), I think it right to add a few words, it seems to me that in the judgment now under appeal the learned Judge of this Court lost sight of the fact that while the appeal before him was one in a suit for redemption of a mortgage, the suit in Ganga Prasad v. Chunni Lal, was one for sale. In the former the sub-mortgagor had by an express covenant with his submortgagee, conveyed to the latter an interest in the right to redeem the mortgage of 1884 and had left part of the mortgage money in the sub-mortgagee's hands for that purpose, while in the latter the sub-mortgage was only a mortgage of the mortgagee rights of the sub-mortgagor. It follows, therefore, in my opinion, that the sub-mortgagee in the case now under appeal before us has acquired by express covenant with his sub-mortgagor an interest in the right to redeem the mortgage of 1884 under the terms of clause (b) of section 91 of the Transfer of Property Act, while in Ganga Prasad v. Chunni Lal, the relief asked for was sale of the mortgage's property, to which section 91 of the Transfer of Property Act is not applicable.

5. Further I would add that both in this case and in Misri Lal v. Abdul Aziz Khan(8) the learned Judges have, I think, attached too wide a meaning to the words “the sole right “used towards the conclusion of the judgment in Ganga Prasad v. Chunni Lal, Those words must be read in connection with the nature of the suit in the judgment in which they were used. The only relief asked for in that case was an order for sale of mortgaged property, on suit by a sub-mortgagee for sale of property not mortgaged to him or, to use the words of the judgment, the sub-mortgagee sought to “get the debt due from Nand Kishore to him paid by sale of the property of Rupa and others who were not his mortgagors.” The only question before Edge, C.J and myself in that case was whether such a relief could be allowed, We had not to consider, and did not consider, whether a suit for redemption, which is the relief asked for in the present suit could be entertained, nor was it necessary for us to discuss that question; we certainly did not intend by the use of the words “the sole right” to express any opinion thereon.

6. For the above reason I concur in the order proposed by the learned Chief Justice, allowing the appeal, setting aside the decree of the learned Judge of this Court and restoring the decree of the lower appellate court.

By The Court, The order of the Court is that the appeal be allowed, the decree of the learned Judge of this Court be set aside and the decree of the lower appellate court be restored with costs in all courts

S.C.BAppeal decreed.