Mukerji and King, JJ.:— After stating the facts as above, thus continued:—
The main question for determination in this appeal is whether the defendants Nos. 2 to 4 are entitled to priority due to the mortgage of 1904. We have heard the learned argument addressed to us by the learned counsel for the appellant. We think that the courts below were right. The sale-deed relating to village Nagla Chamaran has been read to us. We find that the executants expressly say that they were paying off the first mortgage, that is to say, of 1904, and the vendees were to have the property free from all encumbrances. There can be no doubt that the intention of the parties to the sale-deed was that the first mortgage should be kept alive for the benefit of the vendees. The case of Dinobundhu Shaw Chowdhry v. Jogmaya Dasi is really conclusive on the point. In that case there were two prior mortgages and there was an attachment of the property subject to those mortgages. The mortgagor made a third mortgage, raised a sum of Rs. 40,000 and paid off the two prior mortgages. The purchaser at auction sale, which followed the attachment, contended that he had purchased the property free from the two prior mortgages and that the third mortgagee was not entitled to any priority due to the first two mortgages. It was held by their Lordships of the Privy Council that it must be assumed that the third mortgagee advanced the money to pay off the first two mortgages with the idea of keeping the benefit to himself and not to benefit the auction-purchaser by the transaction. The same principles apply to this case. It cannot be said that Ram Chandra advanced the money for the sole benefit of Madho Singh, viz., to enlarge his security, and not to keep for himself the priority which was due to the mortgage he was satisfying. The mere fact that Musammat Sahodra made a private sale to Ram Chandra does not, in any way, affect the principles on which the suit should be decided.
Similar argument applies to the mortgage of the same date and in favour of Ram Chandra. We are, therefore, of opinion that the courts below were right in giving priority to the descendants of Ram Chandra.
The result is that the appeal fails, and it is hereby dismissed with costs.
Appeal dismissed.