Decided on November 28,1944



Alfred Henry Lionel Leach, C.J. - (1.) ON 7th June, 1929, by Ex. P -5, one Karuppannan Servai sold the suit property to the defendant, who is the appellant here. Part of the consideration was the discharge of two mortgages of 29th March, 1925 (Ex. P -2) and 8th September, 1926 (Ex. P -3). Karuppannan Servai refused to register the document. The registration did not finally take place until 30th January, 1930. In the meanwhile, only a few days after the sale by Karuppannan Servai to the defendant, he sold the land to the plaintiff on 26th June, 1929, the consideration for the sale being a sum of money paid in cash and the discharge of the two mortgages referred to in the sale deed in favour of the defendant. Karuppannan Servai very wisely seems to have insisted on the discharge of these mortgages before he would execute the sale deed, and on 23rd June, 1929, and 25th June, 1929, respectively the two mortgages were discharged. The question that arises in this suit, is whether the plaintiff is subrogated to the rights of the mortgagees whose mortgage debts he discharged. Both the Courts below held that he was.
(2.) THE argument of the learned advocate for the appellant is that the plaintiff was a mere volunteer; he did not have any interest within the meaning of Section 91(a) of the Transfer of Property Act, in that he had nothing more than an unenforceable contract in his favour which conveyed to him no legal rights whatsoever. It however seems clear to me that the paying off of the mortgages was part of the transaction that ended on the 26th June with the execution of the sale deed in favour of the plaintiff. The learned advocate has argued that at the time when these mortgages were discharged, namely, on the 23rd and 25th respectively of June, 1929, the plaintiff had no rights; but it seems to me that it would not be right to regard these payments independently of the execution of the sale deed on the 26th. It seems to me of little moment whether the mortgages were discharged a day or two before the sale deed was drawn up or whether they were discharged a few minutes or hours before the execution of the sale deed. If we regard the payment of these mortgage debts and the execution of the sale deed as part of the same transaction, then - -if we ignore for the moment the effect of the sale in defendant's favour the plaintiff would have an interest in the property which would entitle him to discharge the mortgage. The further question, however, arises whether the plaintiff can still be regarded as having an interest in view of the fact that when Ex. P -5 was registered on 30th January, 1930, it dated back to 7th June, 1929, with the result that the plaintiff derived no title from the sale, the plaintiff can still be regarded as having possessed an interest which entitled him under Section 91 to redeem the mortgages. That question, I feel, is covered by authority. There are many cases bearing on this point. It will be sufficient to cite two : Narayana Kutti Goundan v. Pechiammal, (1911) 22 M.L.J. 364 :, I.L.R 36 Mad. 486 and Kelu v. Chappan, (1936) 45 L.W. 300. In both of these cases, a person erroneously believing himself to stand in the shoes of the mortgagor paid off the mortgage debt; and it was held that although he had no right whatsoever in the property, yet his belief that he had a legal interest in the property gave him a sufficient interest within the meaning of Section 91 of the Transfer of Property Act, to be subrogated to the rights of the mortgagee.
(3.) FINALLY , it is argued that the plaintiff would only have a right to subrogation, if he intended at the time of his discharging the mortgage debts on 23rd June, 1929, and 25th June, 1929, to keep the mortgage debts alive. In discussing the question whether a person has a right to subrogation on the making of a payment, the effect of his intention to keep the mortgage alive seems not to have been considered in the cases cited before me : but I think it would be reasonable to assume in the present case that the plaintiff had such an intention. It is argued that whereas a person paying off a mortgage debt, knowing it would be necessary to be subrogated to the mortgagee's rights in order to preserve his interests, might be presumed to intend to keep the mortgage alive, it would be unreasonable to make this presumption where he had no knowledge of any right in any other person. I see no reason, however, why one should not apply that presumption even to cases where a person is not aware of any threat to his rights. A person buying property would ordinarily realise the possibility that some person might put forward a claim to property which might be established and so would wish to protect himself against such a contingency by keeping alive any mortgage which he paid off.;

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