- (1.) These three appeals, which are before us on certificates of fitness granted by the High Court of Punjab, arise out of two suits for the recovery of amounts due on mortgages executed by one Mohinder Singh who was a contractor in Delhi. Mohinder Singh is now deceased and is now represented in these proceedings by his widow and son. Mohinder Singh owned as many as eight properties in Delhi and over one or other of these he created successively 24 mortgages between September 1943 and July 1944 and also executed a sale in respect of one item of these properties. The contentions urged in these appeals arise out of conflicts between the rights of some of these mortgagees inter se, or between some of them and the purchaser of one of the properties. It is however unnecessary for the purpose of deciding these points to set out the details of every one of these several mortgages or their history.
(2.) Appeals 77 and 78 may first be considered. The facts necessary to appreciate the sole point raised by Mr. Achhru Ram. learned Counsel for the appellant Jagdish Chand are these: The property concerned in the two appeals is plot No. 1, Pusa road in Block 34 with a bungalow thereon. A mortgage for Rs. 10,000/was created over this and certain other properties (We are, however, not concerned with these other properties in favour of one Lajwana by Mohinder Singh by a deed dated October 1943. A few days later-on November 7, 1943- another mortgage was executed in her favour for Rs. 16,000/- under which the property No. 1, Pusa Road was given as security. Passing over certain intermediate transactions not material for the purposes of the present appeals, mortgage was created in favour of one Daulatram Narula inter alia on this property on January 21, 1944 to secure a sum of Rs.60,000/-, Two days later-on January 23, 1944-the appellant, Jagdish Chand, lent a sum of Rs. 10,000/- to Mohinder Singh and had a mortgage over the same property and others on February 25,1944 and March 14,1944, the first or Rs. 9,500/- and the second for Rs. 10,000/-. It ought to be mentioned that the consideration for several of the mortgages referred to earlier was in part a payment in cash to the mortgagor and in part the repayment in part satisfaction of previous mortgages, but this circumstance not being of any relevance we are not setting out the details of the consideration for the several mortgages. Lastly, and this is the mortgage which is of importance for the point raised in this appeal, on July 13,1944 Mohinder Singh created in favour of Pandit Sham Sunder an usufructuary mortgage for Rs. 1,25,000/out of which Rs. 84,000/- was reserved with the mortgagee for payment to Daulatram Narula the sum representing the principal and interest due on his three mortgages. It is common ground that on the date when the mortgage was registered Sham Sunder carried out his obligation and discharged the mortgages of Daulatram by paying him Rs. 84,000/-.
(3.) The amount due to Lajwanti was not paid and she accordingly brought a suit on June 14, 1945 in the Court of the Senior Sub-Judge, Delhi for the recovery of her mortgage money which, after giving credit for the sums paid to her already by several subsequent mortgagees, came to Rs. 11657/5/4. She impleaded as party defendants to the suit the several subsequent mortgagees including the appellant - Jagdish Chand as well as Daulatram and Sham Sunder's legal representatives as he himself was dead by that date. Just like Lajwanti another mortgagee-one Mukhamal in whose favour two mortgages, one dated February 1,1944 and another dated May 12,1944 for Rs. 10,000/- and Rs. 9,000/respectively, also filed a suit for the recovery of Rs. 15,302/- and odd. As in Lajwanti's suit, the several subsequent mortgagees including Jagdish Chand, Daulatram and the legal representatives of Pt. Sham Sunder were also impleaded as defendants in this suit also.;