JUDGMENT
1. This is an appeal in a suit for sale upon a mortgage. On February 1st, 1890, two brothers, Har Mukh and Misri, who were the owners of the property, mortgaged it with possession to Het Singh and Ram Bukhsh for Rs. 3,500. Possession was to be retained on account of the interest on the sum advanced and on redemption the mortgagors were to pay, in addition to the mortgage money, the arrears of rent due from the tenants for the last three years. On February 1st, 1893, they made a simple mortgage of the property in favor of Ram Bukhsh for Rs. 300 promising to pay interest at 2 per cent, per mensem compoundable every six months. On January 10th, 1898, Har Mukh alone mortgaged the property to the plaintiff-respondent for Rs. 200. On May 30th, 1901, Har Mukh and the widow of Misri sold the property to the sons of Het Singh, (who were separate from their father), for Rs. 7,000, leaving in their hands a sum of Rs. 2,534 for (the redemption of Ram Bukhsh's interest in the first mortgage and Rs. 4,280 on account of the mortgage of February 1st, 1893. and taking; the balance in cash. The purchasers paid what was due to Ram Bukhsh on the first mortgage and took possession of half the property. They also paid what was due to him on the second mortgage. The plaintiff has now sued to enforce his mortgage. He has not impleaded Het Singh, therefore, any sale of the property will be subject to the rights of Het Singh. The defendants are the representatives of the mortgagors and the purchasers of the property. The plaintiff concedes that in the circumstances and according to recent decisions of this Court, he is not entitled to bring the property to sale except upon paying what is due upon the mortgages paid off by the purchasers of the property. He admits that he must pay Rs. 2,634 on account of the first mortgage. The Subordinate Judge held that he was bound to pay half the amount now due on the second mortgage calculated according to the terms of the deed. On appeal, the District Judge held that the purchasers were not entitled to interest after the date of their purchase. It is clear that in circumstances like these, purchasers are entitled to use the mortgages which they have paid off as a shield against the claim of the puisne mortgagee.
2. When a purchaser pays off a single mortgage of an usufructuary nature according to which the profits were appropriated in lieu of interest, he is entitled to claim the whole of the principal sum from a person in the position of the present plaintiff and the latter is not entitled to disregard the terms of the mortgage and show that the profits have been sufficient to pay off interest at what may be considered a reasonable rate and to discharge the whole or part of the principal sum. In the present case, the purchasers have paid off an usufructuary mortgage of such a description and also a simple mortgage. It seems impossible to hold that the profits of the property must be taken to have satisfied not only the interest on the usufructuary mortgage but; also the interest on the simple mortgage. If we were to hold this, we should be modifying the terms of the usufructuary mortgage for the benefit of the plaintiff and to the detriment of the purchasers. The plaintiff has no ground for complaint. He must have been aware of the simple mortgage in favor of Ram Bukhsh and might, if he chose, have redeemed it years ago, when a much smaller sum was payable upon it. We were referred to cases in which purchasers had paid off simple mortgages and the Courts had held that the interest after the purchase
3. Must be deemed to have been satisfied out of the profits of the property enjoyed by the purchasers. Those cases are clearly distinguishable from the present case and it is not by any means an invariable rule that even in those cases no account is to be taken of the interest on the one aide and the profits on the other.
4. We can discover no ground for holding that the interest on both the mortgages redeemed by the purchasers has been discharged out of the profits of the property.
5. We set aside the decree of the lower Appellate Court and restore the decree of the first Court with costs here and in the lower Appellate Court. Fees on the higher scale.