JUDGMENT
1. This is a plaintiff's appeal arising out of a suit for recovery of possession. It appears that Hatim Ali, a predecessor-in-title of the plaintiff, was the owner of the property and after his death all his heirs executed a simple mortgage deed in 1906 in favour of certain mortgagees, the period fixed for payment being ten years. Hatim Ali had left a son, a widow and two daughters. The son Kazim Husaintook possession of the entire property and then purported to transfer the whole of it on the 7th of November 1921 to Rustam Ali. The sale deed was for R§. 6,300 out of which Rs. 4,300 were left in the hands of the transferee for payment of the previous mortgage-debt. It is now found that as a matter of fact the vendee paid only Rs. 1,550-5 towards the previous mortgage debt and that he discharged the other debts with which we are not now concerned.
2. The limitation on the mortgage which was for ten years would not have expired till 1928. About a year before that date, namely, 1927, the present suit was instituted by an heir of one of the deceased sisters of Kazim Husain for recovery of his share. The claim was resisted on various grounds. The defendant wanted to claim the entire property by adverse possession, by estoppel as well as on other grounds. He also pleaded that he was entitled to be paid a proportionate amount out of the sum which he paid towards the discharge of the previous mortgage-debt.
3. The suit was decreed by both the courts below unconditionally. On appeal to this Court a learned Judge has upheld the decree for possession but has made it subject to the condition of the payment by the plaintiff of a proportionate amount out of Rs. 1,550-5 paid by Rustam Ali towards the mortgage of 1906. He has also directed the payment of interest on this amount at the rate mentioned in the mortgage-deed. - The point for consideration is whether Rustam Ali is entitled to resist the claim for possession and demand the payment of this amount.
4. No doubt it has been held on the strength of previous authorities including Sukhi v. Ghulam Safdar Khan 65 Ind. Cas. 151 : 43 A 469 : (1921) MWN 445 : 14 LW 162 : 26 CWN 279: 42 MLJ 15 : 30 MLT 175 : 24 Hom. LR 590 : AIR 1922 P.C. 11 : 48 IA 465 (P.C.) that where a prior mortgagee brings a suit on his mortgage and obtains a decree against his mortgagor without impleading a subsequent mortgagee arid purchases a property at auction and actually obtains possession, he cannot be ousted by a plaintiff deriving title through a subsequent mortgagee without his mortgage-debt having been satisfied: See RamSanehi Lai v. Janki Prasad 134 Ind. Cas. 1 : (1931) ALJ 729 : AIR 1931 All 466 : Ind. Rul. (1931) All. 769 : 53 A 1023 (F.B). But the present suit is not a case of that, type. Here there was no suit brought on the basis of the previous mortgage, but the amount was, paid off privately by the defendant who had become entitled to the possession of the property as purchaser of the equity of redemption, and not by virtue of take payment of the previous simple mortgage! Nq authority has been brought to our notice by the learned Advocate for the respondent in which private payment of a simple mortgage has been held to justify the holding up of that payment as a shield so as to resist a suit for possession by the mortgagor's representatives. On the other hand, it seems to us that the principle laid down by their Lordships of the Privy Council in the case of Bijai SaranSahi v. Rudra Bageshwar 120 Ind Cas. 650 : (1930) ALJ 531 : AIR 1929 PC. 288: 30 LW 604: (1929) MWN 827 : 32 Bom. LR 144 : 58 MLJ 440 : 51 CLJ 70 (P.C.), applies to this case. There too, the defendants who were transferees had paid off a simple mortgage. Their purchase however was found to be invalid. Their Lordships remarked:
Now admittedly these mortgages were not usufructuary mortgages, and as the plaintiffs (respondents) have been held to be and are the owners of the equity of redemption, it is impossible to see under what title the defendants (appellants) can claim to resist the decree for possession.
5. Inasmuch as the defendants in that case had got possession by Virtue of the sale and the sale was invalid, they were ordered to surrender possession of the same because their mortgages did not give them any right to possession. It was remarked that whatever rights they had under their mortgages, they can no doubt enforce them in proper proceedings taken for the purpose, but there is no principle or authority which enables the defendants to set up their mortgages as shields against the plaintiff-respondents' claim for possession. The same remarks apply to the present case.
6. There is no doubt that Kustam Ali by virtue of paying the previous mortgage stepped into the shoes of the previous mortgagee and had the same rights as the mortgagee to enforce the debt. It may be that he is entitled to enforce the charge created in his favour within an extended time. But on this point it is not necessary to express any final opinion. His remedy may lie in a separate suit to enforce his charge and not in the present suit for possession.
7. We accordingly allow this appeal, modify the decree of the lower Appellate Court and restore the decree of the court of first instance. Inasmuch as the defendant has admittedly paid off in part the liability of the plaintiff, we think that the parties should bear their own costs of both the appeals in this Court.