JUDGMENT
1. It appears that one Musammat Jafri Begam was a part proprietress of the villages of Mirpur, Qamaruddinnagar, Ataipur Jadid, Raipur and Nehalpur, situate in the District of Farrukhabad. She executed a deed of simple mortgage on the 10th of October 1902 in respect of her shares in the said villages in favour of her son-in-law, Muhammad Yusuf Ali Khan, in lieu of Rs. 2,500. The sum of Rs. 635-8-0 out of the mortgage loan was left in the hands of Muhammad Yusuf Ali Khan for payment to one Abdul Rahim Khan a prior mortgagee.
2. Musammat Jafri Begam died without redeeming the mortgage of 1902 and left her surviving a son and a daughter called Abdul Wahid Khan and Musammat Zebun-nissa Begam respectively.
3. Muhammad Yusuf Ali Khan is the husband of Musimmat Zebun-nissa Begam.
4. Under the Muhammadan Law, Abul Wahid Khan inherited two thirds and his sister Musammat Zebun-nissa one-third of the property left by their mother. The brother and" the sister became liable for the payment of their mother's debts also in the same proportion. Abdul Wahid Khan found that his sister was not anxious to join him in the discharge of the mortgage of 1902, which was in favour of her husband and which, if not paid up soon, was likely to swallow up the mortgaged property as the mortgage carried 2 per cent, per mensem compound interest. He could not redeem his own share only by paying the proportionate amount of the mortgage money nor had he ready-money to pay his proportionate share on the entire mortgage money. He, therefore, decided to sell part of the property inherited by him from his mother and to pay off from the proceeds of the sale the entire mortgage and then sue his sister for the amount due from, her.
5. Accordingly, on the 22nd of June 1907, he sold his two-thirds share in some of the mortgaged villages, to one Ram Ratan Lal for Rs. 600. The sum of Rs. 5,426 was left in deposit with the vendee for payment to Muhammad Yusuf Ali Khan in discharge of the entire mortgage debt due on the deed of 1902 up to the date of Sale. After the sale of 1907, Muhammad Yusuf Ali Khan intimated to the vendee and Abdul Wahid Khan that he, Muhammad Yusuf Ali Khan, had remitted one-third of the mortgage debt, the amount due from his wife and desired to be paid the balance, viz., two-thirds of the mortgage- money. But the vendee made no payment.
6. On the 21st June 1910, Abdul Wahid Khan instituted a suit in the Court of the Subordinate Judge of Farrukhabad for the recovery of Rs. 1,808-10-8, one-third of Rs. 5,425 the money left with Ram Ratan for payment to Muhammad Yusuf Ali Khan on account of the mortgage of 1902 on the allegation that as Muhammad Yusuf Ali Khan had remitted the proportionate amount due from his wife on the mortgage in question, Ram Ratan must refund it. The claim was brought against Ram Ratan and Muhammad Yusuf Ali Khan, the latter being made a pro forma defendant in the case. Ram Ratan alone resisted the suit. He denied the right of Abdul Wahid Khan to claim refund for portion of the sale price. He said that he had compounded for Rs. 2,500 the claim of Muhammad Yusuf Ali Khan in respect of the mortgage of 1902 and had paid the latter the said sum in full satisfaction of the entire mortgage debt. He further stated that the payment had been endorsed on the back of the deed which had been taken from the mortgagee but which had been lost. The loss of the deed had encouraged Abdul Wahid Khan in collusion with his brother-in-law to bring a false claim.
7. The learned Subordinate Judge found that the allegations in defence as to compensation, the payment of Rs. 2,500, the endorsement on the deed of 1902, and the loss of the deed were false as the original deed was produced by Muhammad Yusuf Ali Khan and it bore no endorsement of payment. He also held that the claim was maintainable and decreed it. On appeal, the learned District Judge affirmed the decree of the first Court. Ram Rattan Lal has come up in second appeal to this Court. His appeal raises two points, viz:
8. First.--Whether the remission by Yusuf Ali Khan enures to the benefit of Ram Ratan or Abdul Wahid Khan, and, secondly, whether Ram Ratan can withhold the payment of the amount remitted by Yusuf Ali Khan because of another mortgage on the property sold, namely, that of Abdul Rahim Khan. In connection with the first point, the argument is that the sale to Ram Ratan was for a single consideration. He purchased the property for a definite sum giving the vendor an indemnity against the claim on the mortgage of 1902. The vendor got the price of his interest in the property sold and had no interest left in it. Any benefit that accrued to the property subsequent to the sale by reason of the redaction of its burden goes to the vendee and "cannot be claimed by the vendor. The remission by Yusuf Ali Khan having been made after the sale to the appellant, Abdul Wahid Khan cannot recover from the appellant the amount so remitted. In support of this argument, the case of Izzat-un-nissa Begam v. Kunwar Purtab Singh 6 A.L.J. 817; 10 C.L.J. 313; 13 C.W.N. 1143; 11 Bom. L.R. 1220; 6 M.L.T. 277; 31 A. 583; 3 Ind. Cas. 793; 19 M.L.J, 682; 36 I.A. 203 is relied upon. The facts of that case were that one Intizam Begam obtained a decree on the basis of her mortgage for the sale of nine villages. In execution of her decree, the nine villages were sold subject to two prior mortgages. She purchased eight out of the said nine villages. Subsequent to the sale, the prior mortgagees sued to enforce their mortgages, which were held to be invalid.
9. The mortgagors and the purchaser having died in the meantime, litigation arose between their legal representatives as to the amount secured by the prior mortgages. The legal representatives of the mortgagors sued to recover the said amount on the allegation that the real purchase money of the property sold at the Court-auction in execution of the decree of Intizam Begam was the amount paid by her at the sale and the amount due on the prior mortgages and that inasmuch as the property had been exonerated from all liability in respect of the prior mortgages, the sum due on them became due to him as unpaid vendor. The claim was disallowed by their Lordships of the Privy Council. They held that the mortgagors, the judgment-debtors, got the price of their interest, whatever it was, in the property sold at Court-auction together with an indemnity against the encumbrances affecting the property. If the encumbrances were found subsequent to the sale to be invalid, they could not pick up the burden of which the property was relieved and seize it is their own property. They had no right to participate in any benefit which the purchaser may have derived from her purchase. Now it is obvious that the circumstances of the case under appeal before us are quite different The mortgage of 1902 in favour of Yusuf Ali Khan has not been found to be invalid. Yusuf Ali Khan has not relinquished any portion of the mortgage debt. All that he has done is that he has remitted one-third of the mortgage money due from his wife in order to avoid a contribution suit by her brother. Instead of taking the entire mortgage money and then giving back to Abdul Wahid Khan the amount due from Musammat Zeb-un-nissa, he, Muhammad Yusuf Ali Khan, ordered the vendee to pay two-thirds of the mortgage debt only leaving the balance of one-third the amount due from Musammat Zab-un-nissa for the benefit of Abdul Wahid Khan. Yusuf Ali Khan has not given up his claim to any portion of the mortgage money. The mortgaged property is not by the proposal of Yusuf Ali Khan released of any part of its burden. The principle laid down in the case of Izzat un-nisa Begam v. Kunwar Purtab Singh 6 A.L.J. 817; 10 C.L.J. 313; 13 C.W.N. 1143; 11 Bom. L.R. 1220; 6 M.L.T. 277; 31 A. 583; 3 Ind. Cas. 793; 19 M.L.J. 682; 36 I.A. 203 is, therefore, inapplicable. We disallow the first contention of the appellant and hold that the suit of Abdul Wahid Khan is maintainable. As to the second contention, it is sufficient to say that the lower Courts have found it as a fact that the mortgage of Abdul Rahim Khan does not subsist any more. Besides, we have not been referred to any evidence on the record to show that the said mortgage still subsists. The appeal fails and we dismiss it with costs, including in this Court fees on the higher scale.