JUDGMENT
1. The undoubted facts of the case are these. The property in suit was decreed as the share of Anantaramappa against his coparcener Ramachandra. Anantaramappa was then a minor and the present first defendant was put in possession as his guardian. Whilst in such possession, the first defendant executed a bond of the property in question for a debt due by the estate of the minor making himself at the same time personally liable. During the lifetime of Anantararnappa a suit was brought on the mortgage by the mortgagee. Pending the suit Anantarataappa died. Anantaramappa had ceased before his death to ba a minor, but did not take possession of his property from the first defendant. Ramachandra who became Anantaramappa’s heir on his death was made a defendant in toil penning suit on the mortgage and a decree was given for the mortgage amount against the first defendant in addition to an order for the sale of the property. Ramachandra who was absent in Travancore did not appear in the suit and the decree passed exparte was binding upon him also. About this time the equity of redemption which had passed to Ramachandra on Anantaramappa’s death was sold in execution of a money decree against Ramachandra. Before confirmation of the sale the first defendant and Ramachandra’s uncle, the third defendant, acting presumably on b half of Ramachandra arranged with the purchaser at the Court sale in consideration of the payment of a certain sum of money to him to have the sale set aside and executed a mortgage to the appellant who out of the mortgage money payable by him under-took to and did discharge the debt due under the decree obtained against the first defendant and Ramachandra.
2. The mortgage was usufructuary and the first defendant who had continued to hold the property down to the time of the appellant’s mortgage transferred the possession to him. The plaintiff subsequently purchased the property from Ramachandra and sued to eject the appellant. The mortgage to the appellant as a mortgage was held not to be binding upon the plaintiff, but the District Munsif in decreeing possession to the latter made it conditional on his reimbursing the appellant the amount paid by him in discharge of the mortgage decree referred to above. The District Judge disallowed the charge thus given to the appellant, but we think, wrongly. The first defendant having made himself personally libel under the mortgage created in the interest of his ward, the minor, and the decree having been passed against him as well as against the mortgaged property, he was entitled to insist upon the debt being discharged and his liability being put an end to before possession of the lands was taken away from him. The appellant who claims under a transaction from the first defendant having paid up the decree debt is equally entitled to ask that the plaintiff should not have the property free of the charge. Even in the view that after Anantaramappa’s death the first defendant was in no better position than that of a mere caretaker of the property on behalf of Ramachandra, the payment of the decree debt was an act done bona fide and for the benefit of the principal who was himself liable for it, and the plaintiff claiming through such principal must in equity be held disentitled to recover the property without satisfying the charge resulting from the payment.
3. The decree of the District Judge is reversed and in modification of the decree of the district Munsif we give a decree in favour of the plaintiff upon his paying Rs. 765 to the second defendant for possession of the plaint mentioned properties with proportionate costs in this and in the lower appellate court.
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