JUDGMENT
Das, J.
1. It is somewhat difficult to understand the nature of the suit which “” has given rise to this appeal; but the object seems to be to obtain a declaration that the second mortgagee or the person who now represents the interest of the second mortgagee is entitled to priority over the first mortgagee.
2. In order to understand the point which has been argued before us by the plaintiffs, who are the appellants in this Court, it is necessary to remember the following transactions.
3. On the 9th June, 1902, defendants Nos. 11–16, who will henceforth be referred to, as the mortgagors, mortgaged an 8-annas share of a certain mokarrari proper to Harbans Narain Singh represented in this action by defendants Nos. 7–10. On the 29th September, 1902, the mortgagors mortgaged 16-annas of the same property to Rai Bahadur Harihar Prasad Singh cited as defendant No. 5 in this action.
4. On the 23rd December, 1907, the mortgagors borrowed Rs. 71,000 from Ram Narain Singh, represented in this action by defendants Nos. 2–4 and gave a usufructuary mortgage of the entire 16-annas of the mokarrari property as well as other property to him. This usufructuary mortgage was executed in order to enable the mortgagee to pay off, amongst others, Harbans Narain Singh. A large portion of the consideration money was left with Ram Narain Singh to enable him to pay off Harbans Narain. It appears that Harbans Narain was not paid by Ram Narain and on the 11th June, 1909 Harbans Narain instituted a suit, being Suit No. 27 of 1909, against the mortgagors, to enforce the security of the 9th June, 1902 as against them. He took the precaution of joining Rai Bahadur Harihar Prasad Singh as a party defendant in his action. This suit, as I have said, was instituted on the 11th June, 1909; but it appears that Rai Bahadur Harihar Prasad Singh himself instituted a suit to enforce his security of the 29th September, 1902 sometime in 1904 and on the 4th February, 1905 he obtained the usual mortgage-decree subject to the prior mortgage of Harbans Narain Singh. He took out execution proceedings and in due court the property was put up for sale and on the 17th September, 1917, the plaintiffs purchased the property at that sale. Meanwhile, as 1 have said, Harbans Narain instituted his suit to enforce the security of the 9th June, 1902, and, as I have said, he cited Rai Bahadur Harihar Prasad Singh as a party defendant in his suit. On the 2nd July, 1912, the heirs of Harbans Narain Singh, cited as defendants Nos. 7-10 in this action, assigned the security of the 9th June, 1902 to Bahadur Singh for valuable consideration. Bahadur Singh is the first defendant in this action and is contesting the claim of the plaintiffs Bahadur Singh applied for substitution and in due course was substituted in the record of Suit No. 27 of 1909 as plaintiff in the place of Harbans Narain Singh. On the 7th June, 1919, Bahadur Singh obtained a preliminary decree which gave Rai Bahadur Harihar Prasad Singh the right, to redeem his mortgage. It will be remembered that, although the Rai Bahadur had attained his decree on the 4th February, 1905, the property had not passed to the plaintiffs until the 17th September, 1917. The Rai Bahadur’s decree was subject to the prior security created in favour of Harbans Narain Singh, and it might be pointed out that he did not choose to exercise his right of redemption in Suit No. 27 of 1909. The final decree in Suit No. 27 of 1909 was passed on the 8th November, 1918. Execution proceedings followed, and in due course the mortgaged properties were put up for sale and were purchased by Bahadur Singh on the 21st August, 1920. The case of the, plaintiffs is that Bahadur Singh is the benamidar of Ram. Narain Singh and that the deed of assignment was a fraud upon Rai Bahadur Harihar Prasad Singh and that itoperated as an extinguishment of the prior mortgage of the 9th June, 1302. The learned Subordinate Judge has come to the conclusion that Bahadur Singh is the benamidar of Ram Narain Singh. I will assume, though I do not decide, that the finding of the learned Subordinate Judge on this point is right; but even then, I do not see how it is possible for the plaintiffs to succeed in the action. The decree of Rai Bahadur Harihar Prasad Singh expressly provided that the sale to be held in his suit should be subject to the mortgage lien of defendants Nos. 6–14, the prior mortgagees. The plaintiffs purchased the mortgaged property at the sale held in execution of the decree obtained by the Rai Bahadur and the sale proclamation itself recited Harbans Narain Singh’s mortgage, and it stated that, having regard to the prior incumbrances, the decree-holder fixed Re. 1 to be the value of the property. There is no doubt whatever that the plaintiffs purchased the property with complete notice of the prior mortgage in favour of Harbans Narain Singh and it is difficult to understand on what principle they should claim to have priority over the principal defendant.
5. Mr. Naresh Chandra Sin ha contends that the effect of Ram Narain Singh taking an assignment of the mortgage on the 2nd July, 1912 was that an additional burden was placed on him. His first contention is that, had Ram Narain Singh carried out his bargain with the mortgagors and discharged the mortgage of the 9th June, 1902, Rai Bahadur Harihar Prasad would naturally have stepped into the position of the first mortgagee. With this contention I am unable to agree. Ram Narain Singh would undoubtedly have been entitled to be subrogated to the securities held by Harbans Narain Singh had he paid off Harbans Narain Singh out of the money advanced by him on the 23rd December 1907 to the mortgagors. It is quite true that the question whether the mortgage which is paid off is to be considered as extinguished or kept; alive for the benefit of the person who makes the payment, is a question of intention; but, as has been pointed out, every one is presumed to intend that which is manifestly for his benefit. Now, what are-the surrounding circumstances? On the 23rd December 1907, when Ram Narain Singh took a mortgage of the property, there were two outstanding mortgages, one of the 9th June 1902, the other of the 29th September 1902. It cannot for a moment be contended that Ram Narain Singh was not aware of the mortgage of the 29th September, 1902, for his mortgage bond gave him an opportunity to pay off Rai Bahadur Harihar Prasad Singh for his own protection. Now, if that be so, clearly it was to his manifest advantage to keep on foot the security of the 9th June 1902 and not to extinguish it. I quite agree that, if it could be shown that Ram Narain Singh was not aware of any other mortgage except that of the 9th June 1902, it could be argued with some show of reasoning that there would be no object in Ram Narain keeping alive the security of the 9th June 1902, since there was no other intermediate security to imperil his security; but obviously that is not the position in this case. It was for him to discharge the mortgage bond of the 9th June 1902. Having discharged that mortgage bond, clearly he would have been entitled to keep alive the security of the 9th June, 1902 for his own benefit.
6. And a perusal of the mortgage bond executed by the mortgagors in favour of Ram Narain Singh supports this conclusion. That mortgage bond provides that Ram Narain Singh should discharge the security of the 9th June 1902 and “on taking back the bonds they should keep them with themselves and should make them over to us along with this deed.”
7. “Now, there was no object in preserving the mortgage bond of the 9th June 1902 if the intention was to extinguish the security of that date. Clearly the intention of the parties was that on discharging the mortgage bond’ of Harbans Narain and others, Ram Narain Singh should step into the shoes of Harbans Narain and hold the mortgage of the 9th June 1902 as a shield against the mortgage bonds that might have, been executed by the mortgagors subsequent to the 9th June 1902, In my opinion there is no doubt whatever that, had Ram Narain Singh carried out his undertaking, the plaintiffs would have been in no better position than that which they occupy today.
8. It is next contended that Earn Narain Singh should have paid off Harbans Narain Singh on or about the 23rd of December 1907 and that the effect of not paying off Harbans Narain Singh has been to throw an additional burden upon the plaintiffs. I do not see how this question arises. The argument is founded upon the fact that on the 23rd December 1907 Harbans Narain was entitled to receive Rs. 16,064-15-6 from the mortgagors and that the amount swelled to a very large sum of money when Bahadur Singh ultimately obtained his final decree as against the mortgagors. The question that arises from the failure of Ram Narain Singh to” pay off the mortgage on or about the 23rd December, 1907, is a question between Ram Narain Singh and the mortgagors. It may be that Harihar Prasad, if he had claimed the right to redeem, might have asked the Court to open the accounts as between the mortgagors and Harbans Narain Singh in order to enable the Court to determine the terms upon which he should Ve allowed to redeem the mortgage. The question is put in this form by Mr. Naresh Chandra Sinha, had Ram Narain Singh paid off Harbans Narain Singh, the burden upon Harihar Prasad Singh would not have exceeded the sum of Rs. 16,084-15-6. Ram Narain Singh did not pay off Harbans Narain Singh, but, in fraud both of the mortgagors and of Harihar Prasad Singh, took an assignment of the security from the heirs of Harbans on the 2nd July 1912. No doubt the usufructuary mortgage bond of the 23rd December 1907 provided that Harbans Narain Singh should be paid off at once. As I have said, the delay in paying off Harbans Narain Singh is a question as between Ram Narain Singh and the mortgagors; but I am quite willing to concede that had Rai Bahadur Plarihar Prasad Singh claimed the right to redeem the property he might have asked the Court to place him in the position which he would have occupied had Ram Narain Singh carried out his bargain; but Rai Bahadur Harihar Prasad Singh never claimed the right to redeem the mortgage. In my opiniou the question does not fall to be considered since Harihar Prasad Singh never claimed the right to redeem and since his right to redeem is, by virtue of the decree in suit No. 27 of 1909, gone for ever.
9. The position is a very simple one and may be re-stated. The plaintiffs cannot claim to be in a better position than that which they would have occupied had Ram Narain Singh carried out his bargain. If Ram Narain Singh had carried out his bargain he would have been entitled to enforce the security of the 9th June, 1902. It makes no difference to the plaintiffs whether that security is enforced by Harbans Narain Singh or by Ram Narain Singh. Harihar Prasad Singh had an opportunity to redeem the prior mortgage at any time he chose and it can make no difference either to him or to the plaintiffs who have purchased the property at the execution sale held pursuant to the decree obtained by Harihar Prasad Narain Singh whether the security of the 9th June 1902, is enforced by Harbans Narain Singh or by Ram Narain Singh. In my opinion the question whether Bahadur Singh is the benamidar of Ram Narain Singh has nothing whatever to do with the question.
10. In the next place, it seems to me that the assignment taken by Ram Narain Singh in the name of Bahadur Singh on the 2nd June 1912 was a mode of performing his obligation under the mortgage bond of the 23rd December 11,07. There is of course the question of delay in performing his obligation. As I have said that question could have been raided either by the mortgagors or by Plarihar Prasad Singh had he claimed the right to redeem; but the question no longer arises. In my opinion the decree passed by the learned Subordinate Judge is right and must be affirmed. I would dismiss this appeal with costs payable to the respondents Nos. 1 to 4.
Adami, J.
11. I agree.