JUDGMENT
1. This appeal arises out of a suit for sale on a mortgage dated the 5th of January, 1897, executed by Nain Singh defendant in favour of the plaintiff. On the 3rd of August, 1896, Nain Singh had mortgaged the same property to Umrao Singh alias Sandu Mal. On the 14th of September, 1900, Nain Singh sold his equity of redemption to the appellant, Mamraj, for Rs. 900. Out of the consideration for the sale a sum of Rs. 745 was left with the vendee for payment to Umrao Singh, the first mortgagee. He has satisfied that mortgage and his contention in this case is that the plaintiffs must pay him that amount before they can bring to sale the property mortgaged to them. This objection was overruled by the Court of first instance which relied on the case of Baij Nath v. Murli Dhar A.W.N. (1907) 85 : 4 A.L.J. 349, The lower appellate Court has confirmed the decree of the Court of first instance. Hence this appeal by Mamraj alias Mamua, on the ground that he is entitled to hold up the amount paid by him to the first mortgagee as a shield against the claim of puisne mortgagees. It is urged that the ruling on which the Courts below have relied is distinguishable from the present case and we agree with this contention. In that case the purchaser from the mortgagor had withheld, out of the consideration for the sale not only the amount of the first mortgage but also the amount due to the second mortgagee. It was held that under those circumstances he could not resist the claim of the second mortgagee and claim priority over him by reason of his having discharged the first mortgage. It is now settled law that if the purchaser of the equity of redemption discharges a prior mortgage he is entitled to hold it up as a shield against the claim of a puisne encumbrancer. This was so held by the Privy Council in Gokaldas Gopaldas v. Purnamal Premsukhdas 10 C. 1035 : 11 I.A. 126. Their Lordships observe: “The obvious question to ask in the interests of justice, equity and good conscience is what was the intention of the party paying off the charge? He had a right to extinguish it and a right to keep it alive. What was his intention? If there is no express evidence of it, what intention should be ascribed to him? The ordinary rule is that a man having a right to act in either of two ways shall be assumed to have acted according to his interest.” Following this rule it was held by this Court in Kallu v. Sant Lal A.W.N. (1896) 128, that where on the sale of the rights of the mortgagor in certain property which was the subject of two mortgages, a certain portion of the purchase-money was left with the purchasers, to pay off a prior mortgage, the purchasers must be taken to have intended to keep the first mortgage alive for their benefit and that the second mortgagee was not entitled to sell without redeeming the first mortgage. On the strength of these authorities the appellant Mamraj is entitled to be paid by the plaintiffs the sum of Rs. 745, paid by him in discharge of the prior mortgage in favour of Umrao Singh, before they can bring to sale the property mortgaged to them, under their own mortgage. We, accordingly, allow the appeal and vary the decree of the Court below so far that we direct that the plaintiffs do pay to Mamraj defendant Rs. 745, within three months from this date and that upon such payment being made the plaintiffs do recover-that amount and the amount due upon their own mortgage by sale of the mortgaged property unless the aggregate amount so due to him together with costs and interest as allowed by the Court below be paid on or before the 25th November, 1909.
2. The appellant will have his cists of this appeal including fees on the higher scale.