Judgement

Consolidated Appeals (No. 87 of 1938) from a decree of the High Court (December 1, 1936) which modified a decree of the Subordinate Judge of Howrah (January 3, 1933).

The suit out of which these consolidated appeals arose was brought on January 21, 1931, by the appellants Raja Janaki Nath Roy and Jadu Nath Roy, as mortgagees, against respondent No.1, the mortgagor, Raja Pramatha Nath Malia, and the mortgagors two sons, who were respondents Nos. 2 and 3, claiming repayment of Rs. 1,63,561-14-6, with interest, and in default of payment that properties A, 13, C and D, which had been mortgaged by respondent No. 1 to the appellants, be sold and the sale proceeds applied towards satisfaction of the debt which was due and owing in respect of the fourth mortgage on property D only. Respondent No. 4, Kumar Pramatha Nath Roy, was impleaded as a puisne mortgagee, and the question for decision was whether, as held by the High Court (Guha and Bartley JJ.), respondent No. 4 was entitled to be treated as a mortgagee of the properties A, B and C ranking in priority to the mortgage thereon to the appellants, or whether, as held by the Subordinate Judge, the appellants mortgage ranks in priority to any claim by respondent No. 4.

The facts and the relevant terms of the mortgages appear fully from the judgment of the Judicial Committee.

1939. Oct. 12, 13, 16. L. P. E. Pugh K.C. and J. M. Pringle for the appellants. It is submitted that the fourth mortgage, of November 11, 1927, may be described as a "consolidation" of the whole of the advances made under that and the three previous mortgages, and that, generally speaking, the result was that there was one mortgage of all the properties A, B, C and D for the total amount due on the whole of the mortgages. To enforce their rights under the fourth mortgage the appellants were entitled to sell not only the property the subject of the fourth mortgage, but also the properties A, B, and C under the three earlier mortgages. Respondent No. 4 alleges that because of the payment in full of the sum due under the first three mortgages he had confined the appellants to selling only the property subject to the fourth mortgage, and that if there was a deficiency the appellants could not proceed against the properties of the mortgages A, B and C. That is the main dispute. There is secured by the fourth mortgage a sum which represents the totals of the three previous mortgages and the fourth mortgage itself. The fourth mortgage is therefore one which affects not only property D, but also properties A, B and C. The payment made was in fact the amount which was due on the first three mortgages. Sect. 61 of the Transfer of Property Act, 1882, abolishes the statutory right to consolidate, so there can be no consolidation unless there is a contract permitting it. There is such a contract here. Also by the contract there can be no redemption until there has been a payment of all the moneys. It is largely a question of what the intention of the parties was Gokuldoss Gopaldoss

v. Rambux Seochand (( 1884) L. R. 11 I. A. 126, 133.); Dinobundhu Shaw Chowdhry v. Jogmaya Dasi (( 1901) L. R. 29 I. A. 9, 16.); and Raghunath Prasad v. Sarju Prasad.(( 1923) L. R. 51 I. A. 101,104.) The ordinary doctrine was stated by Lord Selborne L.C. in Jennings v. Jordan (( 1881) 6 App. Cas.698, 700.) as "A mortgagee, who holds several "distinct mortgages under the same mortgagor, redeemable, "not by express contract, but only by virtue of the right "which (in English jurisprudence) is called equity of redemption,’ may, within certain limits, and against certain "persons (entitled to redeem all or some of them), consolidate "them, that is, treat them as one, and decline to be redeemed "as to any, unless he is redeemed as to all."

This Board has decided in reported cases that, by reason of the provisions of the Registration Act, an oral agreement cannot affect a mortgage; all that has happened in the present case is that a certain amou