JUDGMENT

Oldfield, J. - It appears that Jarawan Singh and Daulat Kuar mortgaged three bighas of land, in May 1866, for Rs. 401 to one Lachman Rai, and subsequently, in June 1874, mortgaged their four annas share, which included the said land, to plaintiff.

2. In June 1878, the appellant bought the equity of redemption and paid off the prior mortgage out of the purchase-money. The plaintiff-respondent seeks in this suit to bring the said land to sale in satisfaction of his subsequent mortgage. The first Court disallowed this portion of the claim, but it was decreed by the Subordinate Judge, and the appeal, which takes exception to the decree on this point, must prevail. It has been established by rulings of this Court that, where a purchaser of the equity of redemption has a prior mortgage of his own, or gets in a prior mortgage, the prior mortgage is not necessarily extinguished, but will be presumed to exist for his benefit against subsequent mortgagees: and the law to that effect has now been settled by the recent decision of the Privy Council in Gokaldas Gopaldas v. Puranmal Premsukhdas ILR Cal. 1035 : L.R. 11 Ind. Ap. 126 a case some what similar to the one before us, where one purchasing the equity of redemption had paid off a prior mortgage on certain house property, and it was held that the prior mortgage had not become extinguished, and he had a good defence to the suit for possession of the property brought by a subsequent mortgagee.

3. Their Lordships remark that in these cases "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 shall be ascribed to him? The ordinary rule is that a man having the right to act in either of two ways, shall be assumed to have acted according to his interest."

4. So in the case before us, I hold that the prior mortgage was not extinguished, and that it affords a defence against the claim seeking to bring the property to sale. I would modify the decree of the Lower Appellate Court, and restore that of the first court with costs.

Hahmood, J.

5. The facts of the case necessary for the disposal of this appeal seem to be these:

6. The land in dispute in this appeal, namely, plot No. 111, was originally mortgaged, in 1866, to one Lachman. Subsequently, on the 9th June 1874, the mortgagors executed another mortgage of a four annas share in the village, including plot No. 111 to the present plaintiff, and, on the 29th June 1878, the mortgagors executed a deed of sale in respect of plot No. 111 in favour of the defendants-appellants for the purpose of raising money to pay off Lachman's mortgage of 1866 and other debts due by them to various creditors.

7. The object of this suit was to bring the four annas share to sale by enforcement of the lien created by the mortgage deed of the 9th June 1874. The Court of First Instance decreed the claim, but exempted the plot No. 111, on the ground that it had been purchased by the defendants-appellants by payment of consideration-money, which paid off Lachman's mortgage of 1866, which had priority over the plaintiff's mortgage of 1874.

8. The plaintiff appealed to the Lower Appellate Court, so far as the exemption of plot No. 111 was concerned, and that Court, without going into the merits of the case, modified the decree of the lower Court, by decreeing enforcement of lien against plot No. 111 also, on the ground that, even if the mortgage of 1866 had been satisfied by the purchasers of the plot, they could not claim the benefit of the priority of the mortgage, because the mortgage must be taken to have been extinguished for all purposes, and could not therefore be pleaded in defence of the plaintiff's suit, which was based upon the mortgage of the 9th June 1874. In other words, the Lower Appellate Court held that the defendants-app