JUDGMENT

Stuart and Kanhaiya Lal, JJ. - This appeal arises out of a suit brought by the plaintiff (appellant) for the redemption of a two-thirds share of Katra Gulab Singh situated in Kashmiri Bazar, Agra. The Katra originally belonged to Dhumi Singh, who left three sons, Jwala Prasad, Bhawani Shankar and Debi Shankar. On the 28th of November, 1877, these three brothers mortgaged two stables and a house situated in Katra Gulab Singh in favour of Sukhdeo Rai. The mortgage was simple. On the 6th of March, 1878, the three brothers mortgaged the said Katra Gulab Singh with other properties with possession in favour of Sheikh Abdullah. On the 30th of May, 1878, two of them, Bhawani Shankar and Jwala Prasad, mortgaged their two-thirds share of Katra Gulab Singh in favour of Durga Prasad.

2. On the 15th of August, 1879, Sukhdeo Rai sued on his mortgage of the 28th of November, 1877, without impleading Sheikh Abdullah or Durga Prasad, and obtained a decree for sale, in execution of which the mortgaged property, namely, two stables and a house in Katra Gulab Singh, was sold by auction and purchased by Sheikh Abdullah, the subsequent usufructuary mortgagee. On the 12th of October, 1879, Durga Prasad sued on his mortgage of the 30th of May, 1878, without impleading any of the prior mortgagees and got a decree for sale, in execution of which he brought to sale the two-thirds share of his mortgagors in Katra Gulab Singh and purchased it himself.

3. The present suit has been filed by the plaintiff (appellant), who is the son of Durga Prasad, for the redemption of the usufructuary mortgage of the 6th of March, 1878, in respect of that two-thirds share. The defendants are the sons of Sheikh Abdullah. One of them disclaimed any interest in the mortgage; the other defendants pleaded that they had spent a considerable amount in the repairs and improvements of the mortgaged property and that a sum of over a lakh and seventy-six thousand was due to them under the mortgage. There were other pleas, too, with which this appeal has no concern.

4. The court of first instance held that the contesting defendants had spent Rs. 1,000 in repairs, that they were not entitled to claim the cost of any additions or improvements made by them, and that Rs. 8,343-5-4 were due to them on. account of a two-thirds share of Katra Gulab Singh purchased by the plaintiff. It decreed the claim accordingly for redemption, subject to the payment of the said amount. On appeal the lower appellate court allowed to the defendants a right to redeem the mortgage of the 30th of May, 1878, on the payment of the amount of the decree obtained on foot of that mortgage by Durga Prasad, within a certain date, and further directed that if such payment was not made, it shall proceed to determine upon payment of what amount the plaintiff should be allowed to redeem the mortgage held by the defendants. In effect it recognized the right of the defendants, who had purchased two stables and a house in Katra Gulab Singh in satisfaction of the mortgage of the 28th of November, 1877, to redeem the subsequent mortgage of the 30th of May, 1878, in preference to the plaintiff who by virtue of his purchase claimed a right to redeem the prior usufructuary mortgage of the 6th of March, 1878.

5. No question of preference is, however, really at issue. No right of redemption was claimed by the defendants in their written statement or otherwise asserted in the course of the trial. The rights of the original mortgagors have been split up. The defendants have purchased two stables and a house in Katra Gulab Singh in satisfaction of a prior mortgage and they are entitled to retain the same until some person entitled to redeem comes forward to pay the money due on that mortgage. The plaintiff holds the rights of a puisne mortgagee under the mortgage of the 30th of May, 1878, and has purchased the rights of two of the mortgagors in Katra Gulab Singh in satisfaction of that mortgage. A portion of the rights of the or