JUDGMENT

Oldfield, J. - The plaintiff-respondent holds a deed of mortgage, unregistered, dated the 15th February 1872, executed in his favour by Ungan and others, mortgaging the property in suit.

2. The mortgagors executed another deed of mortgage, dated the 18th December 1880, which was registered, in respect of the same property, in favour of Sundar Lal; and they also executed a third unregistered deed of mortgage in respect of the same property, on the 26th July 1881, in favour of Sundar Lal. Sundar Lal obtained a decree on the 6th February 1882, upon the last deed, for sale of the property mortgaged, had it attached, and sold in execution, and it was purchased by the defendant Janki Prasad, appellant, before us. Janki Prasad subsequently satisfied the mortgage under the registered deed of the 18th December 1880, which was delivered to him. The plaintiff-respondent has brought this suit to recover the money due to him on the mortgage-deed, dated the 15th February 1872, by sale of the mortgaged property. He made Ungan the mortgagor, and Janki Prasad the purchaser of the property, defendants in the suit. We are only concerned in this appeal with the claim against Janki Prasad. The material plea that Janki Prasad set up was, that he had satisfied the mortgage-debt under the registered deed dated the 18th December 1880, and he contended that this document, being registered, will take effect as regards the property comprised in it against the unregistered deed of the plaintiff, and in consequence the latter cannot bring the property to sale in satisfaction of his claim under his deed of mortgage.

2. The Court of First Instance allowed the plea and dismissed the suit. The Subordinate Judge has disallowed the plea, and given a decree for the sale of the property. Janki Prasad, defendant, has appealed, and the grounds of appeal are, in my opinion, valid. It is now settled law by the decision of the Privy Council in Gokaldas Gopaldas v. Puranmal Premsukhdas ILR Cal. 1035 : L.R. 11 Ind. Ap. 126 that when a person purchases the equity of redemption and holds a prior mortgage of his own, or pays off a mortgage on the property, there is in neither case of necessity an extinguishment of the mortgage, and, if he so intends, it will be kept alive for his benefit, and in the absence of express evidence, such intention will be assumed if it be for his interest to keep it alive. Applying the rule to the case before us, the appellant will have the benefit of the mortgage under the registered deed dated the 18th December 1880, and he is entitled to set up the deed which he holds against the unregistered deed of the plaintiff, and it will, under the provisions of Section 50, Registration Act, take effect against the plaintiff's deed as regards the property comprised in it--Lachman Das v. Dip Chand ILR All. 851 and the plaintiff's claim to bring such property to sale to satisfy his mortgage-debt must be disallowed. I would modify the decree of the Subordinate Judge and affirm that of the Court of First Instance, which dismissed the suit, with all costs.

Mahmood, J.

3. The facts of the case, so far as they are necessary for the disposal of this appeal, are, that the property to which the suit relates was hypothecated to the plaintiff under an unregistered deed dated the 15th February 1872. The same property was, for the second time, hypothecated to one Sundar Lal, under a registered deed dated the 18th December 1880, and it was hypothecated for the third time to the said Sundar Lal under an unregistered deed of the 26th July 1881.

4. It appears that Sundar Lal sued on the bond on the 26th July 1881, and obtained a decree on the 6th February 1882, and, in execution of that decree, the defendant purchased that property at the auction-sale, at which Sundar Lal's mortgage of the 18th December 1880 was duly notified. The defendant subsequently paid off that mortgage and is now in possession. The present suit was instituted by the plaintiff for recovery of th