The judgment establishes the legal principle that a person who pays off a mortgage debt and has an interest in the property is entitled to claim subrogation under the Transfer of Property Act.

Pollock, A J C—This appeal arises out of a suit for foreclosure on a mortgage dated 12th August 1921 executed in the plaintiff's favour by two persons who are now represented by the first three defendants. There had been a previous mortgage on 24th March 1920 in favour of a co-operative society. On 22nd February 1934 defendant 4, who is the appellant in this Court, purchased the mortgaged property and, as part of the consideration for the sale, undertook to pay off the mortgage debt due to the co-operative society. He paid off that debt on 24th March 1933 by a payment of Rs. 174-11-0. The only question for decision in this appeal is whether defendant 4 can claim that he is subrogated to the rights of the prior mortgagee and that he is entitled to set up this prior mortgage as a shield against the subsequent mortgagee. The decision of this question depends on the interpretation of S. 92, T. P. Act, which was inserted in that Act by the Transfer of Property Amendment Act (20 of 1929), which came into force on 1st April 1930. Para. 3, S. 92, runs as follows :

A person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such person shall be so subrogated.

2. Both the lower Courts have held that as there was no registered agreement that defendant 4 should be so subrogated his claim for subrogation must fail. Defendant 4 however relies not on that paragraph but on the first paragraph which runs as follows:

Any of the persons referred to in S. 91 (other than the mortgagor) and any co-mortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee.

Defendant 4 was undoubtedly one of the persons referred to in S. 92, which includes any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged, or in or upon the right to redeem the same. Defendant 4 also redeemed the property subject to the mortgage. On the plain interpretation of S. 92 then defendant 4 would appear to have the same rights as the mortgagee whose mortgage he redeemed against any other mortgagee. It has been urged that this paragraph is subject to para. 3, but there is nothing in the section to suggest this, and para. 3 appears to be clearly intended to apply to persons who have advanced money to redeem a mortgage without themselves having acquired any interest in the mortgaged property. In his Law of Transfer in British India, in commenting on para. 3, S. 92, Sir Hari Singh Gour states in para. 2333, Vol. 2, Edn. 6.

3. A person who has purchased the equity of redemption need not take the writing since his right to subrogation would accrue under para. 1, and in my opinion this is the only possible interpretation of that paragraph. It has however been argued that defendant 4 in paying off the mortgage debt due to the co-operative society was only discharging a liability that he had undertaken and that by the performance of his own obligation he acquired no right of subrogation. For this proposition reliance has been placed on several cases, of which I may mention 1932 P C 99 Jagmohan Das v. Jugal Kishore, 1932 AIR(PC) 99 Mukaram v. Mahammad Hosain, 1936 AIR(Cal) 42. Both these decisions however arose out of suits that were filed before Act 20 of 1929 came into force. The law as it now stands was discussed by a Full Bench of the Allahabad High Court in 54 All 897 Totaram v. Bam Lal, 1932 AIR(All) 489. In the course of that judgment at p. 901 the learned Judges remarked :

The doctrine of agency has much to be said against it. To start with, there does not appear to be any difference in principle between a case where a purchaser or a third mort