JUDGMENT

1. This is a plaintiff's second appeal arising out of a suit for the recovery of a sum of money. Hakim Abdul Majid, defendant 1, and Nawab Syed Ahmad Husain Khan, defendant 2, borrowed a sum of Rs. 1,000 on foot of a pronote from the plaintiff, on 23rd August 1928. On the same date they executed a security deed hypothecating certain properties belonging to defendant 1 in favour of the plaintiff. The plaintiff instituted a suit to recover a sum of Rs. 1,540 on account of principal and interest due to him by the sale of the hypothecated properties. In the plaint it was alleged that defendant 3 had purchased those properties from defendant 1 under a sale deed, dated 24th January 1929, and so she was also made a defendant in the case. The suit was contested by defendant 3 tin various grounds, but we are not concerned with most of them here. One of the pleas taken by her was that there were two previous mortgages executed by defendant 1: one of them was in favour of B. Mohan Lal and the other was in favour of Gokaran Nath. Defendant 3 paid the amounts due to these prior mortgagees and she claimed to be subrogated to their position. So far as the mortgage of Gokaran Nath was concerned, the Courts below held that defendant 3 was not entitled to claim subrogation. As regards the mortgage of B. Mohan Lal, the lower appellate Court held that defendant 3 was entitled to partial subrogation and, therefore the claim of the plaintiff was decreed subject to this condition, that out of the sale proceeds a sum of Rs. 958 together with interest on the same from the date of the mortgage of B. Mohan Lal to the date of the sale, was first to be paid to defendant 3. The plaintiff has preferred this appeal against the decision of the learned Subordinate Judge and the only point for consideration in this appeal is as to whether or not the decision of the lower appellate Court on the question of subrogation is correct.

2. Exhibit C-1 is a sale deed which defendant 1 and some other persons executed in favour of defendant 3 under which the property covered by the deed of hypothecation in favour of the plaintiff was sold to her. In the deed it is recited that a sum of Rs. 1,500 was being borrowed by hypothecation of the properties detailed in the deed for payment of the prior debt of B. Mohan Lal. The entire consideration money was paid in the presence of the Sub-Registrar. There is no mention in this sale deed that on payment to B. Mohan Lal, defendant 3, would step into his shoes. In other words, the deed does not refer to any right of subrogation. The learned Counsel appearing for the plaintiff-appellant has relied on the provisions of Section 92 of the amended Transfer of Property Act, which enacts that

any of the persons referred to in Section 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. The right conferred by this section is called the right of subrogation, and a person acquiring the same is said to be subrogated to the rights of the mortgagee whose mortgage he redeems. 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. Nothing in this section shall be deemed to confer a right of subrogation on any person unless the mortgage in respect of which the right is claimed has been redeemed in full.

3. The words

if the mortgagor has by a registered instrument agreed that such person shall be so subrogated

which appear in Clause 3 of Section 92, T.P. Act, will have an important bearing on the case. Before we proceed to consider whether or no defendant 3 can claim a right of subrogation, it a