JUDGMENT

Bennett, J - The question referred to the Full Bench is:

Is a subsequent mortgagee who redeems a prior mortgage with money left with him for that purpose by the mortgagor subrogated to the rights of the prior mortgagee under Section 92, T.P. Act, if the mortgagor has not by a registered instrument agreed that he shall be so subrogated?

2. The facts of the ease giving rise to this question are narrated in detail in the referring order and it is unnecessary to repeat them. The referring order also shows the views taken at different times by this Court and by the Madras and Allahabad High Courts. The question was answered in the negative by a si(Pat.)ngle Judge of this Court in Mt. Jaidevi Kuwar v Sripal Singh and in the affirmative by a divisional Bench in Sukhram Das v. Mahbub Khan, A.I.R. 1935 Oudh. 399. That decision is the last decision of a Bench of this Court on the point. A Pull Bench of the Allahabad High Court in Tota Ram v. Ram Lal , AIR1932All489 held that the subsequent mortgagee could claim subrogation in the circumstances stated, while in Hira Singh v. Jai Singh , AIR1937All588 another Pull Bench of the same High Court accepted the view of the Madras High Court in Lakshmi Amma v. Shankara Narayana Menon, A.I.R. 1936 Mad. 171 that he could not. We have been referred in arguments on the reference to numerous other authorities, but, for the present, I need only mention that the view of the Allahabad High Court in Hira Singh v. Jai Singh, AIR1937All588 , has been recently adopted by the Bombay High Court in Narayan Divakarappa v. Parameshvarappa Bhimappa, A.I.R. 1942 Bom. 98. The same view was also taken by the Calcutta High Court in Mukaram Marwari v. Mahammad HosainA.I.R. 1936 Cal. 42. The provisions of Section 92, T.P. Act, to be considered are those contained in paras. 1 and 3. The first paragraph reads:

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.

Of the persons referred to in Section 91 as entitled to redeem the mortgaged property I have to consider for the present purpose only those described in Clause (a) of that section, namely, "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."

Paragraph 3 of Section 92 reads:

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.

3. It has been held in some cases that the provisions of these paragraphs are mutually exclusive and learned Counsel on each side in the present case have based their arguments on this view. I see no reason to doubt its correctness. These provisions were introduced into the Transfer of Property Act by the Amendment Act of 1929. Previously the Transfer of Property Act merely provided (in Section 74) that a subsequent mortgagee on paying off a prior mortgage should obtain the rights and powers of the prior mortgagee. This provision is reproduced with certain changes in para 1 of Section 92 which embodies what has been described as the right of legal subrogation enjoyed by a person who has some interest to protect. The right conferred by the third paragraph has been described as the right of conventional subrogation which takes place where a person, without necessarily having any interest to protect advances money for the purpose of redeeming a mortgage under a registered agreement that he will be subrogated to the rights of the mortgagee. This paragraph does not indicate by whom the mortgage shall be redeemed, whe