JUDGMENT <NAME>, J.

1. This appeal raises a question of subrogation. The facts necessary for the disposal of the same lie in a narrow compass. The plaintiff sued to recover a sum of Rs. 8,000 on a mortgage dated 3rd October, 1925, executed by defendants 1 to 4 and their father late <NAME> in her favour. There was a prior mortgage on the said property dated 1st August, 1914. In execution of a decree obtained thereon the property mortgaged was about to be sold. To discharge the said decree debt the mortgagors - late <NAME> and his sons - agreed to sell a part of the said property, namely, plaint items 3 to 7, 9 and 15 to defendants 6 and 7. In pursuance of the said contract, the defendants 6 and 7 obtained a sale-deed dated 2nd November, 1933, and advanced the money with which the said decree debt was satisfied. They therefore claim a right of subrogation in respect of the said sum on the ground that by their having discharged the said decree debt they are subrogated to the rights of the mortgagee under the deed dated 1st August, 1914. The learned Subordinate Judge refused to give them the said relief on the ground that there is no registered instrument reserving the right as required by Section 92(iii) of the Transfer of Property Act. It is this view that is now canvassed in this appeal by Mr. <NAME> on their behalf.

2. It is conceded that the matter is governed by Section 92 of the Transfer of Property Act, but it is contended that defendants 6 and 7 have a right of subrogation under Clause (i) of the said section. This contention is directly opposed to the interpretation placed on the said section by the <ORG> decision in <CITATION> (1935) 70 M.L.J. 1 : I.L.R. 59 Mad. 359 at 375 (F.B.). But it is contended that the observations regarding the interpretation of that section are obiter and that a different note was struck in a recent judgment by their Lordships <NAME> and <NAME>, JJ., in <NAME> v. Damodarasami A.I.R. 1938 Mad. 779. <CITATION> (1935) 70 M.L.J. 1 : I.L.R. 59 Mad. 359 at 375 (F.B.), I observed as follows:

The first clause enunciates no new principle (vide Section 74 of the Transfer of Property Act since repealed). It applies to all persons who have an interest in the equity of redemption and are under no personal obligation to discharge prior encumbrances. The third clause has been enacted to confer a benefit on persons who advance money to discharge an incumbrance only 'if the mortgagee has by a registered instrument agreed that such persons shall be subrogated.' The clause is intended to apply to all persons who acquire an interest in the mortgaged property by advancing moneys to discharge prior incumbrances and there is no warrant for restricting the scope of that clause to persons other than purchasers or mortgagees as contended by Mr. <NAME>. The distinction between the two classes of cases aforesaid, namely, those who have an existing interest in the property and those who acquire an interest therein by advancing money, is well recognised in the law relating to subrogation.

3. This is also the view taken by <ORG> pages 367 and 368 and by <ORG> (page 362). Since the date of this decision the matter was considered by a Full Bench of <ORG> and a Full Bench of <ORG>. The Full Bench decision of <ORG> is reported in <NAME> v. Jai Singh sI.L.R. (1937) All. 880 (F.B.). <NAME>, C.J., after considering the decision in <CITATION> (1935) 70 M.L.J. 1 : I.L.R. 59 Mad. 359 (F.B.) and the previous Full Bench decision in <CITATION> (1932) I.L.R. 54 All. 897 (F.B.), which was dissented from in <CITATION> (1935) 70 M.L.J. 1 : I.L.R. 59 Mad. 359 (F.B.) affirmed the view taken by us. In that case certain properties were sold for discharging the prior encumbrances and as there was no registered instrument in the case, the right of subrogation was refused. The learned Chief Justice concluded his judgment thus:

Having paid the amounts which under their contracts of sale they were bound to pay as part of their sale consideration, and not having obtained any agreement in writing registered that they would be subrogated to the rights of the prior mortgagee, they are not entitled to any such benefit.

4. The Full Bench decision of <ORG> is reported in <NAME> v. <NAME> I.L.R. (1938) Nag. 206 (F.B.). The actual decision in that case is that:

A purchaser of a property with whom is left part of the consideration of the sale in his favour for paying off a mortgage but in whose favour there is no express agreement of subrogation in writing registered is not entitled to claim subrogation against a later mortgagee under Section 92 of the Transfer of Property Act as amended by Act XX of 1929.

5. It also affirms the view taken by us in our <ORG> decision. Mr. <NAME> canvasses the reasoning in both the above judgments. What he contends for is that the interpretation placed on Section 92 (iii) of the Transfer of Property Act was based upon a principle which according to him was not well founded. In the course of the <ORG> judgment in <CITATION> (1935) 70 M.L.J. 1 : I.L.R. 59 Mad. 359 (F.B.), Varadachariar,. J., observed thus:

There is a well-established distinction between cases in which a person who has a pre-existing interest in property pays off a prior charge on that property for the protection of his own interest and cases in which a person acquires an interest in property only by reason of his advancing money to pay off an existing mortgage debt. It seems to me that the first clause of Section 92 must be held to relate to the first type of cases above referred to and the third clause to the second type.

6. This is also the view which I took. It is this view which Mr. <NAME> questions and in support thereof relies upon the observations of <NAME>, J., in <NAME> v. Damodarasami I.A.R. 1938 Mad. 779. The learned Judge remarks thus at page 783:

We must say we find it difficult to follow the distinction adverted to. between a person with a pre-existing right and a person acquiring a right by reason of the advance he makes. Not the slightest support is to be found for this supposed distinction in any of the rulings of <ORG>; on the contrary, as already shown, it finds no countenance in them.

7. But the learned Judge did not however express any opinion on the interpretation placed by us. The learned Judge again remarks:

To construe Clause (i) and (iii) of the new Section 92 is not within our purview. It is not therefore for us to say whether the construction adopted in <CITATION> (1935) 70 M.L.J. 1 : I.L.R. 59 Mad. 359 (F.B.) is right or not, whatever may be our own view on the matter.

8. Mr. <NAME> contends that the observations of <NAME>, are well founded in principle and the distinction sought to be made in <CITATION> (1935) 70 M.L.J. 1 : I.L.R. 59 Mad. 359 (F.B.) does not exist and that on a proper construction of Section 92 , a person who advances money to a mortgagor and takes a mortgage or sale would come within Clause (i) of Section 92 . Considerable reliance was placed upon certain decisions of <ORG> and the interpretation placed upon them by our <ORG> and other <ORG>s. Those decisions are <NAME> v. <NAME> (1883) L.R. 10 I.A. 62 : I.L.R. 9 Cal. 961 (P.C.), <NAME> v. <NAME> (1884) L.R. 11 I.A. 126 : I.L.R. 10 Cal. 1035 (P.C.), <NAME> v. <NAME> (1901) 12 M.L.J. 73 : L.R. 29 I.A. 9 : I.L.R. 29 Cal. 154 (P.C.) <CITATION> (1912) 22 M.L.J. 468 : L.R. 39 I.A. 68 : I.L.R. 39 Cal. 527 (P.C.) and <NAME> v. Jugal Kishore A.I.R. 1932 P.C. 99 (P.C.). I shall now proceed to examine the soundness of the contention and the scope of the said <ORG> decisions. The cases in <NAME> v. <NAME> (1883) L.R. 10 I.A. 62 : I.L.R. 9 Cal. 961 (P.C.) and <NAME> v. <NAME> (1884) L.R. 11 I.A. 126 : I.L.R. 10 Cal. 1035 (P.C.) were decided before the Transfer of Property Act (1882) was enacted and the other cases were decided after the enactment of the Act but before the recent amendment in 1929 and 1930. Both in 9 and 10 Calcutta cases, their Lordships applied certain rules of English Law as rules of justice, equity and good conscience. They approved "of the rule in <NAME> v. <NAME> (1877) 5 Ch.

D. 634 and disapproved of the rule in <NAME> v. <NAME> (1817) 3 Mer. 210 : 36 E.R. 81, the one on the ground that it was in consonance with the rules of justice equity and good conscience and the other, on the ground that it was not. I shall first explain the scope of the rule in <NAME> v. <NAME> (1817) 3 Mer. 210 : 36 E.R. 81. It is well settled that a mortgagor who has created more than one encumbrance cannot set up a prior encumbrance which he has discharged against a later encumbrance. This is on the principle that a person who borrows money cannot be his own creditor and he would be derogating from his own grant. But <NAME> v. <NAME> (1817) 3 Mer. 210 : 36 E.R. 81 carried the principle a step further and applied the same principle to a person who acquired an equity of redemption. The soundness of the decision was always questioned in English Courts though it was not overruled. Its application was limited as far as possible. The limit of the rule as enunciated therein is thus explained by Lord <NAME> in <NAME> v. <NAME> (1895) A.C. 18:

A purchaser who took a conveyance purporting to be free from encumbrances could not set up a mortgage which had been paid off out of the purchase money against an encumbrance subsequent in date of which he had constructive notice. The authority of that case cannot nowadays be treated as going beyond the actual decision.

9. This rule was considered by their Lordships of <ORG> as not being in accordance with justice, equity and good conscience. They further stated that they were not prepared to extend that doctrine to India.

10. I shall now deal with the rule in <NAME> v. <NAME> (1817) 3 Mer. 210 : 36 E.R. 81. In that case, <NAME>, M.R., after laying down the general proposition that the mere fact of a charge having been paid off does not decide the question whether it is extinguished, proceeded to explain in what cases it could be said to have extinguished and in what cases, not. He instanced the case of a charge paid off by a tenant for life without any expression of his intention and in such a case he observed that it was presumed that his intention was to keep it alive. He then proceeded to instance the case of an owner of an estate in fee or tail. In dealing with, this, he observed the presumption was the other way remarking that if there was no reason for keeping it alive, equity, would, in the absence of any declaration of his intention, destroy it, but if there was a reason for keeping it alive, equity would not destroy it. He then took the case of a purchaser and observed that if he paid off a charge, he might have it assigned to a trustee for himself or might have a declaration inserted in the deed that the charge should be treated as remaining on foot for the purpose of protecting him against any encumbrances. The learned Master of the Rolls then wound up thus:

The intention, therefore, if expressed, governs the case, but if no intention is expressed, then <NAME> v. <NAME> (1817) 3 Mer. 210 : 36 E.R. 81 says that in the incumbrance which is paid off is merged, and the subsequent incumbrancers let in.

11. On the actual facts of that case, he found that the intention was clearly shown not to let in the subsequent incumbrancer. According to <NAME> v. <NAME> (1877) 5 Ch. D. 634, a purchaser who pays off a charge must show an intention to keep it alive if he wishes to prevent its merger and such an intention was shown in that case. (This is also how Lord Justice <NAME> understood the case.) See <ORG> v. <NAME> (1896) 1 Ch. 726 at 734. Let us see how <ORG> applied the rule. In 9 <NAME> case the right of subrogation was negatived. In that case one <NAME> as the agent of an <NAME> executed a mortgage in favour of one <NAME>. During that time one <NAME> was the <NAME>. After the death of <NAME> disputes arose between <NAME> and another as to succession. In 1872 <NAME> purporting to act as the proprietor executed a mortgage in favour of one <NAME> and a part of the consideration for the mortgage was utilised in discharging the prior mortgage in favour of <NAME>. Their Lordships of <ORG> after citing the rule in <NAME> v. <NAME> (1877) 5 Ch. D. 634 as enunciated by <NAME>, <NAME>, proceeded to apply the said rule in the following words:

Applying that rule to the present case, it must be presumed, in the absence of any expression of intention to the contrary, that <NAME>, who when he borrowed the money to pay off <NAME>'s mortgage, claimed to be the owner of the estate, and was stated on the face of the bond to be so, intended that the money should be applied in paying off that mortgage, and in extinguishing the charge, there being no intermediate encumbrance. Although the money was paid by the plaintiff's gumastha to <NAME>'s estate, it was paid with money borrowed from the plaintiff by <NAME>, and for wfeich <NAME> was liable to him. The mortgage was therefore paid off by <NAME> and not by the plaintiff.

12. It will be seen that <NAME> was treated as the owner in fee and the amount borrowed by him and paid in discharge of the prior mortgage was treated as money paid by the owner in fee. Though the money was expressly borrowed for the purpose of paying off the prior mortgage, their Lordships negatived the right of subrogation. The principle is this, that money received in consideration of a mortgage or sale of a property will be the property of the mortgagor or a vendor. Prima facie therefore the money that goes in discharge of the prior mortgage will be the money of the mortgagor or the vendor and therefore it will be payment by the owner in fee. Though in that case it was paid by <NAME> the mortgagee's gumastha, still their Lordships observed that the mortgage was paid by <NAME> and not by <NAME>. Their Lordships remarked that as there was no intermediate encumbrance, the charge must be deemed to be extinguished and they declined to raise an equity in favour of <NAME>. In order to have this equity there must be a declaration of his intention and in the absence of such a declaration for keeping it alive, their Lordships observed that it was extinguished.

13. I shall now take the 10 Calcutta case and see how the rule was applied. In that case, a person in execution of a money decree purchased in <ORG> auction a certain property which was admittedly subject to more than one mortgage. As purchaser of the equity of redemption, after the purchase he discharged the first mortgage and was held entitled to the right of subrogation in respect thereof against the later mortgage. After referring to <NAME> v. <NAME> (1877) 5 Ch. D. 634 and <NAME> v. <NAME> (1817) 3 Mer. 210 : 36 E.R. 81, Sir <NAME> formulates the question thus and answers it:

The obvious question to ask in the interests of justice, equity and good conscience is, what was the intention of the party paying off the charge? He had a right to extinguish it and a right to keep it alive. What was his intention? If there is no express evidence of it, what intention should be ascribed to him? In the familiar instance of a tenant for life paying off a charge upon the inheritance, he is assumed, in the absence of evidence to the contrary, to have intended to keep the charge alive. It cannot signify whether the division of interests in the property is by way of life estate and remainder or by way of successive charges. In each case it may be for the advantage of the owner of a partial interest to keep on foot a charge upon the corpus which he has paid.

14. Their Lordships therefore treated the case of a purchaser of an equity of redemption in exactly the same position as a life tenant, that is, a person having an existing interest in the property and discharging a prior mortgage by reason of such an existing interest and not being under a personal liability to pay the charge or being under a contractual liability to pay the encumbrance. The expression "the owner of a partial interest" would take in the case of a second and every subsequent mortgagee. The money that is paid by the second mortgagee or the purchaser in such a case would be his own money and cannot in any sense be considered to be the money of the mortgagor because the money is paid as owner of an existing interest, that is, the purchaser as owner of equity of redemption. Where a mortgagor mortgages or sells a property for discharging a subsisting mortgage, whether the mortgagor discharges by receiving the money or the mortgagee or vendee discharges by covenanting to do so retaining the consideration money for the mortgage or sale, it will in either case be a discharge by the mortgagor. Where the mortgagee or vendee covenants with the mortgagor to discharge a particular incumbrance, he assumes the duty of the mortgagor. Prima facie therefore as stated by <NAME> in his book on 'Mortgages', Section 258 :

If the money be paid by one who has assumed the duty of paying the debt, either by contract with the mortgagor or with those who may have succeeded to his rights, this must be taken, as regards other subsequent interests, as a payment and as the payment was in pursuance of his agreement, it may be regarded as made with the mortgagor's money. ( Section 864 .)

15. In dealing with the case of a mortgagee who purchases an equity of redemption, Vice-Chancellor <NAME> in <NAME> v. <NAME> (1877) 5 Ch. D. 634 states the principle thus at page 642:

A mortgagee who purchases an equity of redemption from a vendor liable to pay the mortgage debt, ought, it would seem, in the absence of contract to the contrary, ordinarily to be considered as giving up his claim as creditor against the estate, and not merely his personal remedy against the mortgagor. The parties can well arrange to the contrary, but not doing so, it seems reasonable that the debt satisfied for one purpose should be deemed satisfied for all purposes. That this involves a second mortgagee being placed in a better position than he previously was, does not seem to me to affect the question. Indeed the improved position of the second mortgagee would seem, after all, to be only consistent with his contract, if such contract be considered (as it reasonably maybe) to have been a contract that he should have a security on the property, but subject to a prior charge so long as the creditor having that charge remained unpaid.

16. It will be seen from this passage that it is open to the parties to arrange to the contrary. Of course, where no such arrangement is made, the English law modified the rule in <NAME> v. <NAME> (1817) 3 Mer. 210 : 36 E.R. 81, where a person advancing the money had no notice of an intermediate encumbrance or other circumstances which would raise equity in his favour. Even in such cases where from the terms of the mortgage deed or purchase deed it is clear that the intention to keep alive a charge is inconsistent with the real intention of the parties it would not be kept alive because the mortgagee or purchaser finds it would have been better for him to have kept the charge alive. Vide the observations of Lord Justice <NAME> in <ORG> v. <NAME> (1896) 1 Ch. 726 at 734. <NAME> v. <NAME> (1883) L.R. 10 I.A. 62 : I.L.R. 9 Cal. 961 (P.C.) illustrates this rule very clearly. That case was one in which the mortgagee had not an existing interest but acquired an interest in consideration of certain money paid to the mortgagor and prima facie the money so paid to the mortgagor would be the money of the mortgagor with which the prior mortgage would have been redeemed. Both these cases illustrate the distinction between the case of a person having an existing interest and the case of a person acquiring an interest. As I said, these cases arose before the Transfer of Property Act was enacted.

17. Now let us see how the matter stood under the Act. Sections 74 and 75 of the Act enacted that every second or subsequent mortgagee on discharging a prior mortgage will be entitled to all his rights. The sections gave effect to the recognition of the principle that a person having an existing interest and not being under personal or contractual liability to pay an encumbrance is entitled to be subrogated to the rights of a prior encumbrance which is discharged. Section 95 provides for the case of a co-mortgagor. Section 101 provides for the case of a union of interests, that is, the case of an incumbrancer becoming owner of the property. It was applied also to the case of a purchaser of equity of redemption discharging a prior encumbrance. It will be seen from the language of Section 74 that it is a statutory right and the <ORG> do not go into the question whether it was for the benefit of the subsequent mortgagee to keep the prior mortgage alive or not; the presumption which was automatically raised in such cases in England was recognised as a statutory right.

18. In the case of a person who advances money for the purpose of paying off a mortgage and takes a mortgage or sale, the principle would be that prima facie the prior mortgage is discharged unless there is an agreement that it should be kept alive or the mortgagee or the vendee shows that there is some reason for presuming or implying such an agreement in his favour as the subsistence of an intermediate incumbrance, that is, the onus is on him to prove it. The presumption and onus are not the same as in the two classes of cases, that is, in the case where a person having an existing interest discharges a prior mortgage and a person acquiring an interest discharges a mortgage. The result of the case-law in regard to presumption and onus in cases where a charge is not discharged by a mortgagor and in the absence of an expression of intention or an express agreement to have the charge kept alive may be summarised thus:

(1) If a charge is paid off by a tenant for life, he retains the benefit of it against the inheritance. The presumption is that he intends to keep it alive. <NAME> v. <NAME> (1877) 5 Ch. D. 634 and <ORG> In re: <NAME> v. <ORG> (1905) 2 Ch. 587 at 602. The burden of proof is upon those who allege that in paying off the charge he intended to exonerate the estate. <NAME> v. Earl of Egremont (1844) 7 Beav. 205 : 49 E.R. 1043. This is irrespective of any existence of an intermediate encumbrance. <NAME> v. <NAME> (1783) 2 Ch. 587 at 602 and <NAME> v. <NAME> (1818) 36 E.R. 751 at 784.

(2) Where a second or a subsequent mortgagee discharges a first or prior mortgage, the same presumption and onus are raised as in the case of a tenant for life. As <ORG> remarks in <NAME> v. <NAME> (1884) L.R. 11 I.A. 126 : I.L.R. 10 Cal. 1035 at 1046 (P.C.):

It cannot signify whether the division of interests in the property is by way of life estate and remainder, or by way of successive charges.

Section 74 of the Transfer of Property Act.

It would seem that <ORG> applied the principle applicable to cases coming under this class to the case of a purchaser of an equity of redemption discharging a mortgage apparently on the ground that the charge was by an owner of an existing interest. <NAME> v. <NAME> (1884) L.R. 11 I.A. 126 : I.L.R. 10 Cal. 1035 at 1046 (P.C.). It appears to me that it would more appropriately come under the next class of cases.

(3) Where the owner of an estate in fee pays off a charge, the presumption is the other way. Equity would in the absence of any declaration of his intention destroy it, but if there was a reason for keeping it alive such as the existence of another encumbrance, equity would not destroy it. <NAME> v. <NAME> (1877) 5 Ch. D. 634 at 645; also <ORG>, In re: <NAME> v. <ORG> (1905) 2 Ch. 587 at 602.

As the learned Editor of the Article on 'Mortgages' in Hailsham's Edition of Halsbury's Laws of England, Vol. 23, points out in the footnote at page 516:

When a tenant in fee simply pays off a charge, the original presumption is in favour of merger. Where under the circumstances it is for his advantage to keep the charge alive, there may be a rebutting presumption which prevents merger.

Take the case of a person who becomes entitled to an equity of redemption by descent or devise. If he pays the charge created by his predecessor, the presumption is merger but he can keep it alive or if there is an intermediate incumbrance or other circumstances which will have to be proved, a rebutting presumption will be made in his favour. Vide the observations of Sir <NAME> in <NAME> v. <NAME> (1851) 14 Beav. 542 : 51 E.R. 394 at 397, the case of an heir discharging an encumbrance created by his predecessor. The onus of proving such circumstances is on him, though admission of them might dispense with proof in some cases.

Under this category, in my opinion, would come the case also of a purchaser of an equity of redemption discharging a mortgage. The presumption would be merger but where there is an expression of an intention or an intermediate encumbrance or such a continuance would be for his benefit, a rebutting presumption will be made in his favour. This is the rule embodied in Section 101 of the Transfer of Property Act before the Amendment.

(4) Where a person advances money to discharge a mortgage and takes a mortgage or sale, the presumption is that the mortgage is extinguished. But if it is shown that there is an intermediate encumbrance or other circumstances which raise equity in his favour, the presumption shifts or is rebutted and an agreement with the borrower that the mortgage was to be kept alive is presumed or implied. The agreement is often implied from such circumstances as an arrangement with the mortgagor that after the discharge of the mortgage the mortgage deed should be surrendered to him and a new document would be executed in his favour or a sale free from encumbrance. Vide Dinabandhu Shaw Chowdhry v. <NAME> (1901) 12 M.L.J. 73 : L.R. 29 I.A. 9 : I.L.R. 29 Cal. 154 (P.C.) and <CITATION> (1912) 22 M.L.J. 468 : L.R. 39 I.A. 68 : I.L.R. 39 Cal. 527 (P.C.). The onus is on him to prove them. <CITATION> (1897) 7 M.L.J. 198 : I.L.R. 20 Mad. 486 at 487.

Where there is no intermediate incumbrance or any other circumstances which would raise an equity in his favour, the original presumption that the mortgage is extinguished will not give place to a rebutting presumption in his favour and the onus is on him to prove that there was an express agreement to keep the mortgage alive. This principle is exemplified by the cases in <NAME> v. <NAME> (1883) L.R. 10 I.A. 62 : I.L.R. 9 Cal. 961 (P.C.) and <CITATION> (1910) 21 M.L.J. 180.

(5) Where one advances money to another for paying off a mortgage without stipulating for any security, the presumption is that the mortgage is discharged unless by an agreement with the borrower he is subrogated to the mortgage security. <NAME> v. <NAME> (1875) L.R. 2 I.A. 131 (P.C.). The rule in English law appears to be different. <NAME> v. <NAME> (1879) 11 Ch. D. 1 at 18, which appears to treat him as an equitable transferee of the debt.

19. Whether it is a case of an original presumption as in (1) and (2) or a case of rebutting presumption as in (3) and (4), the theory on which the presumption and onus are rested is that an intention in favour of a gift will not be presumed. Vide the observations of Lord Justice <NAME> in <NAME> v. <NAME> (1912) 1 Ch. 735 at 764. This judgment was upheld in <NAME> v. <NAME> (1914) A.C. 132.

20. Both <NAME> v. <NAME> (1901) 12 M.L.J. 73 : L.R. 29 I.L.R. 9 : I.L.R. 29 Cal. 154 (P.C.) and <CITATION> (1912) 22 M.L.J. 468 : L.R. 39 I.A. 68 : I.L.R. 39 Cal. 527 (P.C.) are cases of mortgages and not purchases. In the 29 Calcutta case, one <NAME> advanced a sum of Rs. 40,000 for the purpose of discharging two prior mortgages. The mortgages were discharged with the amount. A question arose whether the mortgage in favour of <NAME> had priority over an attachment of property which came into effect before the date of the mortgage. Their Lordships from the nature of the transaction inferred an agreement that the mortgages intended to be discharged should be kept alive. After referring to <NAME> v. <NAME> (1884) L.R. 11 I.A. 126 : I.L.R. 10 Cal. 1035 (P.C.), they remarked thus:

Here the mortgagor was paying off his own debts, but he was doing so for the benefit of <NAME> and in performance of the agreement with him.

21. Therefore their Lordships recognised that though the money would prima facie become the money of the mortgagor as in the 9 Calcutta case, as the money was paid in performance of an agreement with the mortgagee, it should be kept alive. This their Lordships inferred from the fact that it was intended that the mortgagee should have an unencumbered property and the charge in his favour should have priority over all other charges. It would have been very easy for their Lordships to apply the rule under Section 74 of the Transfer of Property Act by treating <NAME> as a second mortgagee; but they would not apply that section because that section was intended to relate only to a person having an existing interest in the property and discharging a prior mortgage out of his own money without being under a stipulation with the mortgagor to discharge it from and out of the consideration money for his mortgage. Therefore the distinction between a person having an existing right and the person acquiring an interest was kept in view by their Lordships of <ORG>. Again, in <CITATION> (1912) 22 M.L.J. 468 : L.R. 39 I.A. 68 : I.L.R. 39 Cal. 527 (P.C.), there was a mortgage in favour of one <NAME> on 17th February, 1888, which was effected for the purpose of discharging a zerpeshgi debt dated 20th November, 1874. Their Lordships gave the benefit of subrogation to <NAME> in respect of the zerpeshgi deed dated 20th November, 1884, by inferring an agreement that that mortgage should be kept alive. At page 554 this is what their Lordships observe:

The Rs. 12,000 lent by <NAME> were in accordance with the agreement between <NAME> and <NAME> applied in paying off the zerpeshgi debt, that on payment of that debt the zerpeshgi deed of the 20th November, 1874, was handed over to <NAME>, and that <NAME> when she lent her Rs. 12,000 intended to keep alive for her benefit and protection the charge which had been created by the zerpeshgi deed of the 20th November, 1884.

22. After referring to <NAME> v. <NAME> (1883) L.R. 10 I.A. 62 : I.L.R. 9 Cal. 961 and <NAME> v. <NAME> (1884) L.R. 11 I.A. 126 : I.L.R. 10 Cal. 1035 (P.C.), they observe that applying the rule of justice, equity and good conscience, the charge was kept alive. It is also significant that their Lordships did not apply Section 74 of the Transfer of Property Act but invoked the principle of equity, thus again illustrating the distinction between a person having an existing interest and a person acquiring an interest. This principle was again illustrated in <NAME> v. Jugal Kishore A.I.R. 1932 P.C. 99 (P.C.), where in respect of half of the purchase money their Lordships did not give the benefit of subrogation by implying an agreement because there was no intermediate encumbrance. <NAME> does recognise that 29 and 39 Calcutta cases were based on conventional subrogation and that Section 74 of the Transfer of Property Act would not apply to cases where a person is under a contractual liability to discharge a mortgage.

23. In order therefore to avoid questions of intention and onus being gone into by <ORG> and with a view to place the right of subrogation on a statutory basis the <ORG> enacted Section 92 of the Transfer of Property Act. As remarked by <NAME>, Section 92(i) deals with the case of a person having an existing interest and Section 92(iii) deals with the case where under the previous state of the law the right of subrogation was invoked on the doctrine of conventional subrogation. This follows from the plain language of the section and there is very good reason why the <ORG> adopted this view. In the case of a person having an existing interest, there is no need to resort to any agreement express or implied and Section 74 of the Transfer of Property Act before the amendment gave partial recognition in favour of second and subsequent mortgagees and Section 92(i) only extended the said principle. In other cases the <ORG> had to go into questions of intention, in certain cases coming to the conclusion that there was an intention to keep the mortgage alive and in certain other cases, that there was no such intention. The <ORG> therefore enacted the rule in Section 92(iii) as it is always open to a person who advances money to enter into an agreement. I do not see any injustice in enacting such a rule. The legislature does give the benefit of the principle of subrogation even in such cases but the legislature requires that the person intended to take advantage of the benefit must comply with certain requirements, the requirements being a registered instrument for keeping alive the prior mortgage which can always be done even by the very transaction--sale or mortgage - under which the money was advanced by making a declaration that it was agreed between the parties that the prior mortgage was intended to be kept alive.

24. It is contended by Mr. <NAME> that the words in Clause (iii), "a person who has advanced money to a mortgagor money with which the mortgage has been redeemed", are only intended to cover the case of a person who merely lends money without stipulating for any security as such a person cannot in law acquire any right of subrogation but for the statutory provision. There is no warrant for placing such a narrow construction. The words are wide enough to cover the case of a mortgagee or a vendee who advances money in consideration of a mortgage or sale. All that the section requires is that money must have been received by the mortgagor from the person who advances it and with which the mortgage must have been redeemed. What is contemplated by the section is the receipt of money by a mortgagor for the discharge of a mortgage and the redemption of such a mortgage with that money. The money may have been received by the mortgagor either by raising a loan by a mere personal security or by a transfer of the mortgaged, property by way of a mortgage or sale. In such cashes the money with which the mortgage is redeemed will be the money of the mortgagor obtained by him in any of the modes indicated above. Prima facie therefore the redemption of the mortgage being with the mortgagor's money, the mortgage is discharged. But as and by way of equity an agreement was inferred in cases where there is no express agreement for keeping the mortgage alive. As the inference of such an intention is dependent upon a number of circumstances and to avoid <ORG> going into them, Clause (111) was enacted to confer a statutory right in such cases, provided the person seeking the benefit of it fulfils the conditions mentioned in the section.

25. I am therefore of the opinion that the vendees in this case not having obtained a registered agreement stipulating that they should be subrogated to the rights of the mortgage which they have discharged, they are not entitled to set up any claim of priority over the plaintiff's mortgage. In the result, the appeal fails and is dismissed with costs.

<NAME>, J.

26. This was a suit on a mortgage dated 3rd October, 1925, executed by a Hindu father and his four major sons. Defendants 6 and 7 purchased seven items of the hypotheca on 2nd November, 1933. The sale of these items to defendants 6 and 7 was expressly stated to be in order to avoid at sale in execution of a decree based on a prior mortgage of the same property dated August, 1914. The question is whether defendants 6 and 7 are by virtue of their purchase subrogated to the rights of the mortgagee whose mortgage was redeemed with their money. The Court below has answered this question in the negative.

27. The law to be applied is admitted to be found in Sections 91 and 92 of the Transfer of Property Act.

28. In order to be subrogated to the rights of a mortgagee whose mortgage you redeem you must be either

(a) a person entitled to sue for redemption [Clause (i) of Section 92 ]; or

(b) a person who has advanced money to a mortgagor for redeeming a mortgage and a person who has contracted for subrogation with the mortgagor by a registered instrument [Clause (iii) of Section 92 ].

29. Section 91 tells us who are persons entitled to sue for redemption. The mortgagor, of course, but the equitable doctrine of subrogation obviously does not apply to mortgagors. Persons entitled to institute a suit for redemption fall into three classes only:

(1) any person who has an interest in or charge upon the property mortgaged or an interest in or charge upon the right to redeem;

(2) any surety for payment of the mortgage debt or a part thereof;

(3) any creditor of the mortgagor who in a suit for administration of his estate has, obtained a decree for sale of the mortgaged property.

30. Excluding the mortgagor, this is an exhaustive list of the persons entitled to sue for redemption. The question is whether defendants 6 and 7 fall into one or other of these categories. The answer is that they obviously do not. They were not persons entitled to sue for redemption when they purchased property burdened with a mortgage-debt. They did not therefore by their purchase 'redeem' a mortgage. Since they were not persons entitled to sue for redemption their purchase cannot be deemed in equity to be a redemption. That is the principle laid down in the first clause of Section 92 . A rule of equity has been given statutory recognition, and it has been strictly confined and limited to persons entitled to sue for redemption. A person not entitled to sue for redemption who purchases property subject to mortgage becomes ipso facto a person entitled to sue for redemption which is the very reverse of saying that he is subrogated to the rights of the mortgagee. A person not entitled to sue for redemption who buys mortgaged property (that is, advances money to the mortgagor with which the mortgage is redeemed) may however contract with the mortgagor for the right to be subrogated to the mortgagee whose mortgage has been redeemed. But the contract must be in writing and registered. That is the gist of Clause (iii) of Section 92 . It is an extension of the principle "caveat emptor". A would-be purchaser of property subject to more than one mortgage must protect himself by a registered instrument. He must contract with the mortgagor for discharge of the prior mortgagee or mortgagees and for the rights of the prior mortgagee or mortgagees, and he can only do so by a registered instrument. Where a statute is as clear as Sections 91 and 92 are, authority is strictly speaking superfluous. The state of the law on the subject of subrogation before the Amending Act (XX of 1929) is a matter of academic interest, but as a matter of fact the Amending Act merely gave effect to a simple rule of equity, the application of which to the various classes of persons who claimed its benefits was difficult. The application of this rule of equity has now been placed on a statutory and easily intelligible basis. The rule has been defined and the persons to whom the rule is applicable have been classified. Conflict of opinion has been clarified and stilled.

40. I agree with my learned brother that this appeal fails and must be dismissed with costs.

41. The decree that we pass herein will be without prejudice to the right of the mortgagors and the purchasers of the equity of redemption to claim any relief under the Madras Agriculturists' Relief Act. The application that has been filed here for this purpose will be remitted to the lower <ORG> for being dealt with on its merits.

42. The Memorandum of Cross-objections is dismissed. No costs.


JUDGMENT <NAME>, J.

1. This second Civil Appeal arises out of a suit for ejectment from a house and recovery of arrears of rent. The suit was decreed by <ORG> and an appeal from the judgment and decree of <ORG> was dismissed.

2. The suit was instituted by <NAME> (respondent in this appeal) against Smt. <NAME> (appellant in this appeal) claiming that he had terminated the tenancy by notice to quit and had obtained the permission of the District Magistrate under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act , 1947 to get over the bar to the institution of the suit created under that section. Admittedly the appellant's husband <NAME> was originally the tenant of the house on a monthly rent of Rs. 35 from its former owner <NAME>. The house was sold by <NAME> to one Smt. <NAME>. The latter in turn sold it to the respondent. After the purchase of the house, which professedly was for the purpose of his own residence, the respondent obtained the District Magistrate's permission dated 8-8-1966 to sue the tenant for eviction. He had already given a notice dated 24-3-1966 to the appellant terminating the tenancy and asking for vacation of the premises. The plaintiff filed a revision before the Commissioner but the same was dismissed on 20-1-1967. The suit was instituted the same day.

3. The suit was contested by the defendant-appellant on various grounds. The notice was said to be invalid since it was not given after grant of permission, and the permission to be invalid as the purchase was with full knowledge of the tenancy. <NAME>, who had died about 10 years before suit, had left, besides his widow (appellant), three sons and daughters from her as also two sons from an earlier wife. Since permission had been obtained to file a suit against the widow and not the sons and daughters of <NAME> and the notice terminating the tenancy had also been addressed to, and served upon, the widow alone, it was pleaded that the notice was bad for that reason and the permission was also illegal and without jurisdiction. The suit was also said to be not maintainable on the ground of the State Government having passed a stay order on the filing of a revision application by the defendant under Section 7-F of the aforesaid Act.

4. As to the plea of the notice being invalid on the ground that it was not given after the grant of permission by the District Magistrate, not again after the confirmation of the District Magistrate's order by the Commissioner, the learned Additional <NAME> who tried the suit held that it was not necessary to give the notice after the grant of permission and that it could be given before that. The plea has not been pressed again at least in this Court, and for obvious reasons, as it has been held in several decisions of this Court that it is not necessary that the notice under Section 106 of the Transfer of Property Act be given only after the permission to evict has been obtained. About the additional ground (raised by an amendment of the written statement) that the notice was bad because it had been both addressed to and served upon the appellant alone though <NAME> had left other, heirs and the tenancy devolved upon those other heirs also, the learned <NAME> held that the appellant alone had been acting as, and asserting herself to be, the tenant and had for all practical purposes been recognised as the tenant and she was thus the sole tenant He was further of the opinion that even if the sons and daughters had inherited the tenancy rights they had impliedly surrendered those rights in favour of their mother. For these reasons he held the notice to have been rightly given to the appellant alone.

5. Regarding the plea of invalidity of the permission, it was conceded before the learned <NAME> on the defendant's side that permission granted against one co-tenant held good against all the co-tenants. He held that the defendant had failed to show in what respect otherwise the permission was illegal and without jurisdiction. On the plea that <ORG> had stayed the operation of the order of the lower authorities granting permission and the suit was therefore, not maintainable, the learned <NAME> found that no order of stay of <ORG> was on the record and so he rejected the plea.

6. After deciding also the minor controversies which related to the arrears of rent and damages, <ORG> decreed the suit for ejectment and for recovery of a lesser amount as arrears of rent besides damages for use and occupation.

7. In the appeal filed by the defendant Smt. <NAME> the second Additional Civil Judge who disposed the same held that it being undisputed that a tenancy is heritable in the absence of a contract to the contrary and that <NAME> had left surviving him not only the appellant but also sons and daughters, those sons and daughters also became co-tenants of the house with the widow. However, relying on the decision of <ORG> in <CITATION> , AIR 1963 SC 468 he held that the notice to the widow alone to determine the tenancy was sufficient and the suit for ejectment filed against her alone was also good at law. In regard to the permission, he too held that nothing had been shown as to how the permission was illegal or without jurisdiction and that so far as the ground that it was obtained against one of the co-tenants only was concerned, the decision in the case <CITATION> , 1958 All LJ 573 = (AIR 1959 All 33) showed that the permission obtained against one co-tenant was good against the entire body of the class designated as 'the tenant'. The plea based on an alleged stay order by <ORG> was not seriously pressed in the appeal. Reiving upon the Full Bench case <CITATION> , 1965 All LJ 58 = (AIR 1965 All 498) (FB) the learned Judge held that the proceedings under Section 7-F aforesaid could have no effect on the suit already instituted. It may be stated that this position, has since been confirmed by the decision of <ORG> in <CITATION> , AIR 1970 SC 763 = 1968 All WR (HC) 892. The appeal was accordingly dismissed.

8. In the second appeal the same legal pleas have been reiterated and argued. Learned counsel for both the sides have been heard at length. It may be noted here that another second civil appeal No. 152 of 1967 with a similar plea about invalidity of notice given to one co-tenant only was also tacked with this appeal under decision after it had been heard in part and this appeal is being decided after hearing also learned counsel for both the sides in that other second appeal.

9. On the side of the appellant it has been urged that the decisions of <ORG> in India have no doubt been that a notice served on one of the co-tenants is a good notice to the other co-tenants but that is only where the notice is addressed to all. It is said that the notice in the instant case was addressed only to the appellant and was served only on her. For that reason the notice is said to be not in accordance with law and therefore, invalid for the purpose of terminating the tenancy. In regard to the <ORG> decision aforesaid, the argument is that the same is distinguishable because it relates to a case of "joint tenants" as distinct from "tenants-in-common" which is the position of the appellant and the other heirs of <NAME> who succeeded to the tenancy by inheritance.

Now the expression "joint tenants" has very often been used in those earlier cases too which have been cited on the appellant's side and on which reliance is placed for the argument that in order to be effective under Section 106 of the Transfer of Property Act, the notice must be addressed to all the co-tenants but it has not been urged that in those decisions also the expression "joint tenants" was intended to refer to co-tenants holding as "joint tenants" as distinguished from "tenants-in-common". It has also not been disputed that the expression "joint tenants" was used in those cases as a substitute for "co-tenants" and not with a view to indicate the nature of the estate held by the co-tenants. It therefore, needs to be examined whether the <ORG> decision referred to above was peculiar to any "joint tenancy" estate held by the co-tenants in the tenancy and whether the same is not applicable to co-tenants who got the rights of a tenant in the tenancy on his death by inheritance.

10. At the outset it may be stated that there is no controversy on the proposition that even in the case of a monthly tenancy, the tenancy is inherited by the heirs of the tenant on his death. It was so held in <CITATION> , AIR 1940 Cal 89; <NAME> v. <NAME>, AIR 1966 Cal 447 and <CITATION> , AIR 1937 Nag 321. It is also not in controversy that except in the case of coparceners in a joint Hindu family under the Hindu Law, property under various inheritance laws in this country is taken by inheritance from a deceased owner by his heirs as "tenants in common" and not as "joint tenants" as between themselves. So it cannot be doubted that as between themselves the interest which the heirs of a deceased tenant inherit will itself be heritable and will not pass by survivorship and in that sense they cannot be said to hold it as "joint tenants." That is why the expression "joint tenants" used in dealing with a case of more than one person holding together the tenancy either by original lease in their favour or by inheritance from a deceased tenant is meant to convey nothing more than the idea that such persons hold the tenancy as one entity and not that they hold that kind of estate which is governed by the rule of passing by survivorship. If the <ORG> decision in AIR 1963 SC 468 can be said to be in relation to a case of joint tenants in such ordinary sense of the expression, then it would be directly relevant to the instant case, but if it laid down law of sufficiency of notice to determine lease by being given to one of the co-tenants to a case where the co-tenants were holding the tenancy by way of an estate of "joint tenancy", then the decision would be distinguishable, though the point would still require decision whether in other cases of joint tenancy also notice to one of the joint tenants will not be good and effective in law for the purpose of terminating the tenancy. This calls for an examination of the facts of <NAME> case. AIR 1963 SC 468.

11. <NAME> case, AIR 1963 SC 468 decided by <ORG> arose out of a suit filed by the Trustees of <ORG> for ejectment of <NAME> and one <NAME> from a piece of land. The land had been leased by the Trustees of <ORG> on a monthly tenancy to two persons. Those two persons later assigned their rights in the lease to <NAME> and <NAME> and the assignment appeared to have been accepted by the lessors. Some years later, the Trustees of <ORG> sent a notice to <NAME> and <NAME> requiring them to vacate the premises and deliver vacant and peaceful possession on a certain date. On non-compliance with the notice the suit was instituted against both the persons. It however, turned out that <NAME> had died much earlier to the institution of the suit and the plaintiff therefore, amended the plaint by deleting the name of <NAME>. The suit was contested, inter alia, on the ground that the notice of termination of tenancy was Invalid inasmuch as it had been served only upon one of the lessees (that is, <NAME>) and not upon the heirs and legal representatives of <NAME>, who were also said to be necessary parties to the suit. The suit was decreed by <ORG> by holding that the tenancy was a joint tenancy and notice to one of the joint tenants was sufficient and that the suit was also not bad for non-joinder of the legal representatives of <NAME>. An appeal to <ORG> was dismissed summarily. The dispute was taken to <ORG> by <NAME> upon having obtained from that Court special leave to appeal. In paragraph 7 of the judgment of <ORG> it was observed:--

"The argument about notice need not detain us long. By the deed of assignment dated February 28, 1947, the tenants took the premises as joint tenants. The exact words of the assignment were that '.....the assignors do and each of them doth hereby assign and assure that the assignee as joint tenants.....'. The deed of assignment was approved and accepted by the Trustees of <ORG>, and <NAME> and the appellant must be regarded as joint tenants. The trial Judge, therefore, rightly held them to be so. Once it is held that the tenancy was joint, a notice to one of the joint tenants was sufficient and the suit for the same reason was also good, Mr. <NAME>, in arguing the case of the appellant, did not seek to urge the opposite, In our opinion, the notice and the frame of the suit were, therefore, proper, and this argument has no merit."

12. It can very well be argued that the expression "joint tenants" used in the deed of assignment and used in the above paragraph by their Lordships of <ORG> was meant to convey no other sense than that <NAME> and <NAME> did not take separate and exclusive interests under the assignment and that they were joint tenants in the sense that they were to hold the lease jointly and not with separate Interests therein. In the Kerala High Court case <CITATION> , AIR 1968 Ker 229 a angle Judge of that Court interpreted <NAME>'s case, AIR 1963 SC 468 to be one relating to a tenancy held by two persons as "joint tenants" in the other sense. It was observed at page 229, column 2 of the report:--

"That is clear from the emphasis placed by their Lordships on the circumstance that the tenants took the premises as joint tenants, the deed of assignment by which they acquired the lease expressly providing that they were taking as joint tenants. Where joint owners are joint tenants there is unity of title, unity of interest and the right of survivorship in addition to unity of possession so that it might be said that any one of the joint tenants represents the entire estate--indeed in the <ORG> case already referred to it would appear that one of the two joint tenants had died and the lease had vested solely in the other by survivorship before notice to quit was served on the other so that there was no question of the legal representatives of the deceased joint tenant having any interest whatsoever in the lease so as to require that notice should go to them."

The learned Judge proceeded further to observe at page 230 column 1:--

"Where, however, the joint owners are only tenants in common there is only unity of possession, not of title or interest, and to determine a tenancy so held in accordance with Section 106 of the Transfer of Property Act notice must be addressed to all the tenants though proof of service on one will be prima facie proof of service on all. <CITATION> , AIR 1918 PC 102 and <CITATION> , AIR 1925 Cal 752. In the words of the section, notice must go to every party intended to be bound by it, and if it is not issued to any of the joint owners of the lease there is no determination of the lease so far as he is concerned. A lease cannot be determined piecemeal and hence it follows that there is no determination even so far as the others are concerned."

The argument in the second quotation will be discussed later on, but the observation in the latter part of the first quotation itself would indicate that their Lordships of <ORG> had not in their mind the consideration, that <NAME> and <NAME> were owners of the tenancy as "joint tenants" in the special sense, with the right of survivorship as an incident thereof, for in that case it would have been enough for their Lordships to dispose of the controversy by merely saying that upon the death of <NAME> his interest passed to <NAME> and he became the sole lessee, with no necessity in consequence of any notice going to the heirs of <NAME> or of their impleadment as defendants in the suit. On the other hand, their Lordships proceeded to lay down that a notice to one of the joint tenants was sufficient and the suit against one joint tenant was for the same reason also good. However, reference to an old well-known <ORG> case relied upon on the respondent's side may also be made. That case is AIR 1918 PC 102 in which it was laid down that in the case of joint tenants each is intended to be bound and service of a notice to quit upon one joint tenant is prima facie evidence that it has reached the other joint tenants. There was a suit by the landlords of a piece of land against the tenants and sub-tenants who were actually in possession. The set of defendants who were the tenants consisted of seven persons some of whom were members of a joint Hindu family of which the others were once such members but had ceased to be so. This fact is significant in so far as it shows that all the seven tenants were not, as between themselves, bound by any rule of passing of their interest by survivorship. It may also be stated that they had come to possess what was formerly the tenancy holding of one <NAME> and that they were being treated as tenants in place of <NAME> who was treated as dead. In that case notice was sent to all the seven persons separately but a contest was entered into as to whether some of them who had not been personally served with notice could be regarded as duly served. It was in the context of this contest that their Lordships of the <ORG> observed at page 110, column 2 of the report at the very commencement of their discussion on this controversy:--

"Next and lastly as to the service of the notice to quit. The 106th section of the Transfer of Property Act , 1882, only requires that such a notice should be tendered or delivered to the party intended to be bound by it either personally or to one of his family or servants at his residence, or if such tender or delivery be not practicable, affixed to a conspicuous part of the property. The per-sonal tender or delivery may take place anywhere; the vicarious tender or delivery must take place at the residence of the person intended to be bound by the notice. Well in the case of joint tenants, each is intended to be bound, and it has long ago been decided that service of a notice to quit upon one joint tenant is prima facie evidence that it has reached the other joint tenants. Doe d. Macartney v. <NAME>, (1805) 5 Esp 196 = 8 RR 848, Doe d. <NAME> v. <NAME>, (1806) 7 East 551 = 8 RR 670 = 3 Smith KB 517, <NAME> v. <NAME>, (1856) 6 Ir CLR 367".

13. About this case it has been argued on the appellant's side that as a matter of fact notice was issued to all the seven co-tenants and the notice was also held to have been sufficiently served on each one of them and in the circumstances the observation that in the case of joint tenants each is intended to be bound and service of a notice to quit upon one joint co-tenant (is evidence that it has reached the other joint tenants?) is prima facie an obiter dicta. In this connection reliance was placed on the <ORG> case, <CITATION> , AIR 1967 SC 997 in which it was observed that a decision made on a concession made by parties, even though principle conceded was accepted by <ORG> without discussion, cannot be given the same value as a decision given upon a careful consideration of pros and cons of the question raised. The judgment in the case no doubt did not discuss the grounds for the rule enunciated, but that appears to be because the rule was taken to be well recognised. There were three English cases cited in that connection. At any rate, the service of a notice addressed to all the co-tenants upon one of them only has been held to be sufficient service for terminating the tenancy in a number of decisions of various <ORG> following this <ORG> case. Some of these cases are Pt. <NAME> v. L. <NAME>, 1956 All LJ 650; <CITATION> , AIR 1964 All 52; <NAME> v. <NAME>, AIR 1965 All 287; <CITATION> , AIR 1929 Cal 651; <CITATION> ., AIR 1966 Cal 63; <CITATION> in Coun-cil, AIR 1945 Nag 255; <CITATION> , AIR 1935 Bom 247 and Mst. <NAME> v. <NAME>, AIR 1964 Bom 96.

In none of these cases, however, the question arose whether a notice addressed to one or some only of the joint tenants and served upon him or some was sufficient to terminate the tenancy, since the notice was addressed to all. It was in the case, AIR 1925 Cal 752 that It was specifically decided that the notice must be addressed to all and the same view has been taken in the Kerala High Court case. AIR 1968 Kerala 229. In the Calcutta case the <ORG> case cited above was distinguished on the ground that the notices were addressed to all the joint tenants by being sent to all of them. The rases (1805) 5 Esp 196 = 8 RR 848 and (1806) 7 East 551 = 8 RR 670 = 3 Smith KB 517 referred to in the <ORG> case were also considered. The first case was said to have no value because in India the matter is governed by the provisions of the Transfer of Property Act About the other case it was said that the matter was left to the Jury. It cannot be supposed that their Lordships of the <ORG> had not in mind the statutory provision in Section 106 of the Transfer of Property Act when they laid down the rule that "in the case of joint tenants each is intended to be bound, and it has long ago been decided that service of a notice to quit upon one joint tenant is prima facie evidence that it has reached the other Ioint tenants". Indeed they were specifically considering Section 106 of the Transfer of Property Act and the use of the words "each is intended to be bound" was with reference to the language of the section. The relevant part of Section 106 is in the following words:--

"Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property."

14. One requirement under the above quoted provision is about the form of the notice, namely, that it should be in writing and signed by or on behalf of the person giving it. The other is about service of the notice.

15. It has not been laid down in the: section that the notice should be addressed to all co-tenants or to every one of them. In regard to service of notice, it is required that it be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party or to one of his family or servants at his residence, or, if such tender or delivery is not practicable affixed to a conspicuous part of the property. If the words "party who is intended to be bound by it" are interpreted to mean each one of the co-tenants where the tenancy is held by more than one person jointly, then notice must be served on each one of the co-tenants and that would be in direct conflict with the rule about which there is no controversy that service of a notice on one of the co-tenants would be sufficient service in respect of all (provided it is addressed to all). The fact of its being addressed to all will be immaterial if the notice must be served on each co-tenant individually in order that all of them may be bound. The rule of sufficiency of service of notice on one co-tenant in the case of co-tenancy can be in conformity with the requirement of the section only if the co-tenants are taken to constitute one "party" so that service on any one only of them will be service on the party intended to be bound. It must be in this background that it was laid down by <ORG> in <NAME> case, AIR 1918 PC 102 that "well in the case of joint tenants, each is intended to be bound"; in other words, if a notice is given to one of the joint tenants, it means that the joint tenants as a whole are intended to, be bound by the notice. It is an incident of 'tenancy' that it is one and even though more than one person may hold it they hold it together as one. It is well recognized that a landlord cannot terminate the tenancy piecemeal, nor can some out of the several co-tenants terminate it for themselves only. Co-tenants who come to hold a tenancy by inheritance may, for the purposes of succession have an estate as "tenants in common" and not "joint tenants", but the special incidents attaching to a tenancy will not be changed upon the tenancy passing to more than one person by inheritance. In so far as their relationship with the landlord is concerned, they hold the tenancy jointly and for the landlord they constitute one unit. So even if a notice is addressed to one or some of the co-tenants, it must be effective as against all, the only limitation to this being that there is nothing to show that the tenancy is intended to be terminated piecemeal and it is clear that the intention is to terminate the tenancy as a whole. It appears that it is by way of this safeguard that while laying down the rule in the several decisions mentioned above that service of notice on one co-tenant will be sufficient service of notice for terminating the tenancy that the qualification has been added that the notice should be addressed to all the co-tenants. There does not appear to be any sanctity otherwise behind this qualification. In this connection the following passages from the report of AIR 1964 Bom 96 which, if I may say so with respect, contain also my line of thinking, may be usefully reproduced:--

"(11) In this connection it is contended by the learned counsel for the appellants that the provisions of Section 11 of Hindu Succession Act in terms lay down that, property acquired by heirs who inherit by intestate succession is acquired by them as tenants-in-common and not as joint tenants. In this context reference is also invited to paragraph 31 of Mulla's Hindu Law, page 99, 12th edition. In my judgment, the phrase "tenants-in-common" or "joint tenants" used in Section 19 of the Hindu Succession Act or in other texts, when considering the rights of owners of property inter se cannot be confused with the right to hold land as joint tenant in the sense as joint lessees or co-lessees or co-tenants of property such as the subject-matter of the suit. The word "tenant" in Section 19 is not used in the sense of lessees. That word is used in the sense of owners of property whether they are joint owners of property or holding in defined shares. It is an incident of ownership that has been referred to in Section 19 and that incident in the case of persons holding as tenants-in-common is that the devolution in the case of each of these tenants-in-common would be according to the personal law while in the case of persons holding as joint tenants it will be by survivorship. The expression is not germane in deciding whether the leasehold is held as joint tenants. That expression may have led to some confusion and it is preferable to refer to rights of more than one person holding under the leasehold vis-a-vis the landlord as co-tenants or co-lessees. If understood in that sense, there will be no difficulty in holding that all the co-lessees or co-tenants held as joint tenants in the sense that they have a single tenancy relationship with the landlord and they are not different tenants vis-a-vis the landlord.

(12) If this is the correct interpretation of the position of persons even succeeding under Section 19 to a leasehold interest of the deceased Hindu, there would be no difficulty in holding that notice to one of the joint tenants in this case should be held to be a valid and good notice provided notice is intended to be notice to all these joint tenants. It is in that sense that the decision of <ORG> in ILR 46 Cal 458 = (AIR 1918 PC 102) has been applied in several Courts."

16. In contrast, the view taken in the Kerala case, on the one hand, that the expression "party intended to be bound by it" means in the case of co-tenants, each co-tenant individually and, on the other hand, that notice can be served on one of them to bind all, would appear to be self-contradictory and also in conflict with the provisions of Section 106 about service of notice with the said interpretation of that expression.

17. I accordingly hold that both on the authority of <NAME> case, AIR 1963 SC 468 aforesaid and otherwise (i.e., if it applies only to joint tenants with right of survivorship) the notice served on the appellant was sufficient to terminate the tenancy since on the facts of this case, it must be inferred that by the notice it was intended to terminate the tenancy as a whole and not in part.

18. It may be noted that the appellant was for all practical purposes acting as the tenant. She admitted the averment in the plaint that the house was in her tenancy. It was for the first time in her written statement that she referred to the existence of her sons and daughters. The plea of those sons and daughters being also tenants was raised by an amendment of the written statement. She has deposited rent under Section 7-C of the U.P. (Temporary) Control of Rent and Eviction Act describing herself as the tenant. The notice required the vacation of the house which meant house as a whole and not in part. In the permission proceedings also personal necessity for the house as a whole and not in part was disclosed.

19. As has already been stated, it was conceded in the first appellate Court that the permission was not invalid on the ground of having been obtained against the appellant alone. Though no grounds were put forward in the courts below for the permission being invalid otherwise or without jurisdiction, it has been argued in this Court that the permission is invalid and without jurisdiction for want of considering the needs of the tenant as well as required according to the Full Bench case of this Court, <NAME> v. <NAME>, 1968 All WR (HC) 572 = (AIR 1969 All 474) (FB). It is however incorrect to suggest that in the case under consideration the District Magistrate did not consider whatever case was put up by the appellant. On her behalf it was only said that she was a poor lady and had no source of income to make her both ends meet during these hard days. That did not mean that she required the house in dispute in particular for her residence. She was only interested in refuting the case of personal needs advanced by the respondent before the District Magistrate. Accordingly the plea of invalidity on the new ground taken in this Court has also no substance.

20. In the result the appeal must fail. It is dismissed with costs and the order of stay against execution is vacated


JUDGMENT <NAME> and <NAME>, <NAME>.

1. The question raised in this appeal is whether the plaintiff, suing for arrears of rent, and having been a minor at the time when one portion of the arrears accrued due, is entitled to the benefit of Section 7 of the Limitation Act; and to bring his suit to recover those arrears after the period prescribed by the law for such suits in general.

2. The lower <ORG> has held that the plaintiff is not entitled to the benefit of Section 7 . The Subordinate Judge was of opinion that Section 7 of the Limitation Act was not applicable to suits for rent under Bengal Act VIII of 1869, under which this suit was brought, because that Act provides a special period of limitation for suits brought to recover arrears of rent, and the schedule to the Limitation Act provides no period for such suits. Section 7 of that Act allows a minor such further time after he has attained his majority as would otherwise have been allowed from the time prescribed for such suit in the third column of the second schedule annexed to that Act. As suits for rent do not come within that schedule, the <ORG> held that that section was not applicable: and it appears to us that it was correct in the view which it took.

3. There is one authority pointed out to us by the pleader for the appellant as being against him. That is a case of <NAME> v. <NAME> 5 W.R. (Act X Rul.), 41. On the other hand, the learned pleader relies upon later rulings of this Court, and upon a ruling of <ORG>, in which it was held that in certain other cases, not for arrears of rent, but still as to which special limitation was provided by other Acts, the plaintiff was entitled to the benefits conferred upon plaintiffs by Sections 5 to 25 of the present Limitation Act . He also relied upon a Privy Council case, Phoolbas Koonwur v. Lalla Joyeshur Sahoy L.R. 3 I.A. 7 : I.L.R. 1 Cal. 226, in regard to Section 11 of Act XIV of 1859, the former Limitation Act .

4. The last case decided by <ORG> was a suit brought by a minor to establish his right to property in respect of which his claim had been rejected under Section 246 of the old Code of Procedure, Act VIII of 1859. By that section one year's limitation was provided for the institution of a suit. This Court held, and <ORG> affirmed the decision, that the principle of Section 11 of Act XIV, which is much the same as Section 7 of the present Act, would apply. In the cases of <CITATION> . 5 Cal. 110 and <CITATION> . 5 Cal. 314, cited to us, it was held that the plaintiff's, suing under special Acts providing special periods of limitation, were nevertheless entitled to the benefit of Section 5 of the Limitation Act, which provides that if the Court is closed when the period of limitation expires, a plaintiff may file his suit upon the first day the Court re-opens. And in the case of <NAME> v. Gonesh Butt I.L.R. 7 Cal. 690, a similar doctrine was laid down. So also in the case of <NAME> v. Dinabashy Saha I.L.R. 10 Cal. 265, the late Chief Justice applied the provisions of Section 14 of the Limitation Act to a suit brought under the provisions of the Registration Act , which provide a special limitation for such suits.

5. These decisions may at first sight appear to conflict with the provisions of Section 6 of the Limitation Act, which provides: "When, by any special or local law, a period of limitation is specially prescribed for any suit, appeal or application, nothing herein contained shall affect or alter the period so prescribed." But so far as Section 5 is concerned, we think that the decisions cited do not conflict at all with Section 6 , for those decisions did not extend the period of limitation. All they did was to prevent the period of limitation from being curtailed by the closing of the <ORG>: and Mr. Justice <NAME> observes in his judgment in Khoshelal Mahton v. Gonesh Dutt I.L.R. 7 Cal. 690 that the days the <ORG> is closed must be considered as non-existent, or what are called dies non, and therefore they are not counted.

6. As regards the case of <NAME> v. Dinabashy Saha I.L.R. 10 Cal. 265, the decision of this Court is not easily to be reconciled with Section 6 , for the effect of that decision was undoubtedly to alter the period prescribed by the special Limitation Act . We do not, however, consider ourselves bound by that decision, for the present case is an entirely different one. And as regards the suit to establish the right of the unsuccessful claimant under Section 246 of the old Code of Procedure, we observe that since the decision in that case, new Limitation Act s have been passed, and also a new Code of Procedure, and now the corresponding section (280) does not prescribe a period of limitation, whereas the present Limitation Act does prescribe a period of limitation for such suits in it's third schedule. On the other hand the present Limitation Act does not prescribe a period of limitation for suits brought under the old Rent Act of 1869, under which the present suit was brought. That Act still contains a special period of limitation for suits to recover arrears of rent as well as other matters.

7. It seems to us, therefore, that upon the strict construction of Section 7 put upon it by the lower Court, as well as upon the provisions of Section 6 of the same Act, it is right to hold that the plaintiff' in this suit was not entitled to a fresh period of limitation on his attaining majority.

8. Another argument was addressed to us in favour of the plaintiff based on these facts: that a former ex parte decree was obtained when there was no bar of limitation, but which ceased to have effect, it is said, because it was found after decree that the <ORG> had no jurisdiction to pass it; and though the sale held under that decree was set aside or not confirmed, the defendant, it was argued, recovered his property saddled with a charge for the rent covered by that decree. We are unable to recognize the cogency of this argument, or the existence of any such charge, certainly not as existing after the rent had become barred by limitation.

9. We therefore think that the appellant has rightly failed to recover the rent of 1287, and must be content with the decree obtained for the rent of the subsequent years.

10. The appeal must be dismissed with costs.