Das, J.We are concerned with certain mortgage transactions in these analogous appeals. In order to understand the position, it is necessary to state the following facts: One Gauhar Ali, who was possessed of considerable properties in Bihar, died many years ago leaving two widows, three sons and four daughters by his elder widow and five sons by his younger widow. There was considerable litigation between the two branches, and the younger widow and her sons found it necessary to borrow money from time to time from various money-lenders in Monghyr and Patna. We are not concerned in this litigation with the family quarrels, nor it is necessary for us to remember the names of the elde widow and of her children, Mokimi Begum was the younger widow and her five sons who are some of the defendants in these actions are Tabarak Ali, Lutf Ali, Dawar Ali, Yawar Ali and Amir Hussain. Mukimi Begum is now dead and her interest in the family properties has devolved on her five sons.

2. On the 22nd December 1915, Mukimi Begum and her four sons Lutf Ali, Dawar Ali, Yawar Ali and Amir Hussain borrowed Rs. 1,35,000 from Rai Bahadur Baijnath Goenka and executed a mort; gage-bond in his favour. It will he noticed that Tabarak Ali was not a party to the transaction, but as I have said, he along with his brothels has succeeded to the interest of Mukimi Begum in the mortgaged properties and as such is liable to satisfy the mortgage-debt.

On the 10th February 1916, the following transactions took place between the plaintiff Rai Bahadur Dalip Narairi Singh and four of the sons of Mukimt Begum :

(1) Amir Hussain borrowed Rs. 50,000 from the plaintiff and executed a mortgage-bond in his favour in respect of his 1-anna 11 dam share in the properties which were the subject-matter of the transaction of the 22nd December 1915, and in respect of certain other properties which were not the subject-matter of the prior mortgage. Amir Hussain conveyed his equity of redemption to Mahadeo Lal Marwari and he is the appellant in F.A No. 243 of 1922, which arises out of Suit No. 80 of 1921 which was the suit of the plaintiff to enforce the mortgage-bond of Amir Hussain dated the 10th February 1916.

(2) Lutf Ali borrowed Rs. 30,000 from the plaintiff and executed a mortgage-bond in his. favour in respect of his interest in the properties which were the subject-matter of the transaction of the 22nd December 1915. There was a suit, to enforce the mortgage-bond of the 10th February 1916, against Lutf Ali and an appeal was, brought to this Court by Lutf Ali. That appeal has been disposed of and we are not concerned with it in these proceedings.

(3) Yawar Ali borrowed Rs. 16,000 from the plaintiff and executed a mortgage-bond in his favour in respect of his interest in the properties which were the subject-matter of the transaction of the 22nd December 1925. The litigation in connexion with this mortgage-bond has also come to an end.

(4) Dawar Ali borrowed Rs. 10,000 from the plaintiff and executed a mortgage-bond in his favour in respect of his interest in the properties which were the subject-matter of the transaction of the 22nd December 1915. First Appeal No. 273 of 1922, in which Dawar Ali is the appellant, arise out of Suit No. 82 of 1921 which was the suit of the plaintiff to enforce the mortgage-bond of the 10th February 1916, executed by Dawar Ali in his favour.

3. It will be noticed that the plaintiff is a puisne mortgagee in respect of the share of each of his mortgagors. On the 10th June 1918, the plaintiff for his own protection paid off the mortgage of the 22nd December 1915, and two of the appeals before us, F.A. No. 274 of 1922 and F.A. No. 282 of 1922, arise out of the suit instituted by the plaintiff to enforce the security of the 22nd December 1915. Tabarak Ali is the appellant in F.A. No. 274 of 1922 and his brothers are the appellants in F.A. No. 282. I may mention that, although Tabarak Ali did not join in the mortgage-bond of the 22nd December 1915, he was properly made a party as one of the heirs of Mukimi Begum.

F. A. No. 274 of 1922.

I shall first deal with First Appeal No. 274 of 1922, which is the only appeal which has been strenuously pressed before us. The first question raised by Tabarak Ali is as to the due execution of the mortgage-bond of the 22nd December 1915, by Mukimi Bagum. The learned Subordinate Judge has found in favour of the plaintiff and I see no reason to differ from him. Her signature in the mortgage-bond was made by the hand of Lutf Ali. She was actually identified by Ashan one of the sons of Tabarak Ali, Tabarak Ali did not venture to call Ashan as a witness on his behalf to explain under what circumstances he came to identify Makiini Begum before the registrar who registered the mortgage-bond. A faint attempt was made by Tabarak Ali to show that Ashan was a boy of fifteen at the date o the mortgage; but the attempt failed. Tabarak Ali admits that he gave a power of attorney to Ashan only a few months after the execution of the mortgage-bond. It is quite clear that Ashan could not have been a minor at the date of the mortgage-bond.

4. There were two subsequent documents which establish beyond doubt the due execution of the mortgage-bond by Mukimi Begum. These documents are Exs. 16(b) and 16(c) Exhibit 16(b) is a mortgage-bond executed by Mukimi Begum in favour of Damodar Prashad and his brothers on the 2nd May 1916, as a security for a loan of Rs. 12,000. Exhihit 16(c) is a mortgage-bond executed by Mukimi Begum on the 2nd August 1916, in favour of Damodar Prashad and his brothers. Both these mortgage-bonds contain clear admission of the execution of the bond of the 22nd December 1915. It was contended before us that Ex. 16(b) and Ex. 16(c) have not been properly proved. The question of proof is, however a question of procedure and, if it can be shown that these documents went in without any objection on the part of Tabarak Ali, it cannot be urge in this Court that they ware not properly proved in the Court below. The documents themselves show that they went in without any objection. The list of exhibits, which is part of the record, supports this view but Mr. Sultan Ahmad refers us to Order No. 106 in the order-sheet. It appears that these documents were filed somewhat late and a petition was presented on behalf of the defendant stating "that they object to all the documents filed by the plaintiffs to be exhibited in the suit." Obviously this was an objection on the ground that they were filed late, and not an objection on the ground that they had not been properly proved. As a matter of fast these documents were not tendered in evidence till the 31st July 1922. Order No. 106 is dated the 26th July 1922; and an objection as to the mode of proof could not be taken until the documents were actually tendered in evidence.

5. In regard to the point that the documents were filed too late, it may be pointed oat that the learned Subordinate Judge had complete discretion to admit the documents although filed late. They were registered documents and no possible suspicion could attach to them. But the question remains whether any objection was taken to the mode of proof. Now on this question there can be no possible doubt that no objection was taken. The petition which was filed on the 26th July 1922, could not possibly refer to what happened in Court on the 31at July 1922, when the documents were actually tendered in evidence. They went in without any objection and I am of opinion that it cannot now be urged by Tabarak Ali that these documents were not properly proved.

But, as a matter of fact, they have been properly proved. (After examining further evidence his Lordship continued). In my opinion the plaintiff has established that there was an intelligent execution of the document by Mukimi Begum.

6. The next question is as to the passing of consideration. Now it is to be remembered that the debt to secure which the mortgage-bond was executed was a joint debt of Mukimi Begum and her four sons. If the consideration money was actually paid, it would, in my opinion, be entirely irrelevant to consider whether any portion of it reached the hand of the lady. It may be that Mukimi Begum was a surety on behalf of her sons; but the liability of |the mortgagors inter se can only be determined in a separate suit and does not properly fall to be considered in a mortgage suit of this nature. Now in the written statement Tabarak Ali did indeed set up the case that consideration did not pass in respect of the mortgage-bond. (His Lordship then discussed further evidence on the point and proceeded). I hold that the plaintiff has prove the posing of consideration in respect of the mortgage-bond of the 22nd December 1915.

7. The next question is as to the right of the plaintiff to enforce the security of the 22nd December 1915, as against the interest of Mukimi Bagum in the properties comprised in that mortgage. The position is this: On the 22nd December 1915 Mukimi Begum and her four sons executed a joint mortgage in favour of Baijnath. On the 10th February 1916, each of the four sons of Mukimi Begum executed a separate mortgage in favour of the present plaintiff in respect of the properties which were the subject-matter of the earlier mortgage. Mukimi Begum did not execute any mortgage in favour of the plaintiff. Had a suit been brought by Baijnath Goenka to enforce the security of the 22nd December 1915, the plaintiff would be a necessary party to that suit; avid he would be obliged to redeem the mortgage of the 22nd December 1915 or suffer extinction. On the 10th June 1918 the plaintiff paid off Baijnath Goenka for his own protection, and he claims the right to enforce the security of the 22nd December, 1915, not only, as against his own mortgagors but also as against Mukimi Begum.

8. Mr. Sultan Ahmad concedes that in order to protect his interest the plaintiff was obliged to pay the entire money due to Baijnath Goenka on the security of the 22nd December 1915. It is obvious that the plaintiff could not ask Baijnath Goenka to apportion the mortgage-debt and distribute it upon the several properties comprised in the security. This is not disputed by Mr. Sultan Ahmad; but he contends that, having satisfied the claim of Baijnath Goenka, the plaintiff is entitled to enforce the security of the 22nd December 1915, only as against his mortgagors, that is to say, as against Amir Hussain, Lufeif Ali, Yawar Ali, and Dawar Ali and not as against Mukimi Begum. In my opinion the argument is wholly unsubstantial. Subrogation is substitution of one creditor for another by operation of law, and it is difficult to see how the substitution could be effected unless the new creditor was put in all respects in the place of the party to whose rights he is subrogated. It is well-established that the right to a cession or assignment of the security can be claimed by at person who, though not primarily liable to discharge a debt, obliged to pay it for his own protection. In this case the plaintiff was obliged to pay the debt due to Baijnath Goenka for his own protection and.

9. I am of opinion that by operation of law there is a cession or assignment of the security held by Baijnath Goenka in his favour; but if Mr. Sultan Ahmads argument be well-founded then there is an assignment not of the entire security but so much of it as is enforceable as against the sons of Mukimi Begum. As Sir Bash Bihari Ghose has pointed out in his well known work on Mortgage:

pro tanto assignment would be au anomaly as the effect of it would be to give a distinct interest in the same debt to two or more parsons.

10. It is, however, not necessary to enter into a discussion as to whether the plaintiff is entitled to be subrogated to the position of Baijnath Goenka. Section 74 of the Transfer of Property Act, in my opinion, is clearly applicable and gives him the right to proceed as against Mukimi Begum and her sons. Section 74 provides as follows:

Any second or other subsequent mortgagee may, at any time after the amount due on the next prior mortgage has become payable, tender such amount to the next prior mortgagee and such mortgagee is bound to accept such tender and to give a receipt for such amount; and (subject to the provisions of the law for the time being in force regulating the registration of documents) the subsequent "mortgagee shall, on obtaining such receipt, acquire in respect of the property all the rights and powers of the mortgagee, as such, to when he has made such tender.

11. I have no doubt whatever that the words in respect of the property mean in respect of the property comprised in the mortgage which is paid off. In other words by paying off the earlier [mortgage, the subsequent mortgagee acquires all the rights and powers of the first mortgagee as such in respect of the property which was comprised in the earlier mortgage.

12. Mr. Sultan Ahmad contends that the right of the plaintiff cannot be higher than that of his mortgagor and that, as it is well settled that one of the mortgagors paying off the entire mortgage-debt is entitled to proceed against the co-mortgagors for the proportionate share of the debt due by each of them, so also the plaintiff ought to proceed as against each of the mortgagors for the proportionate share of the debt due by each of them. There is no substance whatever in this argument. The right of one of the mortgagors paying off the entire mortgage debt is regulated by Section 95 of the Transfer of Property Act; whereas the right of a puisne mortgagee paying off a mortgage-debt is regulated by Section 74 of the Transfer of Property Act. The distinction is based on the principle that one of the co-debtors paying off the entire debt is only entitled to contribution from the other debtors. A puisne mortgagee is not a co-debtor with the mortgagors and stands on a much higher footing.

13. It remains for me to deal with one of the cases upon which considerable stress was laid by Mr. Sultan Ahmad, the case of Chellamcherla Kalagayya alias Sundaramayya Vs. Mummareddi Yanadamma (died) and Others, . The facts were these: On the 15th August 1884, a mortgage was executed in favour of A which bound the interest of Defendant No. 6. On the 5th December 1890, a mortgage was executed in favour of the plaintiffs. Defendant No. 6 did not join in the latter mortgage although he had a share in the mortgaged properties. The result was that the mortgage of the 5th December 1890, did not bind the interest of Defendant No. 6 but the mortgage-money was applied to pay off the mortgage of the 15th August 1884. The question was whether the plaintiff had kept alive the security of the 15th August 1884, to enable him to proceed against the interest of Defendant No. 6.

14. The learned Judges deciding the case pointed out that there was no express statement of an intention to keep alive the discharged mortgage. They also pointed out that there was no intermediate in-cumbrance against which the prior mortgage might be presumed to be kept alive. On these facts, following the decision of the Privy Council in Mohesh Lal v. Mohunt Bawan Das [1893] 9 Cal. 961 they came to the conclusion that the earlier mortgage was not kept alive. In my opinion that case has nothing whatever to do with the facts of this case. This is a case of a puisne mortgagee actually discharging a prior mortgage for his own interest and he has all the rights which Section 74 of the Transfer of Property Act gives him.

First Appeal No. 274 of 1922 fails and subject to a certain variation which I propose to make in the decree, I would dismiss the appeal with costs. (His Lordship then dealt with appeals Nos. F.A. 282 of 1922 and F.A. No. 273 of 1922 and dismissed them.)

F. A. No. 243 of 1922.

15. This appeal arises out of Suit No. 80 of 1921 which was the suit of the plaintiff to enforce the mortgage-bond of the 10th February 1916, for Rs. 50,000 executed by Amir Hussain in his favour. Amir Hussain has assigned his equity of redemption to Mahadeo Lal Marwari and he is the appellant before us. It was contended before us that out of Rs. 50,000 for which the mortgage-bond was executed, Rs. 800 was not paid to Amir Hussain. Amir Hussain, however, did not come to the witness box and it is impossible to entertain the argument now. The mortgage-bond contains an admission of the receipt of the consideration money and it was for the appellant to show that the full consideration money was not received by Amir Hussain. If was then contended that the liability of the different mortgagers should be apportioned and that the debt should be distributed upon the several properties comprised in the security; but the mortgage security is entire and indivisible and unless there are exceptional circumstance the mortgagee cannot be compelled to break up the security. It is well settled that a mortgagee cannot be required to apportion his mortgage-debt among the several parts into which the property has been divided unless circumstances have happened the effect of which in fact or in law is to create a severance of the security. For instance where a mortgagee has acquired in whole or in part the share of a mortgagor in the equity of redemption, equity will compel him to apportion his mortgage-debt; but we are not pressed with those considerations in this case. It follows, therefore, that we cannot compel the plaintiff to split up his mortgage security.

16. The only other point which was argued on behalf of Mahadeo Lal Marwari by Mr. Naresh Chandra Sinha is that the learned Judge has erred in directing a sale of the properties in the subsequent mortgages subject to the mortgage of the 22nd December 1915. I think this contention is entitled to succeed. The proper, order to be passed in cases of this nature is that which was passed by the Calcutta High Court: in Nilu Roy v. Asirbad Mandal AIR 1921 Cal. 321 . It was pointed out in that case that there is nothing in the Civil P.C., or in the Transfer of Property Act to prevent the holder of two independent mortgages over the same property, who is not restrained by any covenant in either of them, from obtaining a decree for sale on each of them in a separate suit, subject, however, to the, reservation that he cannot sell the property twice over, nor sell it under the second decree subject to the first. Now the learned Subordinate Judge has directed the sale of those properties in the suits on the subsequent mortgages, but subject to the first mortgage. It was pointed out that the right course to follow in such circumstances is to direct that the property be sold free of both charges, whether in execution of the decree on the first mortgage or of the decree on the second; mortgage, and that the balance of the sale-proceeds, after payment of incidental expanses, be applied in discharge of the dues on the first mortgage and the second mortgage one after the other, the residue, if any, to stand to the credit of the holder of the equity of redemption.

17. I think, therefore, that the decrees passed by the learned Subordinate Judge should be varied. A self-contained decree should now be drawn up in this Court. The mortgagors should have six months from the day of this decree to satisfy the claim of the plaintiff. Interest at, the bond rate will run up to the date fixed for payment, and the entire sum including costs will carry interest at the rate of 6 per cent, per annum until realization. In default of payment with the time allowed, the properties, or a sufficient portion thereof, which are the subject-matter of the mortgages should be sold free from all the mortgages which are the subject-matter of these appeals. The balance of the, sale-proceeds of the properties comprised in the mortgage of the 22nd December 1915, after payment of incidental expenses should be applied in discharge of the dues on the mortgage of the 22nd December 1915. The balance after such satisfaction will be placed to the separate credit of each of the mortgagors according to their share in the mortgaged properties.

18. The sale proceeds of properties other than those which were the subject-matter, of the mortgage of the 22nd December 1915, will also be placed to the credit of the different mortgagors according to their interest in these properties. The different sums standing to the credit of the different mortgagors will then be applied in discharge of the duos on the mortgages of the 10th February 1916. For instance the sum standing to the credit of Mahadeo Lal Marwari will be applied in discharge of the mortgage-bond of the 10th February 1916, executed by Amir Hussain in favour of the plaintiff and the sum standing to the credit of Dawar Ali will be applied in discharge of the mortgage-bond of the 10th February 1916, executed by him in favour of the plaintiff. If there should be a residue it will stand to the credit of the holders of the equity of redemption.

19. Subject to this variation all the appeals are dismissed with costs.

Adami, J.

I agree.