AIR 1936 OUDH 280

Oudh High Court

Hon'ble Judge(s): Srivastava, Nanavutty , JJ

(A) Transfer of Property Act (4 of 1882) , S.92— Part of consideration applied to satisfy decree on prior mortgage - No agreement regarding subrogation - No intermediate encumbrance - Question of subrogation does not arise. Where part of the consideration is applied towards satisfaction of decree on prior mortgage, and the mortgage-deed does not 'contain any agreement for subrogation, on the contrary it is apparent from the terms of the deed that the money was to be applied in paying and extinguishing the prior mortgage, there being no intermediate encumbrance, the question of conventional subrogation does not arise. (B) Transfer of Property Act (4 of 1882) , S.92— In order to entitle to legal subrogation person making payment must have some interest. The principle on which the equitable doctrine of legal subrogation is founded is that the person making the payment has some interest of his own to protect and that the payment is made for the protection of such interest ; he must either occupy the position of a surety of the debt or must have made the payment under an agreement with the debtor or creditor that he should receive and hold an assignment of the debt as security, or he must stand in such a relation to the mortgaged premises that his interest cannot....