Judgement Appeal from a decree of the High Court (March 3, 1905) varying a decree of the District Judge of Karnal (November 30, 1904). The suit was brought by the appellants on September 22, 1900, to recover the amount due in respect of a simple mortgage dated February 17, 1888, of which they were the assignees by sale of all the properties comprised therein. It involved mortgage transactions prior thereto. Those transactions are sufficiently detailed in the judgment of their Lordships. They were five in number. The first, dated November 20, 1874, was effected by a zarpeshgi pottah from Girwar Singh to secure repayment of Rs. 12,000 in twelve years, and related to eight items of property, five of which were finally disposed of by the decrees below, the remaining three being the subject of this appeal. The second, dated December 15, 1879, was effected by a simple mortgage to Jagattarini by the same mortgagors to secure repayment of Rs. 700 with interest and related to the first of the said three properties. The third, dated December 31, 1880, mortgaged the first and second of the said properties to Raghunath Singh and Ganpat Singh to secure Rs. 3200 and interest; which said properties were further charged on December 20, 1883, in favour of Raghunath Singh Jagarnath Singh with repayment of Rs. 2000 and interest. The fifth, dated January 7, 1888, was in favour of Gajadhur Mahto to secure Rs. 2500 and interest and related to the third of the said three properties. The mortgage sought to be enforced in this suit comprised the eight properties to which the said zarpeshgi pottah related. It was executed to Mussammat Alfan to secure the payment in two years of the same amount of Rs. 12,000 which by agreement with her was applied to paying off the amount due to the zarpeshgidar. The zarpeshgi deed was made over to her and was by her representatives delivered to the appellants upon the assignment of the said mortgage of February 17, 1888, to them. The defendants to the suit thereon were (1.) the representatives of the mortgagors; (2.) the representatives of Alfan, the mortgagee ; (3.) the decree-holders and purchasers of the said three properties under decrees for sale obtained to enforce the mortgages of January 7, 1888, December 17, 1879, December 31, 1880, and December 20, 1883. The defendants to the suit thereon were (1.) the representatives of the mortgagors; (2.) the representatives of Alfan, the mortgagee ; (3.) the decree-holders and purchasers of the said three properties under decrees for sale obtained to enforce the mortgages of January 7, 1888, December 17, 1879, December 31, 1880, and December 20, 1883. The plaintiffs claimed that under the circumstances they were entitled to priority. That priority depended first upon the effect of their assignor having paid off the zarpeshgidar without obtaining an assignment of his mortgage ; second, upon the effect of the decrees for sale obtained by the puisne mortgagees in respect of the three properties under appeal. With regard to the payment of the zarpeshgi mortgage the first Court held that it was the clear intention of the parties that the incumbrance created thereby would subsist in favour of Alfan, who paid it off, and that it would be kept alive for her benefit to protect her from intermediate incumbrances. The High Court held that there was a presumption to that effect, but that the 4 Law. Rep. 39 Ind. App. 68 ( 1911- 1912) Syed Mahomed Ibrahim Hossein Khan V. Ambika Persad Singh 16 presumption had been rebutted. The omission next hereinafter mentioned to put it forward in the suits by the intermediate mortgagees to which she or her representatives were parties and other circumstances shewed that there had been no intention to obtain priority in that way, and no claim to enforce it. With regard to the effect of decrees for sale under the intermediate mortgages and the rights of the purchasers at those sales the Subordinate Judge found that the representatives of Alfan, that is, the assignors to the appellants, were parties to all of them except the decree under the mortgage of January 7, 1888. But he was not satisfied that in the suits to which they were parties they bad been properly served with summonses and held that they were not bound by any of the decrees. Accordingly the purchasers under all the decrees were entitled to redeem the appellants mortgage so far as it affected the properties in their hands. But he was not satisfied that in the suits to which they were parties they bad been properly served with summonses and held that they were not bound by any of the decrees. Accordingly the purchasers under all the decrees were entitled to redeem the appellants mortgage so far as it affected the properties in their hands. The High Court reversed the finding of the Subordinate Judge that the summonses and notices had been served, and held that, Alfans representatives having been made parties as puisne mortgagees with a right to redeem, their omission to raise an issue in those suits and to claim the priority as now alleged on the basis of the zarpeshgi deed operated as a bar against them and consequently as against the appellants their assignees under a. 13, C. C. P. It also held that any claim under the zarpeshgi of 1874 .was barred, for its term expired in May or June, 1887, and possession was given up in July, 1888, the debt having been satisfied. " The present suit was commenced on September 22, 1900, more than twelve years after the mortgagees ceased to enjoy the usufruct of the hypothecated properties." It varied the order of the lower Court by omitting the whole of its direction relating to the puisne mortgages and the purchasers under the sales decreed in respect of them. Sir Erle Richards, K.C., and Dunne, for the appellants, con-tended that they were entitled to the benefit of the charge under the zarpeshgi pottah, which had priority over the three sets of respondents who derived title under the mortgages which were intermediate between the zarpeshgi of November, 1874, and Alfans mortgage of February, 1888. The High Court rightly held that there was a presumption in favour of Alfans inten tion to retain the benefit of the zarpeshgi mortgage and to keep it alive in her own interest. The evidence was wholly insufficient to rebut that presumption; on the contrary it supported that presumption. There was the evidence of applying the money advanced to the payment of the earlier mortgage debt, the transfer to her of the deeds relating thereto, and by her to her assignees. That application of the mortgage money was the result of an agreement and of a joint petition to the Court to carry it into effect. There was the evidence of applying the money advanced to the payment of the earlier mortgage debt, the transfer to her of the deeds relating thereto, and by her to her assignees. That application of the mortgage money was the result of an agreement and of a joint petition to the Court to carry it into effect. It was shewn that she knew of the intermediate mortgages and that it was to her interest that the earlier mortgage should be kept alive. Reference was made to Act IV. of 1882, s. 83 ;. Mohesh Lal v. Bawan Das (( 1883) L. R. 10 Ind. Ap. 62.) ; Gokuldoss Gopaldoss v. Rambux Seochand. (( 1884) L. R. 11 Ind. Ap. 126.) It was held that the principle of the English cases as laid down in Thorne v. Cann ([ 1895] A. C. 11, 15.), citing Adams v. Angell (( 1877) 5 Ch. D. 634.) and Toulmin v. Steere ((1817) 3 Mer. 210.), was not applicable in India. See also Chetwynd v. Allen ([ 1899] 1 Ch. 352.); Dinobundhu-Shaw Chowdhry v. Jogmaya Dasi (L. R. 29 Ind. Ap. 9.) With regard to the sales in execution of the decrees on the intermediate mortgages it was contended that the evidence proved that in the suits to which the representatives of Alfan were made parties they had not been duly served. But even if they were effective parties no issue was raised n those suits which made it incumbent on them to plead their priority as a ground of defence, and an omission to do so would not bar their claim in the present suit, or the claim of their assignees. C. C. P., s. 13, on its true construction did not bar them. At the date when they were made parties they had already assigned to the appellants and had no interest in the right to redeem and no right or obligation to assert it. As respects the proceedings on the latest mortgage, i.e., of January 7, 1888, to which they were not 4 Law. Rep. 39 Ind. App. 68 ( 1911- 1912) Syed Mahomed Ibrahim Hossein Khan V. Ambika Persad Singh 17 made parties, there could, it was submitted, be no reason for holding that the purchaser under the decree obtained any priority over the appellants, or that the appellants were barred from enforcing their own priority. Rep. 39 Ind. App. 68 ( 1911- 1912) Syed Mahomed Ibrahim Hossein Khan V. Ambika Persad Singh 17 made parties, there could, it was submitted, be no reason for holding that the purchaser under the decree obtained any priority over the appellants, or that the appellants were barred from enforcing their own priority. The High Court drew no distinction between the cases where the appellants predecessors had been made parties and the summonses found to have been duly served and the case where they were not even made parties. As to the necessary parties to a suit by a puisne mortgagee for foreclosure or sale, under s. 85 of Act IV. of 1882 only subsequent mortgagees are necessary parties, i.e., as having a right to redeem. Sect. 58 (b) defines a simple mortgage. Sect. 58, sub-s. (d), defines a usufructuary mortgage and s. 98 contemplates a combination of both. If Alfan was a prior mortgagee she was not a necessary party not having a right to redeem, and was not bound by the result by reason of having been unnecessarily made a party. She was made a party only because she had a right to redeem, and her present claim to priority was not then in issue and could not have been made a ground of defence. The sale decreed was subject to her mortgage if a prior one. Reference was made to Musaheb Zaman Khan v. Inayatullah(( 1892) I. L. R. 14 Allah. 513, 519.); Jafar Husen v. Ranjit Singh (( 1898) I. L. R. 21 Allah. 4.); Kashi Ram v. Sardar Singh (( 1905) I. L. R. 28 Allah. 157, 160); Parbati Charan Roy v. Gobinda Chandra Kunder. (( 1906) 4 Calc. L. J. 246, 249.) As to limitation it was contended that the suit was not barred, for under art. 147 of the Limitation Act the statutory period was sixty years. [De Gruyther referred to Vasudeva Mudaliar v. Srinivasa pillai. (( 1907) L. R. 34 Ind. Ap. 186.)] The money was not due and the cause of action not complete till 1890, and this suit was instituted in 1900 and was not barred if art. 132 or art. 134 applied. Reference was made to Miller v. Dell. [De Gruyther referred to Vasudeva Mudaliar v. Srinivasa pillai. (( 1907) L. R. 34 Ind. Ap. 186.)] The money was not due and the cause of action not complete till 1890, and this suit was instituted in 1900 and was not barred if art. 132 or art. 134 applied. Reference was made to Miller v. Dell. ([ 1891] 1 Q. B. 217.) De Gruyther, K.C., and Kenworthy Brown, for the respondents other than the pro forma defendants, contended that the appellants were not entitled to any rights as mortgagees or charge-holders on the footing of the deed of 1874. No rights under that deed were kept alive by Alfan or for her benefit, when the zarpeshgi money was paid. Any rights which still subsisted thereunder have been lost by lapse of time. The mortgage was a usufructuary one, and a distinction is made between usufructuary and simple mortgages by the Transfer of Property Act. The appellants took their assignment pendente lite, that is pending the decision of suits brought upon mortgages of properties included in that assignment, and the decision of that litigation was res judicata against them. As regards the mortgage of February 17, 1888, no transaction in that year could affect rights which the mortgagors had already created. Reference was made to Transfer of Property Act, s. 58 (b), s. 62(a), ss. 67,68, and 99; to Thorne v. Cann ([ 1895] A. C. 11, 19.) ; Mohesh Lal v. Bawan Das (L. R. 10 Ind. Ap. 62, 71.) ; Gokuldoss Gopaldoss v. Rambux Seochand. (L. R. 11 Ind. Ap. 126, 133.) It was rightly found on the evidence in this case by the High Court that there was no proof of any intention to keep the charge under the zarpeshgi alive for the benefit of the mortgagees of February 17, 1888, and any presumption to that effect must be held to have been rebutted. Then in the suits which the appellants now contend were brought on mortgages which in effect were subsequent to those on which they sue their assignors or other predecessor in title were made parties, and the High Court has rightly found that they were duly served with summonses. They omitted to set up their priority or even their mortgage title therein, and so far as the two properties comprised in those suits are concerned they are barred from doing so in this. They omitted to set up their priority or even their mortgage title therein, and so far as the two properties comprised in those suits are concerned they are barred from doing so in this. Reference was made to Sri Gopal v. Pirthi Singh (( 1902) L. R. 29 Ind. Ap. 118.); C.C.P., s. 13,expl. 2; Gopal Lal v. Benarasi Pershad Chowdhry. (( 1904) I. L. R. 31 Calc. 428.) The appellants, therefore, could not bring those properties to sale as if their mortgagees were entitled to redeem and had defaulted. They must be regarded as released from the appellants charge on the ground of res judicata, and the appellants must submit to a proportional reduction of their claim in respect of those two items and in any view in respect of the third item on which a decree was obtained to which they were not parties. In regard to the ex parte decrees made upon them in respect of the two first items of property they never sought to set them aside under s. 108, C. C. P., or otherwise. Nor did they seek to set aside the sales made under the decrees within a year see Act. XV. of 1877, art. 12. See Malkarjun v. Narhari. (( 1900) L. R. 27 Ind. Ap. 216, 224.) 4 Law. Rep. 39 Ind. App. 68 ( 1911- 1912) Syed Mahomed Ibrahim Hossein Khan V. Ambika Persad Singh 18 The appellants, moreover, were barred as having brought their suit more than twelve years after they or their predecessors were out of possession under the zarpeshgi lease. Reference was made to Ponnusami Mudaliar v. Srinivasa Naickan (( 1908) I. L. R. 31 Madr. 333.) and Imam All v. Baijnath Ram Sahu (( 1906) I. L. R. 33 Calc. 613, 621.) as shewing that not more than a rateable part of the mortgage debt could be thrown on the three properties respectively the subject of this appeal. Sir Erle Richards, K.C., in reply, distinguished the cases in 31 Calc. 428 and 29 Ind. Ap. 118. In each of these the plaintiff in the earlier litigation had raised an issue as to the prior incumbrance. The judgment of their Lordships was delivered by SIR JOHN EDGE. Sir Erle Richards, K.C., in reply, distinguished the cases in 31 Calc. 428 and 29 Ind. Ap. 118. In each of these the plaintiff in the earlier litigation had raised an issue as to the prior incumbrance. The judgment of their Lordships was delivered by SIR JOHN EDGE. This is an appeal by the plaintiffs against the decree of the High Court of Judicature at Fort William in Bengal, dated March 3, 1905, which varied the decree of the Subordinate Judge of Patna of July 9, 1902. The suit was brought on September 22, 1900, in the Court of the Subordinate Judge on a simple mortgage of February 17, 1888, to recover Rs.12,000 as principal, Rs.23,150 as interest to the date of suit, and future interest until realization. That mortgage as will later a|3pear, was executed in favour of Mussammat Alfan, whose heirs assigned it to the plaintiffs on June 16, 1891. The plaintiffs also claimed to have it declared that the properties covered by the mortgage of February 17, 1888, and by a zarpeshgi deed of November 20, 1874, were liable for the entire decretal amount; that certain of the defendants should be directed to pay the decretal amount to the plaintiffs within a time to be fixed by the Court, and that in default of payment the decretal amount should be realized by the sale by auction of the mortgaged properties included in the mortgage of February 17, 1888, and the zarpeshgi deed of November 20, 1874. Various issues were raised by the defendants, and much more or less conflicting evidence was recorded, but the facts so far as they are material in the view taken by their Lordships may be briefly stated. On November 20, 1874, Kanda Kumar Singh on his own behalf, and as the husband and agent of his wife, Mussammat Lalpeari Dasi, executed a zarpeshgi deed in favour of Girwar Singh for the sum of Rs.12,000, which was acknowledged to have been received from Girwar Singh, and by that deed mortgaged and hypothecated as security for the zarpeshgi Rs.12,000 certain properties which included the entire 16 annas of the milkiat and the malguzari right of mouzah Ghowspur-Dopahra, No. 364, 2 annas out of 16 annas of mouzah Ghowspur-Dopahra, No. 362, and 5 annas 4 pies out of 16 annas of mouzah Fatehpur-Lawaech. With the properties which are named above this appeal is alone concerned. With the properties which are named above this appeal is alone concerned. By that deed Girwar Singh was entitled to hold possession of the properties hypothecated until the amount of the zarpeshgi Rs.12,000 was repaid to him, and it was by the deed amongst other things agreed that Girwar Singh should pay certain expenses and the Government revenue, should keep out of the usufruct Rs.900 every year as interest on the zarpeshgi Rs.12,000,. and should pay Rs.501 13 annas 6 pies on account of the rent every year by regular instalments to Nanda Kumar Singh and Lalpeari Dasi, and that all the increase in the produce in consequence of proper cultivation should be enjoyed and appro priated by Girwar Singh. It was also by the deed agreed that when Nanda Kumar Singh and Lalpeari Dasi should repay to the ticcadar, Girwar Singh, the zarpeshgi Rs. 12,000 in one lump sum at the end of Jeth 1294 Fasli (September, 1887) the ticca transaction should be cancelled and Nanda Kumar Singh and Lalpeari Dasi should bring the leased properties into their direct possession, but in the case of the nonpayment of the zarpeshgi Rs.12,000 at the end of Jeth 1294 Fasli, the ticca transaction should stand good with all its conditions until the payment of the zarpeshgi. Girwar Singh was put in possession under the deed. 4 Law. Rep. 39 Ind. App. 68 ( 1911- 1912) Syed Mahomed Ibrahim Hossein Khan V. Ambika Persad Singh 19 On December 15, 1879, Nanda Kumar Singh being then dead, his son and heir Kishan Kumar Singh executed in favour of Mussammat Jagattarini Debi a simple mortgage of the 2 annas share in No. 362 Ghowspur-Dopahra. On May 3, 1890, Dwarkanath Roy, who was the son and heir of Mussammat Jagattarini, then dead, brought a suit for sale on the mortgage of December 15, 1879, and made the mortgagor and the puisne mortgagees, including the heirs of Mussammat Alfan, who was then dead, defendants to his suit. Their Lord-ships, concurring with the High Court, find as a fact that the summonses and notices in that suit were duly served upon the heirs of Mussammat Alfan. The heirs of Mussammat Alfan did not appear, and did not defend that suit. Their Lord-ships, concurring with the High Court, find as a fact that the summonses and notices in that suit were duly served upon the heirs of Mussammat Alfan. The heirs of Mussammat Alfan did not appear, and did not defend that suit. On November 20, 1890, Dwarkanath Roy obtained in his suit a decree for sale, and under that decree the 2 annas share in No. 362 Ghowspur-Dopahra was sold. On December 31, 1880, Kishan Kumar Singh and his mother Lalpeari Dasi executed a simple mortgage in favour of Raghunath Singh and Ganpat Singh of, amongst other properties, the 2 annas share in No. 362 Ghowspur-Dopahra and the 16 annas share in No. 364 Ghowspur-Dopahra. On December 20, 1883, Kishan Kumar Singh and Lalpeari Dasi executed in favour of Raghunath Singh and Jagarnath Singh a simple mortgage of, amongst other properties, the 2 annas share in No. 362 Ghowspur-Dopahra and the 16 annas share in No. 364 Ghowspur-Dopahra. On July 15, 1890, two suits for sales were brought, one on the mortgage of December 31, 1880, and the other on the mortgage of December 20, 1883. Their Lordships, concurring with the High Court, find as a fact that the heirs of Mussammat Alfan were duly made defendants to these suits. The heirs of Mussammat Alfan did not defend either of these suits. Decrees for sale were made in these suits. On January 7, 1888, Kishan Kumar Singh executed in favour of Gajadhu Mahto a simple mortgage of the 5 annas 4 pies share in Fatehpur-Lawaech. On September 6, 1888, Gajadhur Mahto brought a suit for sale on his mortgage of January 7, 1888, against Kishan Kumar Singh, but did not make Mussammat Alfan a defendant. Gajadhur Mahto obtained a decree for sale ; under that decree the 5 annas 4 pies share in Fatehpur-Lawaech was sold on December 16, 1889, to Lalji Mahto. The sale was confirmed on March 22, 1890, and shortly afterwards Lalji Mahto was put in possession. Lalji Mahto died since this suit was brought. In February, 1888, Kishan Kumar Singh borrowed Rs. 12,000 at interest of R.1 and 4 annas per mensem from Mussammat Alfan. Their Lordships find as a fact that the Rs. 12,000 was borrowed by Kishan Kumar Singh and was lent by Mussammat Alfan for the express purpose of paying off the zarpeshgi debt of Rs. In February, 1888, Kishan Kumar Singh borrowed Rs. 12,000 at interest of R.1 and 4 annas per mensem from Mussammat Alfan. Their Lordships find as a fact that the Rs. 12,000 was borrowed by Kishan Kumar Singh and was lent by Mussammat Alfan for the express purpose of paying off the zarpeshgi debt of Rs. 12,000 as security for which the property mentioned in the zarpeshgi deed of November 20, 1874, was mortgaged and hypothecated by that deed. In consideration of that loan of Rs. 12,000 Kishan Kumar Singh executed on February 17, 1888, in favour of Mussammat Alfan a simple mortgage of the properties included in the zarpeshgi deed of November 20, 1874. The principal sum of Rs. 12,000 was under that mortgage repayable in two years. The money lent by Mussammat Alfan was in accordance with the agreement between her and Kishan Kumar Singh applied in discharging the zarpeshgi debt of Rs. 12,000, and on July 15, 1888, the then holders of the zarpeshgi deed of November 20, 1874, quitted possession and gave up the zarpeshgi deed, which was delivered to Mussammat Alfan. Mussammat Alfan died on December 10, 1889, and on June 16, 1891, her heirs assigned the mortgage of February 17, 1888, to the plaintiffs, who are the appellants here. On that assignment such rights as Mussammat Alfan had acquired and were then existing passed to the plaintiffs. On September 22, 1900, the plaintiffs in whom was then vested Mussammat Alfans right as mortgagee under the mortgage of February 17, 1888, filed their plaint in this suit, making then, or by subsequent amendment of their plaint, the repre sentatives of Kishan Kumar Singh, who was then dead, and others who were interested in the mortgage properties, or in some of them, defendants. The 4 Law. Rep. 39 Ind. App. 68 ( 1911- 1912) Syed Mahomed Ibrahim Hossein Khan V. Ambika Persad Singh titles of the defendants, other than the representatives of Kishan Kumar Singh, arose under the mortgages which were made subsequently to November 20, 1874, and prior to February 17, 1888. The Subordinate Judge decreed the suit for sale with costs, giving the defendant No. 1 a right to redeem the mortgage so far as it affected the properties other than No. 362 Ghowspur-Dopahra, No. 364 Ghowspur-Dopahra, and Fatehpur-Lawaech by payment within ninety days of the decretal amount with costs. The defendants Nos. The Subordinate Judge decreed the suit for sale with costs, giving the defendant No. 1 a right to redeem the mortgage so far as it affected the properties other than No. 362 Ghowspur-Dopahra, No. 364 Ghowspur-Dopahra, and Fatehpur-Lawaech by payment within ninety days of the decretal amount with costs. The defendants Nos. 8 to 13 were given a right to redeem the mortgage, so far as it affected No. 364 Ghowspur-Dopahra, by payment within ninety days of Rs. 4000 with proportionate costs; the defendant No. 15 was given a right to redeem the mortgage, so far as it affected No. 362 Ghowspur-Dopahra, on payment of Rs. 4000 with proportionate costs ; and any of the defendants Nos. 5, 6, and 14 were given a right to redeem the mortgage, so far as it affected Fatehpur-Lawaech, on payment within ninety days of Rs. 4000 with proportionate costs. The High Court on appeal dismissed the suit with costs so far as it applied to Nos. 364 and 362 Ghowspur-Dopahra and Fatehpur-Lawaech. The High Court held that the plaintiffs suit, so far as it applied to No. 364 Ghowspur-Dopahra and No. 362 Ghowspur-Dopahra, was barred by s. 13, explanation II., of the Code of Civil Procedure by reason of the heirs of Mussammat Alfan not having set up in the suits of May 3, 1890, and July 15, 1890, " their title as prior mortgagees on the basis of the zarpeshgi 1874, the ground of relief in the present action." Mussammat Alfans mortgage of February 17, 1888, was not prior to the mortgages of December 15, 1879, December 30, 1880, and December 20, 1883, but the plaintiffs, appellants here, claimed priority as the Rs. 12,000 which Mussammat Alfan had lent in 1888 were applied to discharge the debt secured by the zarpeshgi deed of 1874. 12,000 which Mussammat Alfan had lent in 1888 were applied to discharge the debt secured by the zarpeshgi deed of 1874. The heirs of Mussammat Alfan were persons having an interest in the properties comprised in the mortgages of December 15, 1879, December 31, 1880, and December 20, 1883, and consequently were under s. 85 of the Transfer of Property Act, 1882, necessary parties to the suits for sale on those mortgages and were made defendants to those suits, and not having set up in those suits such rights as they had under the mortgage of February 17, 1888, and the zarpeshgi deed of 1874, s. 13, explanation II., of the Code of the Civil Procedure applied, and the claims of the plaintiffs appellants as against No. 354 Ghowspur-Dopahra and No. 362 Ghowspur-Dopahra and those of the defendants who are alone concerned with those mouzahs are barred. The High Court rightly dismissed the suit with costs so far as it related to No. 364 Ghowspur-Dopahra and No. 362 Ghowspur-Dopahra. It remains to be considered whether the plaintiffs had, and could have enforced in this suit, any and what rights against the 5 annas 4 pies share in Fatehpur-Lawaech, and against Gajadhur Mahto and Lalji Mahto, defendants 5 and 6, or either of them. It is not quite obvious on what grounds the High Court dismissed the suit so far as it related to the 5 annas 4 pies share in Fatehpur-Lawaech, and to the defendants Gajadhur Mahto and Lalji Mahto. Gadjadhur Mahto did not make Mussammat Alfan a defendant to the suit for sale which he brought on September 6, 1888, on his mortgage of January 7, 1888. That suit was brought to obtain a decree for sale of the 5 annas 4 pies share in Fatehpur-Lawaech which had been mortgaged on January 7, 1888, to Gajadhur Mahto, and subsequently on February 17, 1888, to Mussammat Alfan, and had been mortgaged and hypothecated to Girwar Singh by the deed of November 20, 1874, as security for the zarpeshgi debt of Rs. 12,000. Under the deed of November 20, 1874, the Rs. 12,000 was not repayable to Girwar Singh until Jeth 1294 Fasli (September, 1887), and consequently the twelve years allowed by art. 12,000. Under the deed of November 20, 1874, the Rs. 12,000 was not repayable to Girwar Singh until Jeth 1294 Fasli (September, 1887), and consequently the twelve years allowed by art. 182 of the Second Schedule of the Indian Limitation Act, 1877, within which a suit to enforce payment of that debt was allowed, had not expired when Gajadhur Mahto brought his suit. It has been contended that as Mussammat Alfan when she lent her Rs. 12,000 to Kishan Kumar Singh in February, 1888, to pay off the zarpeshgi debt of Rs. 12,000 did 4 Law. Rep. 39 Ind. App. 68 ( 1911- 1912) Syed Mahomed Ibrahim Hossein Khan V. Ambika Persad Singh 21 not obtain a formal assignment in writing of the zarpeshgi deed of November 20, 1874, and as the zarpeshgi debt of Rs. 12,000 was discharged by payment to the representatives of Girwar Singh on July 15, 1888, and they quitted possession, Mussammat Alfan did not in equity obtain the benefit of the charge which Girwar Singh had under the zarpeshgi deed of November 20, 1874. It is true that so far as the zarpeshgi deed of November 20, 1874, operated as a lease of the mortgaged properties it came to an end on the payment of the zarpeshgi debt of Rs. 1,2000, to the representatives of Girwar Singh on July 15, 1888, but their Lordships have found as a fact that the Rs. 12,000 were lent by Mussammat Alfan and were borrowed by Kishan Kumar Singh for the express purpose of paying off the zarpeshgi debt of Rs. 12,000 which was secured by the deed of November 20, 1874 ; that the Rs. 12,000 lent by Mussammat Alfan were in accordance with the agreement between Mussammat Alfan and Kishan Kumar Singh applied in paying off the zarpeshgi debt; that on payment of that debt the zarpeshgi deed of November 20, 1874, was handed over to Mussammat Alfan and that Mussammat Alfan when she lent her Rs. 12,000 intended to keep alive for her benefit and protection the charge which had been created by the zarpeshgi deed of November 20, 1874. It has been held by this Board, in Mohesh Lal v. Bawan Das (1), that whether a mortgage paid off is extinguished or kept alive depends upon the intention of the parties. 12,000 intended to keep alive for her benefit and protection the charge which had been created by the zarpeshgi deed of November 20, 1874. It has been held by this Board, in Mohesh Lal v. Bawan Das (1), that whether a mortgage paid off is extinguished or kept alive depends upon the intention of the parties. It has also been held by this Board, in Gokuldoss v. Rambux Seochand (2), that the ordinary rule is that a man having a right to act in either of two ways shall be assumed to have acted according to his interests. In the last-mentioned case it was held by this Board that the purchaser of an equity of redemption in immovable property situated in India, who, having notice of a second mortgage, paid off a first mortgage upon the property without an assignment of the first mortgage to him, must be assumed, according to the rule of justice, equity, and good conscience, to have intended to keep the first mortgage alive, and consequently was entitled to stand in the place of the first mortgagee and to retain possession against the second mortgagee until repayment. In that case this Board was pressed to apply the doctrine of Toulmin v. Steere (3 Mer. 210.), but this Board observed that "In India the art of conveyancing has been and is of a very simple character. Their Lordships cannot find that a formal transfer of a mortgage is ever made, or an intention to keep it alive ever formally expressed. To apply to such a practice the doctrine of Toulmin v. Steere (3 Mer. 210.) seems to them likely, not to promote justice and equity, but to lead to confusion, to multiplication of documents, to useless technicalities, to expense and to litigation." And their Lordships in that case held that 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 ? What this Board said in 1884 as to the art of conveyancing in India, and the practice in such cases, is true as to the art of conveyancing and the practice in such cases at the present day. The law on these points applied in the judgments of this Board in Mohesh Lal v. Bawan Das (L. R. 10 Ind. Ap. The law on these points applied in the judgments of this Board in Mohesh Lal v. Bawan Das (L. R. 10 Ind. Ap. 62.) and Gokuldoss v. Rambux Seochand (L. R. 11 Ind. Ap. 126.) was subsequently applied by this Board in Dinobundhu Shaw Chowdhry v. Jogmaya Dasi. (L. R. 29 Ind. Ap. 9.) Applying the rule of justice, equity, and good conscience their Lordships in this appeal hold that the charge created by the zarpeshgi deed of November 20, 1874, was kept alive for the benefit of Mussammat Alfan. Nothing to bar a claim in respect of that charge, so far as the 5 annas 4 pies share in Fatehpur-Lawaech was concerned, had occurred when Gajadhur Mali to brought his suit on September 6, 1888. As their Lordships have said, Gajadhur Mahto did not make Mussammat Alfan a defendant to his suit of September 6, 1888. Under s. 85 of the Transfer of Property Act, 1882, Mussammat Alfan was a necessary party to that suit. It is not alleged that Gajadhur Mahto when he brought his suit had not notice that Mussammat Alfan was a person having an interest in the property comprised in the mortgage upon which he was suing. If Gajadhur Mahto had taken the ordinary precaution of inspecting the register of the district in which Fatehpur-Lawaech is situate, before he took his mortgage of January 7, 1888, he would have found that the 5 annas 4 pies share in Fatehpur-Lawaech had been charged by the zarpeshgi deed of November 20, 1874. It is to be presumed that Gajadhur Mahto took the ordinary precautions before parting with his money which a prudent intending mortgagee would 4 Law. Rep. 39 Ind. App. 68 ( 1911- 1912) Syed Mahomed Ibrahim Hossein Khan V. Ambika Persad Singh 22 take. If Gajadhur Mahto had before bringing his suit of September 16, 1888, and in order to ascertain who would be under s. 85 of the Transfer of Property Act, 188?, the necessary parties to his suit, taken the ordinary precaution of searching that register, he would also have found that the 5 annas 4 pies share in Fatehpur-Lawaech was included in Mussammat Alfans mortgage of February 17, 1888. It has been contended that s. 85 of the Transfer of Property Act, 1882, did not apply to the suit which Gajadhur Mahto brought, the contention being that that section does not apply to a suit for sale of an equity of redemption and that a puisne mortgagee is not a person " having an interest in the property comprised in a mortgage "of a first or any prior mortgagee who brings a suit for sale on his prior mortgage. That contention, if correct, would, as it appears to their Lordships, lead to the conclusion that neither a prior nor a subsequent mortgagee need be made a defendant to a suit for sale by a mortgagee of the specific lands included in his mortgage. The fact is that in suits for sale in India to which other mortgagees are not made parties, what a puisne mortgagee seeks to sell by means of a decree for sale is not the equity of redemption so described, but the actual property, lands or houses, mortgaged. It is not obvious why a puisne mortgagee who desires to sell a mere equity of redemption, and not the actual property, lands or houses, described in his mortgage as the property mortgaged to him, should not dispose of his interests by private contract by an assignment of his mortgage to a purchaser, instead of by bringing a suit for sale of the property, land or houses, mortgaged, unless he hopes by concealing what his real interests are to obtain a larger price from an unwary purchaser at an auction sale under a decree for sale than he could otherwise expect to obtain. Gajadhur Mahto, in his suit for sale, sought for and obtained a decree for sale of the specific 5 annas 4 pies share in mouzah Fatehpur-Lawaech which had been mortgaged by the zarpeshgi deed of November 20, 1874, and Mussammat Alfans mortgage of February 17, 1888, and under his decree for sale that 5 annas 4 pies share was sold, and it was sold free of all charges and incumbrances so far as the decree or any documents relating to the decree would shew. Had s. 85 of the Transfer of Property Act, 1882, been complied with by making Mussammat Alfan a party to the suit, the decree for sale in Gajadhur Mahtos suit would have dealt with the rights and claims of Mussammat Alfan in relation to the charge under the zarpeshgi deed of November 20, 1874, and her mortgage of February 17, 1888, if put forward by her in the suit, and Gajadhur Mahto would have been allowed to redeem the charge of 1874 by payment of Rs. 12,000, and Mussammat Alfan would in her turn have been allowed to redeem Gajadhur Mahtos mortgage. If Mussammat Alfan had been made a defendant to Gajadhur Mahtos suit and had neglected to put forward her claims, those claims would have been barred under s. 13 of the Code of Civil Procedure. In either event all intending purchasers at a sale under the decree would have known what rights were to have been sold, and in either event the necessity for the bringing this present suit, so far as the 5 annas 4 pies share in Fatehpur-Lawaech is concerned, would not have arisen. As Mussammat Alfan was not made a defendant to Gajadhur Mahtos suit, her rights were not affected by the decree in that suit, and s. 13 of the Code of Civil Procedure did not bar this suit of the plaintiff so far as the 5 annas 4 pies share in Fatehpur-Lawaech and the defendants Gajadhur Mahto and Lalji Mahto were concerned. But as the Rs. 12,000 were under the zarpeshgi deed of November 20, 1874, repayable in Jeth 1294 Fasli (September, 1887) and this suit was not brought until September 22, 1900, the claim of the plaintiffs to priority is barred by art. 132 of the Second Schedule of the Indian Limitation Act, 1877, and all that they are entitled to so far as the 5 annas 4 pies share in Fatehpur-Lawaech is concerned is a decree entitling them to redeem the mortgage of January 7, 1888, on payment to the legal representatives of Lalji Mahto of the amount of the principal and interest in respect of which the 5 annas 4 pies share in Fatehpur-Lawaech was sold to him under the decree for sale in Gajadhur Mahtos suit of September 6, 1888. Their Lordships will humbly advise His Majesty that the decree of the High Court so far as it operated 4 Law. Rep. 39 Ind. App. 68 ( 1911- 1912) Syed Mahomed Ibrahim Hossein Khan V. Ambika Persad Singh 23 as a dismissal of the plaintiffs suit for sale of the 5 annas and 4 pies share in Fatehpur-Lawaech, and dismissed with costs in the High Court and in the Court of the Subordinate Judge the plaintiffs suit as against Gajadhur Mahto and Lalji Mahto, should be varied by decreeing that the plaintiffs, appellants here, by payment to the legal representatives of Lalji Mahto, or into the High Court to their credit, within ninety days from the filing of His Majestys order in the High Court, of the amount of principal and interest in respect of which the 5 annas 4 pies share in Fatehpur-Lawaech was sold to Lalji Mahto under the decree of Gajadhur Mahto in the suit of September 6, 1888, may redeem the mortgage of January 7, 1888, and may bring the 5 annas 4 pies share to sale for the balance then remaining due of the amount of principal and interest decreed by the Subordinate Judge in this suit by decreeing that the plaintiffs shall have their proportionate costs of the suit in the Court of the Subordinate Judge and the appeal to the High Court in respect of their claim against the 5 annas 4 pies share in Fatehpur-Lawaech and the defendants Gajadhur Mahto and Lalji Mahto, the amount of such costs to be ascertained by the High Court, and any costs paid by the appellants to Gajadhur Mahto and Lalji Mahto or his legal representatives or any of them shall be repaid to the plaintiffs ; and that in all other respects the decree of the High Court be affirmed, but that there shall be no costs of this appeal.