Judgement Consolidated Appeals (No. 87 of 1938) from a decree of the High Court (December 1, 1936) which modified a decree of the Subordinate Judge of Howrah (January 3, 1933). The suit out of which these consolidated appeals arose was brought on January 21, 1931, by the appellants Raja Janaki Nath Roy and Jadu Nath Roy, as mortgagees, against respondent No.1, the mortgagor, Raja Pramatha Nath Malia, and the mortgagors two sons, who were respondents Nos. 2 and 3, claiming repayment of Rs. 1,63,561-14-6, with interest, and in default of payment that properties A, 13, C and D, which had been mortgaged by respondent No. 1 to the appellants, be sold and the sale proceeds applied towards satisfaction of the debt which was due and owing in respect of the fourth mortgage on property D only. Respondent No. 4, Kumar Pramatha Nath Roy, was impleaded as a puisne mortgagee, and the question for decision was whether, as held by the High Court (Guha and Bartley JJ.), respondent No. 4 was entitled to be treated as a mortgagee of the properties A, B and C ranking in priority to the mortgage thereon to the appellants, or whether, as held by the Subordinate Judge, the appellants mortgage ranks in priority to any claim by respondent No. 4. The facts and the relevant terms of the mortgages appear fully from the judgment of the Judicial Committee. 1939. Oct. 12, 13, 16. L. P. E. Pugh K.C. and J. M. Pringle for the appellants. It is submitted that the fourth mortgage, of November 11, 1927, may be described as a "consolidation" of the whole of the advances made under that and the three previous mortgages, and that, generally speaking, the result was that there was one mortgage of all the properties A, B, C and D for the total amount due on the whole of the mortgages. To enforce their rights under the fourth mortgage the appellants were entitled to sell not only the property the subject of the fourth mortgage, but also the properties A, B, and C under the three earlier mortgages. To enforce their rights under the fourth mortgage the appellants were entitled to sell not only the property the subject of the fourth mortgage, but also the properties A, B, and C under the three earlier mortgages. Respondent No. 4 alleges that because of the payment in full of the sum due under the first three mortgages he had confined the appellants to selling only the property subject to the fourth mortgage, and that if there was a deficiency the appellants could not proceed against the properties of the mortgages A, B and C. That is the main dispute. There is secured by the fourth mortgage a sum which represents the totals of the three previous mortgages and the fourth mortgage itself. The fourth mortgage is therefore one which affects not only property D, but also properties A, B and C. The payment made was in fact the amount which was due on the first three mortgages. Sect. 61 of the Transfer of Property Act, 1882, abolishes the statutory right to consolidate, so there can be no consolidation unless there is a contract permitting it. There is such a contract here. Also by the contract there can be no redemption until there has been a payment of all the moneys. It is largely a question of what the intention of the parties was Gokuldoss Gopaldoss v. Rambux Seochand (( 1884) L. R. 11 I. A. 126, 133.); Dinobundhu Shaw Chowdhry v. Jogmaya Dasi (( 1901) L. R. 29 I. A. 9, 16.); and Raghunath Prasad v. Sarju Prasad.(( 1923) L. R. 51 I. A. 101,104.) The ordinary doctrine was stated by Lord Selborne L.C. in Jennings v. Jordan (( 1881) 6 App. Cas.698, 700.) as "A mortgagee, who holds several "distinct mortgages under the same mortgagor, redeemable, "not by express contract, but only by virtue of the right "which (in English jurisprudence) is called equity of redemption,’ may, within certain limits, and against certain "persons (entitled to redeem all or some of them), consolidate "them, that is, treat them as one, and decline to be redeemed "as to any, unless he is redeemed as to all." This Board has decided in reported cases that, by reason of the provisions of the Registration Act, an oral agreement cannot affect a mortgage; all that has happened in the present case is that a certain amount of money has been paid, but the receipt cannot be relied upon to show that it was intended as a discharge—it is simply a cash payment on account; that is all. The position on the documents is quite clear; none of these properties A, B, C and D is redeemable at all unless all are redeemed; all four have to be redeemed before there is a right of redemption. If some one comes in with an oral agreement that he has a right to redeem upon some other condition, that is varying the mortgage Kampta Singh v. Chaturbhuj Singh.(( 1934) L. R. 61 I. A. 185.) There cannot be subrogation if only a part of the moneys due under the encumbrances in respect 01 which subrogation is claimed has been paid. In the present case the mortgage is a comprehensive one, and only part of the money secured by the fourth mortgage has been paid off. There remains the question whether the position as to subrogation is regulated by s. 92 of the Transfer of Property Act, as amended by Act XX. of 1929. There has been a difference of opinion in the High Courts in India; some holding that s. 92 is of retrospective application, and some that it is not. It is submitted that it is not really ecessary for the Board to decide that point. Sect. 92 was held to be retrospective in Tola Ram v. Ram Lal (( 1932) I. L. R. 54 A. 897.) and Padma Lochan v. Shaik Ajimaddin (( 1938) 42 C. W. N. 1106, 1109.); the contrary was held in Bank of Chettinad, Ld. It is submitted that it is not really ecessary for the Board to decide that point. Sect. 92 was held to be retrospective in Tola Ram v. Ram Lal (( 1932) I. L. R. 54 A. 897.) and Padma Lochan v. Shaik Ajimaddin (( 1938) 42 C. W. N. 1106, 1109.); the contrary was held in Bank of Chettinad, Ld. v. Ma Ba Lo (( 1935) I. L.R. 14 R. 494), Kanjee and Mooljee Brothers v. Shanmugam Pillai (( 1932) I. L. R. 56 M. 169.) and Lakshmi Amma v. Sankara Narayana Menon.(( 1935) I. L. R. 59 M. 359.) The true view is that if it is not expressly stated to be retrospective, it is not. Sect. 74 of the Transfer of Property Act does not apply, and unless therefore s. 92 applies, the respondent has no case. Sir Herbert Cunliffe K.C. and W. Wallach for respondent No.4. Consolidation has very little to do with this case; its only relevance is that it is important to remember that, if the result of the fourth mortgage was to effect consolidation, consolidation has no application until default is made and the mortgage be enforced Cummins v. Fletcher.(( 1880) 14 Ch. D. 699, 709.) Here, so far as the fourth mortgage was concerned, the time for payment had not arrived, no default being possible until after two years, and therefore the mortgagor was not entitled to redeem. This case has been treated by counsel for the appellants as though it were an attempt on the part of respondent No. 4 to oust the appellants from some priority which they are supposed to hold. In fact, it is the very opposite; it is the appellants who are seeking to oust respondent No. 4 from the priority which he gets by reason of having paid off the first three mortgages. All through these transactions the mortgages are kept alive, and that has an important bearing in ascertaining the true position. The first three mortgages existed for the benefit of respondent No. 4, because he was subrogated to all the rights of the original mortgagees, the appellants, under the first three mortgages. All through these transactions the mortgages are kept alive, and that has an important bearing in ascertaining the true position. The first three mortgages existed for the benefit of respondent No. 4, because he was subrogated to all the rights of the original mortgagees, the appellants, under the first three mortgages. If the properties A, B and C are by the subsequent second, third and fourth mortgages also charged, it follows that although they are paid off, the mortgagor cannot ask for a reconveyance because they are already charged under the subsequent mortgages in respect of the moneys thereby advanced. The fact that these three are still left alive is a strong indication that it was never intended by the parties to lump them altogether. A mortgagor cannot ask for a reconveyance of mortgaged property if in fact he has created a charge on it subsequent to the one he has paid off. The right to repay and the corresponding right of the mortgagor to have the property reconveyed arise upon the time for repayment. There has been nothing here to alter either the date of repayment of the first three mortgages or the date of redemption. There has been no alteration in the priorities of the mortgages. Quite apart from technicalities as to legal and equitable estates, it is plain that a man who creates two charges on the same property cannot get the property free from the second charge unless he pays off the second charge as well as the first. Every subsequent mortgage in this series of mortgages, so far from rearranging the dates of redemption, treats the moneys under the preceding mortgages as then due and owing. The difference between English law and Indian law on this matter is dealt with in Mullas Transfer of Property Act, 2nd ed., p. 306. No doubt there is not the distinction in India that there is between legal and equitable estates in England, but there is a distinction between what a mortgagee gets and what a subsequent chargee gets. Ram Kinkar Banerjee v. Satya Charan Srimani (( 1938) L. R. 66 I. A. 50.) does not help in this case. In Mullas Transfer of Property Act, 2nd ed., the notes to s. 92, at p. 512, state that " Subrogation means sub stitution, for the person redeeming is substituted for the " incumbrancer whom he has paid off. Ram Kinkar Banerjee v. Satya Charan Srimani (( 1938) L. R. 66 I. A. 50.) does not help in this case. In Mullas Transfer of Property Act, 2nd ed., the notes to s. 92, at p. 512, state that " Subrogation means sub stitution, for the person redeeming is substituted for the " incumbrancer whom he has paid off. Subrogation is either "conventional or legal." [Reference was also made to pp. 513 and 515 of Mullas Transfer of Property Act, and to Dinohmdhu Shaw Chowdhry v. Jogmaya Dasi.(( 1901) L. R. 29 I. A. 9, 13.)] It is a question of intention, and there can be no doubt that the documents show conclusively that the purpose of respondent No. 4 in advancing the money to the mortgagor was that it should be utilized for paying off these charges, and that he should step into the shoes of the mortgagees. It is submitted that there is nothing which in any way alters the order of priority of these mortgages; that they were studiously kept alive by what has happened; and that there is nothing to interfere with the right of respondent No. 4 to be subrogated to the rights of the appellants under the first three mortgages. L. P. E. Pugh K.C. replied. The whole problem of subrogation can only arise in respect of a mortgage which has been redeemed; there cannot be subrogation until there has been redemption Gurdeo Singh v. Chandrikah Singh.(( 1907) I. L. R. 36 C. 193, 217, 220.) That case lays down a doctrine which entitles the appellants to succeed here. In the present case there is no longer a right to pay off any one mortgage; all of them must be paid off, and then there is a right to reconveyance that is what the appellants rely on. The parties have definitely contracted that no one mortgage shall be extinguished without extinguishing all; that is really the crux of the matter. The taking of the money in respect of the first three mortgages was a mere payment on account of the consolidated sum due on the fourth mortgage. Sect. 92 is of no application because it is not retrospective. Nov. 10. The judgment of their Lordships was delivered by LORD ROMER. The taking of the money in respect of the first three mortgages was a mere payment on account of the consolidated sum due on the fourth mortgage. Sect. 92 is of no application because it is not retrospective. Nov. 10. The judgment of their Lordships was delivered by LORD ROMER. These are consolidated appeals against the judgment and decree of the High Court of Judicature at Fort William in Bengal, dated December 1, 1936, which varied the judgment and decree of the Additional Subordinate Judge of Howrah, dated January 3, 1933. The question to be decided is whether, as held by the High Court, the respondent No. 4, Kumar Pramatha Nath Roy, is entitled to be treated as a mortgagee of the properties A, B and C hereinafter mentioned, ranking in priority to the mortgage thereon of the appellants, or whether, as held by the Subordinate Judge, the appellants mortgage ranks in priority to any claim of the said respondent. There was also at one time a question as to the relative priorities of the mortgages of the appellants and the said respondent on property D, hereinafter mentioned. It was, indeed, the question involved in the cross-appeal of the said respondent, being the second of the two consolidated appeals. This cross-appeal was, however, abandoned at the hearing before their Lordships, and the priority of the appellants claims in respect of this property is now admitted. The facts giving rise to the appeals are as follows. On April 8, 1924, Raja Pramatha Nath Malia, being the respondent No. 1, executed in favour of the appellants a mortgage on certain properties (hereinafter referred to as “property A”) to secure the sum of 2 lacs of rupees, repayable on April 8, 1925, with interest at .the rate of 10 per cent, per annum. The mortgage was in the usual English form. On November 30, 1925, respondent No. 1 executed another mortgage in favour of the appellants to secure a loan of 1 lac of rupees, repayable on November 30, 1926, with interest at the rate of 12 per cent, per annum. The mortgage recites that the mortgagor was entitled to certain properties therein mentioned (hereinafter referred to as " property B "), and was also entitled to property A subject to the said mortgage of April 8, 1924, on which it recites that the 2 lacs of rupees, and interest, were still owing. The mortgage recites that the mortgagor was entitled to certain properties therein mentioned (hereinafter referred to as " property B "), and was also entitled to property A subject to the said mortgage of April 8, 1924, on which it recites that the 2 lacs of rupees, and interest, were still owing. By the operative part of the deed the mortgagor purported to convey property B to the appellants, subject to the proviso for redemption thereinafter contained, and also charged property A with the repayment of the 1 lac of rupees and interest by way of additional "security"; and also "by way of additional security charged property B with the repayment of the moneys secured by the mortgage of April 8, 1924. Then followed the proviso for redemption. It provided in effect that if the mortgagor should pay the 1 lac with compound interest at 12 per cent. per annum on November 30, 1926, and should “on demand pay” all moneys secured by the mortgage of April 8, 1924, the mortgagee would reconvey to the mortgagor properties A and B. There then followed a covenant by the mortgagor for payment of the 1 lac on November 30, 1926, and of the interest thereon on the dates therein mentioned. It is a curious piece of conveyancing, but the effect of it is reasonably clear. The earlier mortgage of April 8, 1924, remained unimpaired. It was in no sense replaced by the later mortgage. The 2 lacs of rupees that had become repayable on April 8, 1925, remained owing as was recited in the later mortgage, and it was owing by virtue of the covenant to pay it contained in the earlier deed. No demand for repayment was necessary before the appellants could sue for its recovery, or enforce the first mortgage on property A by which it was secured. The mortgagor could, too, for his part pay off the 2 lacs, and the mortgagee could not refuse to accept them. But the mortgagee had by virtue of the later mortgage a second charge on property A to secure the 1 lac payable on November 30, 1926, and could not therefore before that date have been compelled to perform the several acts in relation to property A specified in s. 60 of the Transfer of Property Act under the headings (a), (b) and (c). The mortgagor could not therefore have redeemed property A as distinct from redeeming, i.e., paying off the first mortgage thereon. On November 29, 1926, respondent No. 1 executed another mortgage. The money secured this time was 1 lac of rupees, and the primary security for it consisted of a first charge on certain properties, hereinafter called property C. But the 1 lac was also charged on properties A and B as a third and second charge thereon respectively, and the moneys secured by the two prior mortgages were also charged as a first charge on property C. The indenture by which all this was carried out contains recitals of the two earlier mortgages (although the indenture of November 30, 1925, is recited as being one to secure the sum of 1 lac only), and recites that there was then due and owing by the mortgagor to the mortgagees under the mortgage of April 8, 1924, the principal sum of 2 lacs of rupees, with interest, and under the mortgage of November 30, 1925, the principal sum of 1 lac with interest. (This was not quite accurate, inasmuch as the 1 lac was not payable until the following day.) Then there followed a recital that the date of repayment of the amount due under the mortgage of April 8, 1924, having expired, the mortgagees called upon the mortgagor to repay the same, but that the mortgagor, being unable then to repay it, had offered to furnish additional security for the amounts that were then, or might thereafter be, due to the mortgagees under the two mortgages of April 8, 1924, and November 30, 1925, in the manner thereinafter appearing. By the operative part of the deed the mortgagor, in consideration of the further advance then made to him of another lac of rupees, purported to convey property C to the mortgagees, "subject to the proviso for redemption hereinafter "contained." It was then witnessed that to secure the repayment of this further lac the mortgagor charged properties A and B, and that the same should not be redeemed or redeemable until " the said sum of rupees 2 lacs and 1 lac secured by "the hereinbefore in part recited indentures of mortgage, "together with interest and costs as in the said indentures "respectively mentioned, as also the said further sum of "rupees 1 lac, together with interest and costs as herein "mentioned, are fully repaid and liquidated." The mortgagor then by way of further and additional security, and in consideration of the sums due under the earlier mortgages, charged and mortgaged property C, and then follows this provision " And the same shall not, notwithstanding anything hereinafter contained, be redeemed or redeemable until the said principal sums of rupees two lacs, one lac and one lac respectively, together with interest thereon as provided by the said recited indentures of mortgage and hereby respectively, is fully paid and "liquidated." Then there follows a proviso which, so far as material, is to the following effect that if the mortgagor should on November 29, 1927, pay to the mortgagees the 1 lac then advanced with interest thereon, and should pay all the outgoings on properties A, B and C, and should also pay all moneys that might be owing under the mortgages of April 8, 1924, and November 30, 1925, then the mortgagees would reconvey the properties A, B and C. Following upon this proviso there is a covenant by the mortgagor for payment on November 29, 1927, of the 1 lac then advanced, together with interest at 10 per cent, per annum as therein mentioned. The provisions contained in this indenture relating to redemption of the various properties are somewhat obscure. They overlap, and are to some extent redundant. For it is quite plain, in their Lordships opinion, that the indenture is not, and was not intended to be, a comprehensive mortgage of properties A, B and C replacing the two earlier mortgages of April 8, 1924, and November 30, 1925. They overlap, and are to some extent redundant. For it is quite plain, in their Lordships opinion, that the indenture is not, and was not intended to be, a comprehensive mortgage of properties A, B and C replacing the two earlier mortgages of April 8, 1924, and November 30, 1925. Those two mortgages are treated as continuing in existence and the sums of 2 lacs and 1 lac thereby respectively secured would be recoverable by the mortgagees by virtue of the covenants to pay them therein respectively contained, and not by virtue of any covenant to pay them contained in the indenture in question. For there is no such covenant. At any time after November 29, 1926, the mortgagor could have compelled the mortgagees to accept payment of the 2 lacs and the 1 lac, and so have redeemed the two mortgages. He could not, however, have redeemed the properties A and B with the results mentioned in s. 60 of the Transfer of Property Act. But this would have been due to the fact that the mortgagees, by virtue of the third mortgage, had a third charge on A and a second charge on B to secure the 1 lac of rupees advanced when the last-mentioned mortgage was executed. The provisions in this mortgage relating to the redemption of these two properties are, in their Lordships opinion, merely recognition of this fact. On November 11, 1927, respondent No. 1 executed yet another mortgage in favour of the appellants, this time on properties hereinafter referred to as property D, and to secure a fresh advance of Rs.1,25,000, with interest at 9 per cent., to be repaid on November 11, 1929. The mortgage (in which respondent No. 2 joined as a guarantor) followed very closely the mortgage of November 29, 1926, though in some respects the conveyancing showed a slight improvement. It recited the three earlier indentures of mortgage, and that there was then due and owing to the mortgagees " under and by virtue "of" the said indentures respectively the principal sums of 2 lacs, 1 lac and 1 lac, with certain sums for interest. There followed a covenant to repay the further sum of Rs. It recited the three earlier indentures of mortgage, and that there was then due and owing to the mortgagees " under and by virtue "of" the said indentures respectively the principal sums of 2 lacs, 1 lac and 1 lac, with certain sums for interest. There followed a covenant to repay the further sum of Rs. 1,25,000, then being advanced, with interest thereon at 9 per cent, per annum, on November 11, 1929, and a " grant " to the mortgagees of property D subject to the proviso for redemption thereinafter contained. This proviso was in the usual English form—namely, that if the mortgagor should on November 11, 1929, pay the Rs.1,25,000, with interest, the mortgagees would reconvey property D to the mortgagor, or as he should direct. But then follows a clause to which the appellants attach much importance. It is in these terms " And the mortgagor doth "hereby declare that all those properties " (being the properties A, B, C and D) "shall be a security for and stand charged with "the payment to the mortgagees of the moneys due under "the said indentures of mortgage dated, respectively, the "8th April, 1924, the 30th November, 1925, and the 29th "November, 1926, and the said sum of Rs.1,25,000 and the "interest thereon according to the covenant hereinbefore "contained and shall not be redeemable until payment to "them of all moneys due under the said mortgages of the "8th April, 1924, 29th November, 1925 (sic), and 30th "November, 1926 (sic), and the sum of Rs.1,25,000 with "interest thereon respectively." It was then provided that all the powers, provisions, covenants and agreements contained in the said three recited indentures of mortgage relating to the title or for securing the repayments of all moneys due thereunder or otherwise should extend to and be applicable for securing the further sum of Rs.1,25,000, and all interest, costs, charges and expenses in the same manner in all respects as if the same powers, provisions, covenants and agreements were therein repeated with such alterations as would be necessary in consequence of the further advance of Rs.1,25,000. It is contended by the appellants that this mortgage of November 11, 1927, is a comprehensive mortgage of properties A, B, C and D to secure the repayment of the four sums of 2 lacs, 1 lac, 1 lac and 1,25,000 of rupees, and that the three earlier indentures no longer subsisted as separate and independent mortgages. Their Lordships are unable to accept this contention. The mortgage is in much the same form mutatis mutandis as the mortgages of November 30, 1925, and November 29, 1926; and their Lordships have already given their reasons for thinking that neither of these two mortgages put an end to the mortgage or mortgages that preceded them. The same sort of reasoning applies equally to the mortgage of November 11, 1927. This mortgage recites the three earlier mortgages, and treats them as being on foot. Had the mortgagees sought to recover the moneys due under them they would have had to sue the mortgagor upon the covenants therein respectively contained. Such covenants had in no way been abrogated or replaced by any covenant for repayment contained in the fourth mortgage. The moneys secured respectively by the four mortgages were, moreover, repayable at different times, and did not all carry interest at the same rate. It is almost inconceivable that if the intention of the parties had been to create a fresh and comprehensive mortgage on all the four properties to secure the sum of Rs.5,25,000, the indenture of November 11, 1927, would have assumed the form that it did, even though the parties may have wished that the four items making up that sum should be repayable at different times and carry varying rates of interest. There would have been a new covenant for payment covering all four sums, and a new charge of the entire sum on all the four properties A, B, C and D. It is, however, to be observed that the result of doing this and abrogating the existing mortgages on A, B and C would have been to give priority to any intermediate charge the mortgagor might, unknown to the appellants, have created upon those properties. To avoid this, it was essential for the appellants to keep the three existing mortgages on foot, and this, in their Lordships opinion, they successfully accomplished. To avoid this, it was essential for the appellants to keep the three existing mortgages on foot, and this, in their Lordships opinion, they successfully accomplished. How material it is to arrive at a proper conclusion upon this point will become apparent at a later stage in this judgment. In the month of December, 1927, respondent No. 1 was desirous of paying off the appellants, and accordingly arranged that respondent No. 4 should advance him the sum of Rs.7,25,000 on the security of properties A, B, C and D and certain other immovable properties of his. But though the dates fixed for repayment of the first three of the mortgages had passed, the repayment date provided in the fourth mortgage had not yet arrived. In these circumstances the respondent No. 1, by an indenture dated December 27, 1927, purported to grant and convey to the respondent No. 4, by way of mortgage, properties A, B, C and D and other the properties set forth in the schedule thereto to secure repayment of the sum of Rs.7,25,000. In these circumstances the respondent No. 1, by an indenture dated December 27, 1927, purported to grant and convey to the respondent No. 4, by way of mortgage, properties A, B, C and D and other the properties set forth in the schedule thereto to secure repayment of the sum of Rs.7,25,000. In this mortgage the four previous mortgages to the appellants were recited, and then there followed a recital in these terms" Whereas the said last mortgage of the eleventh day of November one thousand nine hundred and twenty-seven not having yet fallen due the mortgagor and the said Kumar Pasupathi Nath Malia, have requested the mortgagee to retain in his hands on account of the mortgagor out of the said sum of Rupees Seven Lacs and "Twenty-five thousand the sum of Rupees one Lac and fifty thousand to be held and applied by the mortgagee for and on account and on behalf of the mortgagor in payment of the said mortgage of the eleventh day of November one thousand nine hundred and twenty-seven as and when the same may fall due and to pay to the mortgagor at the execution of these presents the balance of Rupees Five Lacs and seventy-five thousand with a view to enable him simultaneously therewith to pay off thereout the moneys under the said three several recited Indentures of mortgage of the eighth day of April one thousand nine hundred and twenty-four, thirtieth day of November one thousand nine hundred and twenty-five and the twenty-ninth day of "November one thousand nine hundred and twenty-six." This recital was substantially repeated in the operative part of the indenture, which also contained a clause to the following effect " It is hereby also agreed and declared by and between "the parties to these presents that upon payments of the "amounts due to the said Raja Janaki Nath Roy and Jadu "Nath Roy under the said several mortgages of the eighth day of April one thousand nine hundred and twenty-four, thirtieth day of November one thousand nine hundred and twenty-five, twenty-ninth day of November one thousand "nine hundred and twenty-six and eleventh day of November one thousand nine hundred and twenty-seven respectively or any of them the Mortgagee will in addition to the security hereby created be also entitled to be subrogated to the position of the said Raja Janaki Nath Roy and Jadu Nath Roy notwithstanding that a Reconveyance or Reconveyances shall have been granted by the said Raja Janaki Nath Roy and Jadu Nath Roy in respect of the mortgage or mortgages paid off and such mortgage or mortgages shall be deemed to be kept alive for the benefit and protection of the "mortgagee." This indenture having been (or being about to be) executed, a representative of respondent No. 4, together with a repre sentative of respondent No. i, called upon the first of the two appellants on December 27, 1927, and tendered him a cheque for the amount due under the first three mortgages. The said appellant was not at first willing to accept the money unless the amount which was owing, but had not yet becomepayable, under the fourth mortgage was paid at the same time. But on the next day, upon being made acquainted with the provision of the mortgage of December 27, 1927, relating to the payment of this last mentioned amount when it fell due, he withdrew his objection, and he was then paid on behalf of himself and the other appellant the full sum due under the first three mortgages. It has not, however, been proved that the appellants, or either of them, were at this time made 85 Law. Rep. 67 Ind. App. 82 ( 1939- 1940) Raja Janaki Nath Roy V. Raja Pramatha Nath Malia 193 acquainted with the provisions in the mortgage of December 27, 1927, as to respondent No. 4 being subrogated to the rights of the appellants under the first three mortgages. For reasons into which it is not now material to inquire respondent No. 4 was not willing to pay off the remaining amount secured by the fourth mortgage when it fell due for payment on November 11, 1929, and such mortgage has accordingly never been discharged in full. In these circumstances, the appellants, on January 21, 1931, instituted the present suit for the purpose of enforcing their rights under the fourth mortgage. They impleaded as defendants the mortgagor, respondent No. 1, and respondents 2 and 3, to whom respondent No. 1 had in the meantime assigned his equity of redemption. Taking the view that the only effect of the payments to them of the moneys due under the first three mortgages was to leave them in the position of first mortgagees of properties A, B, C and D for the amount still remaining due to them under the fourth mortgage, they also impleaded respondent No. 4 as a person who, by reason of the mortgage in his favour of December 27, 1927, was entitled to redeem the fourth mortgage. They prayed a decree for the sum remaining due under the fourth mortgage, and in default of payment a sale of properties A, B, C and D. The defence of respondent No. 4 (the only defendant whose position has to be considered on this appeal) was, so far as is now material, that in the circumstances he was in the position of first mortgagee of the properties A, B and C as having been subrogated to the position of the appellants under the first three mortgages. The Subordinate Judge, however, decreed the suit. He thought that the fourth mortgage contained a contract to the contrary within the meaning of s. 61 of the Transfer of Property Act, and that the appellants had a right of con solidation that was fatal to the contention of respondent No. 4. That being so, he said, the principle of subrogation "has no room to play." He nevertheless considered the law as to subrogation at some length, and came to the conclusion that it could not in any event have availed the said respondent inasmuch as (1.) the first three mortgages had been paid off not by the said respondents but by the mortgagor, and (2.) that there could never be subrogation where a mortgagee is not paid off in full. The matter then went to the High Court by way of appeal. The appeal was successful. The Court held that though by reason of the express contract contained in the fourth mortgage the appellants had not been deprived by s. 61 of a right to consolidate their mortgages, yet the doctrine of consolidation could not avail them inasmuch as at the date of the payment off of the first three mortgages the money due under the fourth mortgage had not then become payable. As to the question of subrogation, they observed that the proposition laid down by the Subordinate Judge upon that point had not been supported in the arguments before them, but considered that the equitable right of subrogation was recognized in India. The High Court accordingly varied the decree of the Subordinate Judge by dismissing the suit against respondent No.4, with costs there and below, by decreeing the suit against respondents 1 to 3 alone, and by ordering in default of payment of the sum decreed a sale of property D only. The High Court accordingly varied the decree of the Subordinate Judge by dismissing the suit against respondent No.4, with costs there and below, by decreeing the suit against respondents 1 to 3 alone, and by ordering in default of payment of the sum decreed a sale of property D only. From that judgment an appeal is now brought by the appellants to His Majesty in Council. With all respect to the learned judges in the Courts below, the doctrine of consolidation has nothing to do with the case. That doctrine can only apply where a mortgagee holds (say) a mortgage on property A and also a separate mortgage on property B belonging to the same mortgagor. In such a case, after the expiry of the legal right of redemption the mortgagor, in cases where the right of consolidation is still applicable, is only allowed to exercise his equitable right of redemption of the one property on the terms of redeeming the other. In the case, however, of a mortgagee holding a first mortgage on property A and also a second mortgage on the same property, the mortgagor cannot on payment off of 85 Law. Rep. 67 Ind. App. 82 ( 1939- 1940) Raja Janaki Nath Roy V. Raja Pramatha Nath Malia 194 the first mortgage redeem the property, that is to say, claim a reconveyance and delivery up of the title deeds, and so forth, unless he repays what is due on the second mortgage. But this is not because of the doctrine of consolidation, but by reason of the fact that he has a second mortgage on the property. Now on December 28, 1927, the position of the appellants in relation to properties A, B and C was that they were in effect first mortgagees of such properties to secure the sums advanced under the first three mortgages. But they also held a charge upon the properties to secure the sum advanced under the fourth mortgage, a sum, however, which had not then become due. In those circumstances they could not have refused to accept payment of the former sums when tendered. But the properties themselves could not be wholly redeemed because of the charge thereon of the sum advanced under the fourth mortgage, a position that was recognized by the express terms of that mortgage. In those circumstances they could not have refused to accept payment of the former sums when tendered. But the properties themselves could not be wholly redeemed because of the charge thereon of the sum advanced under the fourth mortgage, a position that was recognized by the express terms of that mortgage. This did not, however, in any way affect the right of a person, other than the mortgagor himself, on paying or providing for the payment of the sums due under the first three mortgages to be subrogated to the rights of the appellants under those documents. In this connection reference must now be made to s. 92 of the Transfer of Property Act, of which the third and fourth paragraphs are in these terms— "A person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such person shall be so subrogated. "Nothing in this section shall be deemed to confer a right of subrogation on any person unless the mortgage in respect of which the right is claimed has been redeemed in full." This section was inserted in the Act by s. 47 of the Amending Act, XX. of 1929, and was not therefore in force in December, 1927, though there have been conflicting decisions in India upon the question whether or not the section has a retrospective effect. Their Lordships do not find it necessary to express any opinion upon this question, because, whether the case now to be decided be governed by the section or by the law applicable in India before this section was passed, the respondent No. 4 is, in their Lordships judgment, entitled to the right of subrogation that he claims. Taking first the law as it stood in December, 1927, it has nowhere been better expressed than it was by Mookerjee J., in Gurdeo Singh v. Chandrikah Singh.(( 1907) I. L. R. 36 C. 193.) That learned judge said this (Ibid. Taking first the law as it stood in December, 1927, it has nowhere been better expressed than it was by Mookerjee J., in Gurdeo Singh v. Chandrikah Singh.(( 1907) I. L. R. 36 C. 193.) That learned judge said this (Ibid. 217.) " It may be said, in general, that to entitle one "to invoke the equitable right of subrogation, 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 otherwise be adequately protected." As already stated, respondent No.4 in terms contracted with the mortgagor that on payment off of the first three mortgages out of the money advanced by him he was to be subrogated to the rights of the appellants under those mortgages. Mookerjee J., however, went on to point out that a person who claims to be subrogated to the rights of a mortgagee must pay the entire amount of the incumbrance in question. Payment of a portion only of the incumbrance is not sufficient. It is obvious, he said, that the contrary views would lead to endless difficulties. With these observations of the learned judge their Lordships desire to express their entire agreement. It is, indeed, to be observed that such a qualification of the right of subrogation applies whether the right be claimed under the statute or under the pre-existing law. Turning now to the statute, the first thing to be observed is that the third paragraph of s. 92 only 85 Law. Rep. 67 Ind. App. 82 ( 1939- 1940) Raja Janaki Nath Roy V. Raja Pramatha Nath Malia 195 applies where the mortgage has been redeemed. In the present case it is said that the mortgage has not been redeemed inasmuch as there has been no reconveyance, or what in India takes the place of a reconveyance. This contention, however, loses sight of the distinction between the redemption of a mortgage and the redemption of the property mortgaged. In their Lordships opinion, it is clear that the words in the section "mortgage "has been redeemed” refer merely to the payment off of the mortgage money and not to an extinction of the mortgagees rights over the mortgaged property. In their Lordships opinion, it is clear that the words in the section "mortgage "has been redeemed” refer merely to the payment off of the mortgage money and not to an extinction of the mortgagees rights over the mortgaged property. If such rights had become extinguished there would be none to which the person advancing the money could be subrogated. The fourth paragraph, moreover, seems to contemplate that a mortgage may be redeemed in part, and this clearly shows that by redemption is meant no more than payment of the mortgage money. That being so, and the mortgage of December 27, 1927, having been duly registered, the respondent No. 4 is entitled to be subrogated to the rights of the appellants under the first three mortgages by virtue of the plain terms of s. 92 if such section be applicable. If it is not applicable, he has a conventional or contractual right to be so subrogated under the pre-existing law. But in neither case could he have been so subrogated if only a part of the moneys due under the incumbrances in respect of which he claims to be subrogated has been paid. Now, it is contended by the appellants as to this that the result of the transactions between them and their mortgagor culminating in the mortgage of November 11, 1927, was as if there had been but one mortgage of the whole of the properties A, B, C and D for the total amount due on the whole of the mortgages, that is to say, that the fourth mortgage was a comprehensive mortgage of all the properties, taking the place of and putting an end to the first three mortgages. If the appellants are right as to this they are entitled to succeed; for only part of the money secured by the fourth mortgage has been paid. It was in order to ascertain whether this contention could prevail that their Lordships thought it necessary in the earlier part of this judgment to consider the provisions of the appellants mortgages in some detail. Having done so, and for the reasons there given, their Lordships, as already stated, are unable to accept the appellants contention upon this point. Their Lordships are accordingly of opinion, and will humbly advise His Majesty, that both the appeal and the cross-appeal should be dismissed. Having done so, and for the reasons there given, their Lordships, as already stated, are unable to accept the appellants contention upon this point. Their Lordships are accordingly of opinion, and will humbly advise His Majesty, that both the appeal and the cross-appeal should be dismissed. In the circumstances they think that the proper order to make as to costs is to direct the appellants to pay nine-tenths of the costs of respondent No. 4 of the consolidated appeals.