Judgment Shib Chandra Prasad, J. 1. The plaintiff has come up in second appeal against the judgment of the Subordinate Judge of Darbhanga setting aside the judgment and decree passed by the 2nd Additional Munsif of the same place. 2. The only question, which has to be considered and decided in this appeal, is whether the plaintiff is entitled to rely upon Sec.101 of the Transfer of Property Act and claim that she had kept alive her mortgage charge on the property in dispute as against the respondent, who had purchased it in auction sale held in execution of decree obtained by the landlord for arrears of rent. 3. The above question arises in the following circumstances : The property in dispute measures 1 bigha 19 kathas 17 dhurs bearing survey plot No. 15937 of khata No. 1860 and survey plot No. 16070 of khata No. 1684. It was part of a larger area of 3 bighas 13 kathas 9 dhurs, which formed a raiyati holding belonging to one Mohibul Hassan and others, and was under the zemindari of Raj. Darbhanga, The entire holding was sold in execution of the decred for arrears of rent and was purchased by two persons, Rabi Pasban and Sheikh Juman. Rabi Pasban and the heirs of Sheikh Juman subsequently mortgaged the disputed land to the plaintiff-appellant by a registered bharna bond dated 8-10-1923 and the appellant was put in possession as mortgagee, but the land was again put to sale, in execution of another rent decree obtained by the landlord against Rabi Pasban and Sheikh Juman in Rent Execution Case No. 584 of 1929. The auction-purchaser was one Sheikh Jangli. The plaintiffs case was that Jangli was her benamdar, because it was she who had purchased the property at the court sale in 1929 in his name. This sale was confirmed on 26-9-1929; and the plaintiff continued in possession as before as she was already in possession as bharnadar. Later on, on the 9th November, 1933 she got an ekrarnama ladavi deed by Jangli admitting the position that the real owner of the property was the plaintiff herself and not Sheikh Jangli. 4. It appears that in 1938 the landlord filed another rent suit against Jangli and obtained a decree on 1-11-1938. It was executed by the landlord decree-holder in 1939 in Rent Execution Case No. 1470 of that year. 4. It appears that in 1938 the landlord filed another rent suit against Jangli and obtained a decree on 1-11-1938. It was executed by the landlord decree-holder in 1939 in Rent Execution Case No. 1470 of that year. The land was sold and the landlord-decree-holder purchased it on 10-7-1940 and took delivery of possession on 21-2-1941. It was then settled by the landlord with defendants 1st party-respondents. 5. The plaintiff filed this suit making several allegations against the conduct of defendants 1st party alleging fraud, but with that aspect of the, matter this appeal is not concerned and it is not necessary to set out those facts here, 6. The plaintiff-appellant had, at first, prayed for relief for declaration of title and recovery of possession after an adjudication that the decree passed in Rent Suit No. 481 of 1938 and the subsequent sale in Rent Execution case No. 1470 of 1939 were fraudulent and collusive and the settlement in favour of defendants 1st party was illegal and in valid, but at a later stage the plaintiff added a further relief in the plaint by amending it. She alleged that her bharna bond had not been annulled and if she was held not to be the real purchaser at the auction sale in which Jangli was the auction-purchaser, it should be declared in her favour that her right as a mortgagee had remained alive. 7. The defendants 1st party, inter alia, controverted this claim of the plaintiff alleging that there had been extinguishment by merger of the interest of the plaintiff as mortgagee when she had purchased the property in auction sale in the name of Jangli, and, therefore, the encumbrance was no longer in existence and in fact did not remain alive when subsequently the holding was sold in execution of rent decree against Jangli in 1940. 8. The learned Munsif did not accept this contention of the defendants 1st party, and held that there had been no merger, because there had been no "coalescing of the interest" and also because the intention of the plaintiff was to keep alive the bharna of 1923. The learned Subordinate Judge has disagreed with the learned Munsif and has upheld the contention of the defendants. 9. On other points the two courts have agreed. The learned Subordinate Judge has disagreed with the learned Munsif and has upheld the contention of the defendants. 9. On other points the two courts have agreed. Their concurrent findings on those points, are that it was the plaintiff who was the real purchaser of the holding in the name of Jangli 1929, that Jangli was a benamdar of the plaintiff, that no fraud had been committed by defendant No. 2, that the subsequent rent decree obtained by Raj Darbhanga in respect of this holding in the name of Jangli and its subsequent sale in execution of tho decree were not fraudulent not having been brought about by defendant No. 2 and that the sale held in the execution case of 1938 whereby the holding was purchased by the Raj was legal and valid. On the point of possession and settlement the courts below have differed partly. It has been held concurrently by them that the disputed land had been duly settled by the landlord after the auction purchase and delivery of possession, but on the point of actual possession the appellate court has disagreed with trial court and has held that the defendants had been able to prove that they had been in possession of the land after their settlement. 10. Now, as already stated, the only point which has been pressed before me is that the lower appellate court has committed an error of law in holding that there was a merger when the property in dispute had been purchased by the plaintiff in. 1929 in the name of Jangli. 10. Now, as already stated, the only point which has been pressed before me is that the lower appellate court has committed an error of law in holding that there was a merger when the property in dispute had been purchased by the plaintiff in. 1929 in the name of Jangli. In this connection the relevant section of the Transfer of Property Act is Sec.101, which runs as follows : "Any mortgagee of, or person having a charge upon, immoveable property, or any transferee from such mortgagee or charge-holder, may purchase or otherwise acquire the rights in the property of the mortgagor or owner, as the case may be, without thereby causing the mortgage or charge to be merged as between himself and any subsequent mortgagee of, or person having a subsequent charge upon, the same property; and no such subsequent mortgagee or charge-holder shall be entitled to foreclose or sell such property without redeeming the prior mortgage or charge, or otherwise than subject thereto." This is the new section replacing the old one, which was differently worded and it is not denied that it is this new section which will apply to tho present case. The old section ran as follows : "Where the owner of a charge or other incumbrance on immoveable property is or becomes absolutely entitled to that property, the charge or incumbrance shall be extinguished, unless he declares, by express words or necessary implication, that it shall continue to subsist, or such continuance would be for his benefit." A comparison of the two sections will make it clear that while under the old section the merger was ordinarily to take place, it has been made an exception now by the new section. According to this section, as it stands at present, the existence of a subsequent encumbrance prevents the merger. The subsequent encumbrance must, however, be existing at the time when the acquisition of the right of the mortgagor in the property by the mortgagee takes place. It is true that there are several decisions in which it has been laid down that when it is to the advantage of the mortgagee it should be presumed that the intention was to keep alive the prior charge as against the subsequent encumbrancers. It is true that there are several decisions in which it has been laid down that when it is to the advantage of the mortgagee it should be presumed that the intention was to keep alive the prior charge as against the subsequent encumbrancers. Those cases are still good law no doubt but subject to the qualification that in view of the present section merger can take place only when there is no subsisting charge at the relevant time. Learned Counsel for the appellant has cited a number of rulings, namely, Banbihari Kapur V/s. Khetra Pal Singh Roy, ILK 38 Cal 923 : 16 Cal WN 259, Sonaulla Karikar V/s. Abu Sayad Mahammad Ismail AIR 1930 Cal 530, Abdul Majid V/s. Arunchala Mudaliar, AIR 1932 Mad 84 , Someshwari Prasad Narain Deo V/s. Maheshwari Prasad Narain Deo, ILR 10 Pat 630: (AIR 1931 Pat 426) and Makhan Mal V/s. Gokal Chand, AIR 1932 Lah 237. It is unnecessary to examine these cases in detail, because, as already stated, they deal with the aspect of the matter referring to the circumstances under which it shall be presumed that the merger had not taken place because the intention of the mortgagee was to keep alive the charge, but the crucial fact remains that in order to attract the principle of this section, it is necessary that there should be an existing charge-holder at the time when the acquisition is made by the prior mortgagee. 11. In this case there is nothing to show that in October, 1929 when the plaintiff-appellant had purchased the property in dispute in execution of the rent decree of the landlord in the name of Jangli there was any charge in the shape of arrears of rent outstanding in favour of the landlord. Indeed, we such case appears to have been made out at any stage by the plaintiff. That being the position, there can be no question of the application of the principle as embodied in Sec.101 of the Transfer of Property Act and the plaintiff cannot say that she kept the encumbrance alive, because as soon as she purchased the equity of redemption of the mortgagors in execution of the rent decree of the landlord in 1929 there was merger, and consequent extinguishment of the charge held by the plaintiff, as bharnadar. Subsequently, when the same landlord obtain ed the decree for rent against Jangli for arrears of rent in 1938, that was for a period subsequent to the acquisition of the right, which the mortgagors had in the property by the plaintiff herself. She has got no month then to say that as against the landlord she had kept alive the right, which she had by the bharna bond, when the landlord had obtained the decree against her in the name of Jangli for the rent due to the landlord by her for the land. There is, therefore, no substance in the contention raised before me by the learned Counsel for the appellant The point fails. No other point was pressed before me. The appeal is, therefore, dismissed with costs.