Rowland, J.This is an appeal by the plaintiff in a suit under Rule 63, Order 21, Civil P.C. The plaintiff was a decree-holder who having obtained a mortgage decree and put the property hypothecated to sale obtained a personal decree on 12th February 1936, for the balance due on his mortgage against defendants 13 to 22, the heirs of his mortgagor Sheikh Tawakal. In execution he sought to attach one anna six pies share in village Kundelowa which had been the property of Shaikh Tawakal. Defendants 1 to 11 preferred a claim case under Order 21, Rule 58 as this property had been transferred to them in January 1935, by defendants 13 to 17. The claim succeeded: hence, the suit in which the plaintiff contended first that the whole transfer was void as having been without consideration, collusive and fraudulent; alternatively that defendants 13 to 17 had only 21/40ths share in the property transferred and could not be entitled in respect of the remaining 19/40ths which belonged to defendants 18 to 22.

2. It was found by both Courts that defendants 1 to 11 acquired a valid title to 21/40ths of the property, but that 19/40ths did not belong to the transferors. The first Court gave the plaintiff a decree to the extent of 19/40ths of the property declaring that this share was liable to attachment and sale. On appeal it was contended firstly that defendants 18 to 22 and the plaintiff as claiming under them were estopped on the principle of Section 41, T.P. Act, from setting up their title; and secondly that in any case defendants 1 to 11 were entitled to be subrogated to the rights of prior mortgagees whom they had redeemed by payment of mortgage money amounting to Rs. 3600. The Subordinate Judge who heard the appeal allowed the first contention and rejected the second.

3. In second appeal, it is pointed out that no case of estoppel u/s 41, T.P. Act, was set up in the written statement and that this case should not have been allowed to be put forward at the hearing. Mr. Mullick for the respondents contends that it was a case of estoppel falling within Section 115, Evidence Act, and relies on the Privy Council decision in Mahomed Mozuffer Hossein v. Kishori Mohan Roy (1895) 22 Cal 909 for the contention that such an estoppel could be applied if it arises even though not pleaded; but indeed there is no evidence of representation by defendants 19 to 22 to defendants 1 to 11 on which an estoppel u/s 115, Evidence Act, could be based. The first contention of the plaintiff must therefore be allowed. He is entitled to put the 19/40ths share to sale subject to what I have next to say.

4. The Subordinate Judge was in error in holding that the benefit of subrogation could not be claimed by the defendants u/s 92, T.P. Act. Clause 1 of this Section confers the right of subrogation on all persons other than the mortgagor to whom the right to redeem is given by Section 91 including any co-mortgagor. Clause 3 does not detract from this right but enacts that it can be extended to a creditor who without taking an interest in the property has advanced money with which the mortgagor has been enabled to redeem the mortgage. The application of this clause in my view may be illustrated thus. M has mortgaged a property to E.M. borrows money on a plain hand-note from C. With it he pays off the mortgage money C gets no right of subrogation. Alternatively M borrows from C under a registered instrument containing an agreement that C shall be subrogated to the rights of the mortgagee. In this case C obtains the benefit of subrogation. The true position of defendants 1 to 11 is clearly within Clause 1 of Section 92. They are persons who have acquired the equity of redemption to the extent of 21/40ths. This puts them in the position of co-mortgagors with the owners of the other 19/40ths of the equity of redemption.

6. Having redeemed the entire mortgage they are entitled to the right of subrogation u/s 92 or Section 95 and the 19/40ths in their hands can only be attached and sold subject to a redemption of their charge by payment of 19/40ths of the mortgage money. The appeal must be allowed and the suit decreed in a modified form the plaintiff getting a declaration that he is entitled to bring to sale 19/40ths share of the property subject to the mortgage lien of defendants 1 to 11 as explained above. Parties to bear their own costs throughout.

Agarwala, J.

7. I agree.