Madhavan Nair, J.

1. It is clear that the Subordinate Judge came to the conclusion that though the property mortgaged under the deed belonged to the idol and not to the mortgagors, it could be proceeded against under the suit mortgage because (1.) the appellant by discharging the mortgage debt by his loan had subrogated himself to the rights of the decree-holder in suit No. 141 of 1919 in which he had obtained a decree for the sale of the suit property; and (2.) under Clause 5, read presumably with his finding that respondent No. 1 was the de facto manager, the rights of the idol in the property had been validly mortgaged by him by mortgaging all rights and interest which he held, which would include the title to the property vested in him as trustee of the idol also. In support of ground No. 1, the learned Subordinate Judge relied on the equitable doctrine of subrogation enunicated in the well-known decision of Butler v. Rice (1910) 2 Ch. 277. In passing, he also referred to Sections 91 and 92 of the Transfer of Property Act.

2. In this appeal Sir Thomas Strangman argued that "in the" circumstances of the case the appellant was entitled to be "subrogated to the rights of the decree-holder in suit No. 141 "of 1919," and further, he supported the judgment of the Subordinate Judge for the reasons therein given. As the question for decision is whether the mortgage deed is binding. on the idol, their Lordships will first examine the terms of the deed. After reciting the death of Lalta Bibi in 1908, the document states that since her death Mukandi Lal, father of the executants, had been in possession of the suit property by right of inheritance, and since his death the executants had been in "proprietory possession" thereof. Then it states that it is necessary to pay the mortgage debt on the property which had been createdby Lalta Bibi for valid reasons as found by the High Court in A.S. 41 of 1921, that the property is sought to be sold in auction, and that it is necessary to pay the debt to safeguard the property "which " is likely to prove beneficial to the family and to the minor." Then it says in Clause 5 and 8 that all the rights and interests appertaining to the house held by the executants "at present," or which we [the executants] might acquire in future "are pledged for the loan and that" the creditor shall have... "all powers and rights of sale by auction which the decree-"holder in appeal No. 41 of 1921 has in satisfaction of which the "property has been advertised for sale." It is clear to their Lordships that respondent No. 1 purported to execute the deed along with his brother and his son, claiming the property as their own family property. In the whole of the document from beginning to end there is no mention whatever that the idol has any rights in the property. It is no doubt true that the necessity for the loan was said to be the impending sale of the property and the execution of the decree against the idol, but the property is to be safeguarded as it is likely to prove beneficial to the family and the minor, and not to the idol. In their Lordships opinion, the document by its terms does not purport to mortgage the interests which the idol has in the property. This is the opinion of the High Court as well as of the trial court also; if so, it is difficult to see how under the express terms of the document any interest which the idol has in the property can be proceeded against.

3. The Subordinate Judge, however, thinks its interests in the property have been mortgaged because of Clause 5 of the deed, read in the light of his finding that at the time of the deed respondent No. 1 "alone" was the de facto manager and trustee of the idol and was entitled to act in emergency. Shortly put, the reasoning is that Clause 5 of the deed, by mortgaging all his rights in the property, has mortgaged his rights as a trustee of the idol also, and as he "alone" was, as the result of his finding, the de facto trustee, the entire interest of the idol has been validly mortgaged under the document. Assuming that the Subordinate Judges interpretation of Clause 5 is right, to support his finding it is still necessary to show that at the time respondent No. 1 "alone" was the de facto manager and trustee of the idol entitled to act in emergency. On this point the learned judges of the High Court have come to the conclusion that in the circumstances of the case "Janki" Prasad neither purported to represent Sri Thakurji (the idol) "nor would he have been a proper person to represent Sri "Thakurji in any transaction." Their Lordships are in accord with this opinion. As they read the "will" of Lalta Bibi, though some powers are given to the trustees to act singly in para. 12, the document, as pointed out by the High Court, does not give to a single mutwalli any power to execute a deed of transfer - nor is such a power given to him by law. In the suit by the Secretary of State for India (suit No. 95 of 1913) respondent No. 1 set up the title of the idol to the suit property. His view seems to have undergone a change as a result of that suit. In subsequent litigations, first somewhat vaguely, and then definitely, he pressed his familys claim to the property, though in fact during all that time he continued to be one of the trustees of the idol. He might have had some justification for doing so as a result of the decision in the rent suits, and of the order for the mutation of names in the municipal registers with respect to the property made on July 1, 1926, in favour of himself and his brother, Brij Mohan. On March 30, 1926, however, these two brought the suit No. 54 of 1926 to set aside the decree in suit No. 141 of 1919, in which it is said that on the death of Lalta Bibi, Mukandi Lal became the owner of the property and was in possession through his lifetime, and the plaintiffs are described as heirs of Mukandi Lal. The suit was dismissed as an attempted compromise fell through, and the suit property was brought to sale by the decree-holder in execution of his decree. It was then, and not till then, that the mortgage deed was executed and the money borrowed by the executants to save the property from sale; and, consistently with the claim which they had been urging, they stated in the deed that the property belonged to them. These facts, stated here in bare outline, and the evidence in the case, all of which have been examined by the learned judges, support their conclusion that at the time of the mortgage respondent No. 1 was not competent by himself alone to represent the idol, nor did he as a matter of fact purport to represent it. It is true that the final decree in the mortgage suit, No. 141 of 1919, was granted against the idol "through" respondent No. 1 alone, and that the decree and sale proclamation also mentioned his name only, but the suit was brought against all the three trustees, and the mere statements in the decree and proclamation do not amount to any valid declaration that respondent No. 1 was the sole trustee entitled to act on behalf of the idol. In this connexion attention may be drawn to the fact that though in September, 1927, Gopi Nath made an application in suit No. 85 of 1927 that he be exempted from the case, yet the High Court held that the property belonged to the idol and that the 1st respondent and Gopi Nath had validly been appointed trustees under the "will."

4. The position in 1926 with regard to the trustees was this: Lalta Bibi had under her "will" of 1907 appointed three trustees, respondent No. 1, Gopi Nath and Jugal Kishore, to manage the affairs of the idol. Of these, Jugal Kishore had died during the pendency of suit No. 141 of 1919, and Gopi Nath had "apparently ceased to act" - as mentioned by the High Court - though he remained a trustee. Thus, only respondent No. 1 continued to interest himself in the suit property in 1926. So far, their Lordships have been testing with reference to the evidence the correctness of the High Courts finding that he did not represent the trustees in the suit transaction and was acting only for himself. This finding, if correct, would show that he cannot by his execution of the document convey the property of the idol to the appellant.

5. Even if their Lordships accept the finding of the Subordinate Judge that respondent No. 1 was the de facto manager and trustee entitled as such to act in emergency, still in law the execution by him alone of the deed would be ineffective in conveying a valid claim to the suit property. In this connexion attention may be drawn to the following statement of the law from Lewin on Trusts, 14th ed., p. 196 : "In the case of "co-trustees the office is a joint one. Where the administration "of the trust is vested in co-trustees, they all form as it were "but one collective trustee, and therefore must execute the "duties of the office in their joint capacity. It is not "uncommon to hear one of several trustees spoken of as the "acting trustee, but the Court knows no such distinction; all "who accept the office are in the eyes of the law acting "trustees. If any one refuse or be incapable to join, it is not "competent for the others to proceed without him, but the "administration of the trust must in that case devolve upon "the Court. However, the act of one trustee done with the "sanction and approval of a co-trustee may be regarded as "the act of both. But such sanction or approval must be "strictly proved." Their Lordships consider this to be a correct statement of the law applicable in England, and that the same doctrine applies in India also see Abdul Gofur Mandal v. Umakanta Pandit 19 C.W.N. 260. For these reasons, the mortgage deed is not binding on the trust estate.

6. Their Lordships will now proceed to consider whether the appellant is entitled to be subrogated to the rights of the decree-holder in suit No. 141 of 1919, on the broad ground that the debt binding on the suit property having been paid off with his money, it became liable for the said amount. The doctrine of subrogation is in essence a simple matter. It means the substitution of one creditor for another. The law of subrogation in India is contained in Section 92 of the Transfer of Property Act. This section is new, and was inserted by Section 47 of Act XX. of 1929. By Section 39 of the amending Act, Sections 74 and 75 of the Transfer of Property Act, which contained only in an imperfect form the law of subrogation, were repealed. The new section deals with the rights of subrogation of two different classes of persons. The first paragraph, which deals with the rights of persons who have an existing interest in the property, states that:

7. "Any of the persons referred to in Section 91 (other than the "mortgagor) and any co-mortgagor shall, on. redeeming "property subject to the mortgage, have, so far as regards "redemption, foreclosure or sale of such property, the same "rights as the mortgagee whose mortgage he redeems may "have against the mortgagor or any other mortgagee." The third paragraph, with reference to which the case of the appellant was argued, deals with the rights of strangers who acquire an interest in the property. It runs as follows : "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 persons shall be so subrogated." The right mentioned above, referred to usually as "conventional "or contractual" subrogation, is founded on the principle of an agreement between a borrower and a lender that the lender shall be subrogated to the rights of the original creditor.

8. As Section 92 was not in force at the time of the suit mortgage, namely, December, 1926, the question was raised whether or not it has retrospective operation. On this point the opinions of the High Courts in India are divided. The case was also argued with reference to the law as it stood before the amendment. Their Lordships, however, do not think it is necessary to decide the question whether the section has, or has not, retrospective effect, as in their opinion the appellant is not entitled to the right of subrogation whether the case is governed by Section 92 or by the previous law. Under the statute, the question to be decided is whether on the findings arrived at by the High Court, which their Lordships endorse, the appellants case for subrogation would fall within the language of para. 3 of Section 92. The facts have established that the appellant has loaned money to respondent No. 1, and with the money so obtained the decree debt in A.S. 41 of 1921 was discharged by him and in consequence the idol was benefited, the trust estate having been freed from the burden imposed on it by the decree. But the appellant, to succeed, must prove that the money was advanced by him to the mortgagor. In the present case that has not been proved, as the money was advanced, not to the idol through its trustees, but to respondent No. 1 personally, who could not by himself represent the idol; nor is any registered instrument executed by both trustees forthcoming; the only document is that signed by respondent No. 1 alone. For the same reason, the agreement in Clause 8 of the deed also does not advance the case of the appellant as, at best, it is only an agreement by a single trustee. The defect which has proved fatal to the appellants claim under the document has proved equally fatal to his claim based on the statute also.

10. Turning now to the law as it was in 1926, Sir Thomas Strangman rested his case on the equitable doctrine of subrogation enunciated in Butler v. Rice [1910] 2 Ch. 277. In that case a husband obtained money on the property of his wife to pay off a mortgage debt binding on her property without her knowledge and authority, and relief was given to the creditor, a mere stranger who had no interest in the property, on the principle of subrogation. This decision would seem to support the view that a mere volunteer who discharges a mortgage debt binding on the property, as in the present case, could claim to be subrogated to the rights of the creditor on the mortgaged property for the amount paid by him. Whatever force such a doctrine may possess in England, the Board has negatived such a plea as regards India - see Ram Tuhul Singh v. Biseswar Lull Sahoo (1874) L.R. 2 I.A. 131. Even before the amendment of the Act, to support a claim to subrogation by one who has lent money to a mortgagor to redeem a mortgage, an agreement express or implied that the lender shall be subrogated to the rights of the creditor was necessary to be proved. In this connexion reference may be made to the Boards decision in Raja Janaki Nath Roy v. Raja Pramatha Malta (1939) L.R. 67 I.A. 82, where in considering what was the law as to "partial subrogation" before the Act was amended by Act XX. of 1929, Lord Romer, who delivered the judgment of the Board, observed as follows (3) : "Taking 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 : 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." The rest of the; observations are not relevant as they deal with the immediate question which the Board was then considering. It is clear from the above statement of the previous state of the law that the appellant being a mere stranger - neither being a surety of the debt, not being otherwise interested in the property - has, to succeed on the equitable doctrine of subrogation, to prove that there was an agreement between him and the debtor or creditor that he should receive and hold an assignment of the debt as security. As he has not been able to prove such an agreement his appeal fails even under the previous state of the law. After the amendment of the Act the right of subrogation can be claimed by the lender only if the mortgagor has by a registered instrument agreed that he shall be so subrogated. The right can no longer be claimed or granted as before, on very slight evidence, or what may be described as the semblance of an agreement. In the present case, in their Lordships view, there is no such evidence or semblance of an agreement between the appellant and the idol, or the creditor The mere fact that money borrowed from him was used for paying off a previous charge does not entitle the appellant to the benefit of the discharged security.

11. Lastly, it was argued forcibly that if the appellant fails in the present suit the idol gets the property freed from liability with the aid of the appellants money, and that therefore relief should be given to him on general principles of justice and equity. As observed, however, by their Lordships in Ram Tuhul Singh v. Biseswar Lall Sahoo L.R. 21 I.A. 143 : "...It "is not in every case in which a man has benefited by the "money of another, that an obligation to repay that money "arises. The question is not to be determined by nice considerations of what may be fair or proper according to the "highest morality. To support such a suit there must be an "obligation, express or implied, to repay. It is well settled "that there is no such obligation in the case of a voluntary "payment by A. of B.s debt..." After giving full weight to every argument urged by counsel on behalf of the appellant, their Lordships are unable to hold that the decision of the learned judges of the High Court is wrong. They will humbly advise His Majesty that this appeal should be dismissed, with the costs of the contesting respondent.