Mul Chand and Others vs Gajadhar and Others

John Edge, Kt., C.J.—This is an action for possession. The plaintiffs Allege that they were ejected by the defendants. The defendants deny that the plaintiffs were ever in possession. There are no findings on this issue. The questions under appeal have been brought before us on different linRs. On the 21st December 1871, three of the defendants mortgaged the four groves in suit to Maulvi Hyder Husain. In 1872 the plaintiffs obtained a money-decree against Durga, and in August 1872, in execution of that decree, sold the groves in question, and at the sale purchased them, and also two mills. It has been found below that that decree had the same effect as if it had been against All the mortgagors. Of this sale Maulvi Hyder Husain had notice; in fact, he opposed the sale. At a later period Maulvi Hyder Husain, the mortgagee, sued the mortgagors on the mortgage, and obtained a decree on the mortgage, and under that decree brought the groves to sale in 1877, and purchased them himself. In May 1880, Maulvi Hyder Husain sold the groves to two of the defendants. It is quite clear that the plaintiffs are entitled to a decree for possession so far as the two mills are concerned. The title to them has not been disputed before us. What we have to consider is what is the position of the parties with regard to the property which was mortgaged on the 21st December 1871. The plaintiffs were not made parties to the action which resulted in the decree under which Maulvi Hyder Husain sold the property in 1877.

A great number of cases have been cited to us in the argument in this case.

I think there can be no doubt that notwithstanding the sale of 1872, what was sold under the decree of 1877 was the right, title and interest of the mortgagors as they existed at the date of the mortgage of the 21st December 1871, with which would go the rights and interests of the mortgagee. I think this proposition is established by the following authorities: Abdulla Saiba v. Abdulla ILR 1871 5 Bom 8 and Mohan Manor v. Togu Uka ILR 10 Bom 224 The same principle is enunciated by Mr. Justice Turner in the case of Khub Chand v. Kalian Das ILR All 245. That, in my judgment, is subject to this, that although at a sale under a decree for sale by a mortgagee, as in this case, the right, title and interest of the mortgagor which is sold is his right, title and interest at the date of the mortgage, and any right, title, and interest he may have acquired between the date of mortgage and of the sale, still any puisne incumbrancer or purchaser from the mortgagor prior to the date of the mortgagee''s decree who was not a party to the action in which the mortgagee''s decree was obtained, would have the right to redeem the property which the mortgagor would have had had it not been for the decree. I am aware that this view is at variance with the decisions of this Court in the following cases: Khub Chand v. Kalian Das ILR 1 All 240 ; Ali Husain v. Dhirja ILR 4 All 518; Sita Bam v. Amir Begam ILR 8 All 324. With regard to the latter case my brother Mahmood followed the ruling of Mr. Jusice Turner in Khub Chand v. Kalian Das ILR 1 All 240. My brother Mahmood expressed his doubts in Bhup Singh v. Gulab Rai, Weekly Notes, 1886, p. 70, as to the correctness of the rule laid down by Mr. Justice Turner. My view in regard to the conflict of authority when it is considered is that it is safer for us to follow the; principle which my brothers Straight and Tyrrell laid down in the case of Muhammad Sami-ud-din v. Man Singh ILR 9 All 125 particularly as that principle has been recognised and acted on by the High Court of Bombay, and is consistent, in my view, with the true principles of equity. It is also the principle which has been recognised in the Transfer of Property Act. Mr. Amir-ud-din contended for the respondents that nothing passed at the sale in 1877, and for that proposition he relied on the case of Bamanath Dass v. Boloram Phookun ILR 7 Cal 677 and the case of Naran Purshotam v. Dolatram Virchand ILR 6 Bom 538. The case in ILR 7 Cal 677 apparently assumed that what could be sold was the mortgagor''s right at the date of the sale. The case in ILR 6 Bom 538 does not appear to me to be in support of Mr. Amir-ud-din''s contention. I am of opinion that this action must fail in so far as it claims possession of the four groves, and that it must succeed so far as the possession of the two mills are claimed. We make a decree that the plaintiffs may redeem if they commence proper proceedings to ascertain the amount within six months. The appellants will succeed as to the four groves and the Rs. 20 damages for the mango trees and will fail as to their claim for the two mills. Under these circumstances I think the appeal should be Allowed in part and dismissed in part without costs.

Brodhurst, J.

I concur.