Amberson Marten, Kt., C.J.
1. On the findings of the lower appellate Court we have to determine this appeal on the basis that the plaintiff was the true owner of the property, and that Taniram was merely a trustee for him.
2. It is contended that under Section 41 of the Transfer of Property Act the plaintiff is prevented from avoiding the auction sale held in pursuance of a decree of 1918 against Taniram, which sale was confirmed on April 22, 1920, and a sale certificate granted to the defendant on January 29, 1921. Meanwhile on April 30, 1920, the plaintiff with the consent of Taniram had effected an alteration in the Record of Eights by getting the plaintiff's name inserted in place of Taniram.
3. But as pointed out in Mulla's Civil Procedure Code, 8th Edn., at p. 720, under Order XXI, Rule 94, 'What passes to a purchaser at a Court sale is the 'right, title and interest, of the judgment-debtor, whatever that interest may be.' Further, the transfer is not made by the judgment-debtor himself, but by the operation of the Court's order. That being so, it seems to us that Section 41 of the Transfer of Property Act only applies to a voluntary transfer and does not apply to a transfer made in invitum by an order of the Court under which the judgment-debtor himself does not join in the actual transfer. The words of the section are: 'Where a person is the ostensible owner of such property, and transfers the same for consideration.' Those words prima facie at any rate contemplate that it is the ostensible owner who is the transferor and not somebody else. [His Lordship then dealt with other facts.]
4. It follows, therefore, that, in my opinion, the appeal ought to be dismissed with costs.
5. I agree and wish to add a few words. It must be taken that Taniram, the judgment-debtor, had no interest in the property whatever. This being so, the defendant, the present appellant, who purchased his interest at the auction sale, acquired no interest in the property, unless he could take advantage of Section 41 of the Transfer of Property Act, or the principle of estoppel. In regard to Section 41 I am of opinion that it does not apply to an involuntary transfer of the present nature, and as regards the principle of estoppel, the case of the defendant in the Courts below was not based on that principle. The evidence in the case is not sufficient to warrant a finding on that point, and that question would involve a consideration not only of law but also of facts which have not been put forward at all. I think that at this stage it is not desirable that the whole case should be completely changed and fresh evidence gone into.
6. I, therefore, agree that the appeal should be dismissed with costs.