1. The plaintiff brought a suit to redeem a mortgage under an unregistered deed passed by plaintiff's father in favour of Radhoji on December 5, 1873. In a partition in the family of the mortgage the property was allotted to the share of Radhoji's son Dhondi. Defendant No. 4 is the son of Govind, one of the sons of Dhondi, and defendants Nos. 2 and 3 are the widows of the other two sons of Dhondi and defendant No. 5 is the step-mother of defendant No. 4. Defendant No. 4 sold the land by a registered deed to defendant No. 14 on November 4, 1921, for Rs. 1,000. In the Record of Rights of the year 1907-1908, Govinda Dhondi was entered as the vahivatdar (vidya-man khatedar) of the land and Khandu bin Pandu was entered as the holder khatedar. In column No. 11, Govinda is said to have been in vahivat for forty years by right of ownership but it could not bo said how the Khata was changed.
2. Both the lower Courts held that the unregistered mortgage was proved and that defendant No. 4 had the rights of a mortgagee, but both the Courts decided in favour of defendant No. 14 on the ground that the sale deed in favour of defendant No. 14 by defendant No. 4 was a registered document, and was entitled to priority over the unregistered mortgage deed passed by the plaintiffs father under Section 50 of the Indian Registration Act, and reliance was placed on the observations in Makandas Kalidas v. Shankardas Haribhai (1875) 12 B.H.C. 241 that (p. 244) 'the words of the section are wide enough to include documents executed by different grantors as well as those by the same grantor.'
3. The words of Section 50 of the Indian Registration Act are no doubt very wide. The documents need not be of the same nature, and need not be executed by the same person. The case of Mohandas Kalidas v. Shanhardas Haribhai was distinguished in the Full Bench ruling in Sobhagchand Gulabchand v. Bhaichand I.L.R. (1882) Bom 193 f.b. on the ground that an auction sale only conveyed the right, title and interest of the judgment-debtor, and there was a radical difference between an auction- purchase and a regular sale-deed. Auction-purchase is now included ins. 17, Clause (2), of the Indian Registration Act, and there for, would fall under Clause (2) of Section 50. In the case of Gungaram Ghose Sirdar v. Kalipodo Ghoie I.L.R. (1885) Cal. 661 there was competition between an unregistered mortgage-deed and a sale-deed from the same person who was entitled to the property. In the present case, the mortgage deed is pass d by a person who is held to be the owner of the property, whereas the sale deed is passed by defendant No. 4, who had only the rights of a mortgage. The titles under which the competing deeds were passed are quite different, and in order that there should be competition between two documents under Section 50, the title must be the same. There need not be identity of the executants of the competing documents but there must be identity of title. See Chunilal v. Ramchandra I.L.R. (1896) Bom. 213 where it was held (p. 215): 'The title of Vithoba descended upon his eons, and it is the same title which is conveyed by both documents. That is sufficient-Mahan-das Kalidas v. Shankardas Haribhai'. Section 50 of the Indian Registration Act would apply where the two documents are really antagonistic and not where effect can be given to each without infringement of the other : Sobhagohand Gulahchand v. Bhaichand I.L.R. (1882) Bom. 193 f.b. In the present case, defendant No. 4 could only convey what he was entitled to, that Is, the title lie got as a mortgage under the unregistered mortgage-deed, and defendant No. 14 could not get a higher title than that of his vendor. Reliance is placed on behalf of the respondents on the entry in the Record of Rights, and it is urged that the entry is evidence of the title of defendant No. 4. According to the ruling in Nirman Singh, v. Lal Rudra Pariab : (1926)28BOMLR1409 proceedings for mutation of names are not judicial proceedings in which the title to, and the proprietary rights in, itmmoveable property are determined, but are more in the nature of fiscal inquiries instituted in the interest of the State, and the entry in the Record of Rights by itself would not vest the property in defendant No. 4. We think, therefore, that the sale-deed passed by defendant No. 4, who had only a mortgage's interest, could not prevail over an unregistered mortgage passed by the original owner, the plaintiff's father, and could not affect the plaintiff's right of redemption.
4. It is, however, urged on behalf of the respondent that defendant No. 14 purchased the property from defendant No. 4 who was for all purposes the ostensible owner of the property. The learned Subordinate Judge in his judgment says :-
Defendant No. 11 swears that ho inquired about defendant No. 4's title from Record of Rights and from Bakula, Dhondupant Kulkarni and others and was satisfied regarding his ownership. There appears to be no reason to v. doubt this statement. I am thus satisfied that defendant No. 14 is a bona fide purchaser foe value and that ho had no notice of the suit mortgage, though he inquired.
5. The point, however, under Section 41 of the Transfer of Property Act, was not taken specifically either before the Subordinate Judge or the lower appellate Court, but we think that there are adequate grounds in this case to consider the questions whether defendant No. 14 was not a bona fide purchaser for value without notice, whether ha did not make proper inquiry, and whether defendant No. 4 was not the ostensible owner of this property with the express or implied consent of the plaintiff within the meaning of Section 41 of the Transfer of Property Act, We think, therefore, that this aspect of the case ought to be investigated by the lower Court.
6. We would, therefore, send down the following issues for determination by the lower appellate Court:-
(1) Whether defendant No. 14 is a bono fide purchaser for value and made reasonable inquiry and
(2) Whether defendant No. 4 was the ostensible owner of this property with the consent, express or implied, of the plaintiff?
7. Findings on the issues to be returned within two months.