Stanley Batchelor, Kt., Acting C.J.
1. The facts in this second appeal are somewhat complicated, but we propose to refer only to such of them as are necessary for the decision of the point with which we are now concerned. The original owner of this property was the 1st defendant Devare. In 1883, during the minority of Devare, his mother purported to sell it to the Bhojes, from whom Bavchi, in 1890, received it in exchange for another parcel of land. In 1891, by a simple mortgage Bavchi mortgaged the property to the present plaintiff, who is the appellant before us. In 1898, a suit was brought by Devare against his mother, Bavchi and the Bhojes, in order to set aside the sale by Devare's mother to the Bhojes. That suit was successful, and the result was that the sale to the Bhojes was set aside. In 1901, the plaintiff obtained a decree on his mortgage against Bavchi and the others. The property was put to sale and was purchased by the plaintiff with permission. But when the plaintiff proceeded to endeavour to get possession, he was resisted by Devare. Hence the present suit to recover possession.
2. The only question now before us is whether, in spite of the result of Devare's suit of 1898, it is open to the plaintiff now to show, if he can show, that the alienation by Devare's mother to the Bhojes was good in law, as, for instance, it would be, if the plaintiff could succeed in proving that the sale was for recognised necessity. It is contended against the plaintiff that it is not open to him to lead evidence in this sense for that he is bound by the decree against his mortgagor in 1898 by virtue of the provisions of Section 11 of the Civil Procedure Code. It is admitted that all the provisions of that section imposing the application of the doctrine of res judicata are satisfied against the plaintiff, except the provision which requires that the former suit must have been either between the same parties, or between patties under whom they or any of them claim. Admittedly the suit of 1898 was not between the same parties. The question.. therefore, is whether the present plaintiff can properly be said to 'be claiming under his mortgagor Bavchi.
3. The argument against' him is that since he became the auction purchaser in 1894, the title to the whole estate rests in him without reference to any original distinction as to his position as mortgagee; that since, at the time of this suit, he was the owner of the property, he in this suit must be held to be claiming under the former owner, namely his mortgagor Bavchi. The answer, however, to this argument seems to us to be afforded by a rather closer consideration of the principle upon which Section 11 is based. As we understand it, that principle is that there must be between the parties in the earlier and the later suit some privity. In the particular case before us that privity would be privity of estate : in other words the principle comes into operation only if in the earlier litigation the estate in controversy was efficiently represented.
4. That being so, we must consider how far this estate was efficiently represented by the mortgagor Bavchi at the time of Devare's suit in 1898 At that time the present plaintiff was a mere mortgagee, an J Mr. Justice Mahmood's decision in Sita Ram v. Amir Begam I.L.R. (1886) All. 324 is authority for the view that as a mere mortgagee the plaintiff would not be bound by the earlier decision, because his title arose prior to the suit in which the decree against his mortgagor was obtained, and the mortgagor possessing only the equity of redemption had not in him any such estate as would enable him sufficiently to represent the mortgagee in the suit instituted after the mortgage. So in Bonomalee Nag v. Koylash Chunder Dey I.L.R. (1878) Cal. 692 it was held that a mortgagee not in possession, suing for a declaration that a right of way did not exist, was not bound by a decision in a suit between the mortgagor and a third party of which he had no knowledge. The ground of the decision was that the mortgagor did not represent the entire estate. It is true that the learned Judges in this latter case reached their conclusion with some hesitation. But Mr. Justice Mahmood in his fully reasoned judgment in Sita Ram v. Amir Begam succeeds, we think, in showing that the decision was based upon sound principle. If that is so, and if, as Mr. Justice Mahmood said, adopting the words of the American text-writer, Bigelow, the ground of the privity is property and not the personal relation, then we do not understand how the present plaintiff is in any worse position merely because in 1904 he altered his original position of mortgagee to that of auction-purchaser. For, notwithstanding that alteration, the question would still be, not what was the plaintiff's position in 1904, but whether in 1898 the mortgagor possessed sufficient estate to represent and bind his mortgagee. Now at that time the estate vested in the mortgagee and it seems to us difficult to hold that that estate was sufficiently represented in the absence of the party in whom in law it vested. It might no doubt be a different thing if the plaintiff's mortgage had been taken after the suit of 1898. But here the fact is that the plaintiff's title arose prior to the litigation in which the mortgagor was defeated. There are apparently no other decisions exactly in point, but Joy Chandra Banerjee v. Sreenath Chatterjee I.L.R. (1904) Cal. 357 and Abdulali v. Miakhan : (1911)13BOMLR268 268 maybe referred to as cases of a simpler type where the decisions lend support to the view which we are taking. Those were cases, one of a sale and the other of a gift, and it was held that the alienee was not estopped by a judgment in a suit against the alienor, the suit having been commenced after the alienation. And the ground upon which these judgments were based is that stated by Mr. Justice Romer (as he then was) in Mercantile Investment and General Trust Company v. River Plate Trust, Loan, and Agency Company  1 Ch. 578, that is to say, 'a prior purchaser of land cannot be estopped as being privy in estate by a judgment obtained in an action against the vendor commenced after the purchase.'
5. These decisions go so far at least as to show that some restriction must be placed on the apparent ambit of the words ' claiming under ' used in Section 11. In those cases no doubt the estate in litigation was wholly unrepresented in the earlier suits, while here it must be admitted that the estate was in the suit of 1898 partially represented. The consequence, how. ever, seems to us to be the same. For in either class of cases you have the absence of the legal requirement that the estate shall in the former litigation have been efficiently represented.
6. On these grounds we are of opinion that the question argued must be decided in favour of the plaintiff, that the lower appellate Court's decree must be set aside, and the appeal must be remanded for decision on the merits. Costs will be costs in the appeal. As to the respondents Nos. 7 to 9, we have heard the learned pleader for the appellant, but we agree with the judgment of the lower appellate Court that no claim for Survey No. 13 can be made in this suit. This finding will be taken into account by the lower appellate Court when the final decree is passed. As against respondent No. 6, the suit is dismissed with costs, he having disclaimed all interest in the property.