1. The facts of this case, as found by the Court below, have not been controverted before us, and therefore we take them to be correct. It appears that so far back as on 25th October 1883 the Raja of Basti made a simple mortgage of the property in suit for a sum of Rs. 1,999 in favour of four persons Binda, Bisheshar, Ram Tahal and Ganga. The pedigree given below shows how these mortgagees were related to one another.
Ram Dayal Kalwar
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Sahai Kuber Prasad Sheo Lal Jaggu Pal
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Bafati Jagannath Ganga ___|_____ |
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Bisheshar Binda |
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Ram Tahal Ram Lal Jagmohan
| | plaintiff.
2. In course of time several of the members of the family died out, and there was a partition, with the result that at the date of the suit, that was instituted in 1910, for recovery of the money due on the mortgage, the family was no longer joint, and the mortgagee rights were vested in equal shares in Ram Tahal, Jagmohan, Ram Lal and Mt. Maharani, wife of Binda Kalwar. Mt. Maharani is now dead. The suit just mentioned, being suit No. 585 of 1910, was instituted by Ram Tahal in the Court of the Subordinate Judge of Gorakhpur, and the co-mortgagees of Ram Tahal, namely Jagmohan, Ram Lal and Maharani were impleaded as pro forma defendants, on the allegation that they did not join in the suit: see pp. 68 and 69 of the printed record. The pro forma defendants did not dispute Ram Tahal's claim to realize the money for himself and his co-mortgagees. None of them applied to be made plaintiffs. A preliminary decree was accordingly made in favour of Ram Tahal. Ram Tahal applied for the decree being made final. Mt. Maharani made an application that she might be made a co-plaintiff. This application was dismissed by the learned Subordinate Judge on the ground that it was too late. The final decree was prepared and the property was brought to sale. Sam Tahal himself purchased the property on 21st July 1913. There ended the first stage of the history of the case. By the suit, out of which this appeal has arisen, Jagmohan Kalwar and Bhagwan Das, son of Ram Lal, claimed two-thirds of the property purchased by Ram Tahal in execution of the decree on the ground that they owned two-thirds share, because they had two-thirds share in the mortgage money. Jagmohan died pending the suit, and his legal representatives have been brought on the record.
3. Various defences were set up. One of these that found favour with the learned Subordinate Judge was that the plaintiffs could get only a share in the money that was decreed in favour of Ram Tahal, but that they had no right to the property. The suit was accordingly dismissed, and the plaintiffs have appealed.
4. The short point to be decided is whether the plaintiffs have any right to share in the property purchased by Ram Tahal, They, through their counsel, have offered to pay a fair share of the costs that Ram Tahal may have incurred in instituting the suit and executing the decree.
5. The learned Subordinate Judge quoted several cases that were cited before him and was of opinion that none of these cases afforded him any sure guide. He, therefore, thought that he was free to decide the case for himself. He held that as the purchase was made not only with the mortgage money but also with the costs incurred by Ram Tahal out of his own pocket, the plaintiffs had no right to share in the property. To decide this case it has to be taken for granted that the costs of the suit and the execution were met by Ram Tahal alone. It is also a fact that the purchase was made in full satisfaction of the decree then outstanding in favour of Ram Tahal.
6. On behalf of the appellants the learned counsel has cited many cases; in our opinion they all go to support his contention. We need not notice all the oases, but shall notice only some of them. We shall take the cases in order of their dates of decision.
7. The first case is Ramji Das v. Mohan Lal  25 I.C. 735. In this case, which was decided by Sundar Lal, J., there were three joint mortgagees, and one of these purchased the equity of redemption. Out of the remaining two only one of them brought a suit for recovery of the two-thirds share of the mortgage money. The entire mortgage money was not claimed on the ground that the mortgagee owning a one-third share had become the mortgagor by purchasing the latter's rights. The plaintiff (one of the co-mortgagees) got a decree and having put the decree into execution purchased the property himself. Thereupon the remaining co-mortgagees brought a suit to recover a half share in the property so purchased by the decree-holder. The learned Judge affirmed the decree by which the suit had been decreed and observed as follows:
The property in suit was purchased for the mortgage-money in which both had equal title and share and were entitled to equal share in the property so purchased.
8. In coming to this conclusion the learned Judge professed to apply a Full Bench case of this Court, namely Kesri v. Ganga Sahai  33 All. 563.
9. The Full Bench case of Kesri v. Ganga Sahai  33 All. 563 was a case in which a joint decree had been obtained by several decree-holders and only one of them took out execution of the decree. He alone purchased the property, and when the co-decree-holders sought to recover their proportionate share in the property, it was held that they could. It will be noticed that the case before Sundar Lal, J., was not a case of co-decree-holders but was a case very similar to the case before us. In that case also, as in the present case, one of several co-mortgagees brought the suit. The Full Bench case of Kesri v. Ganga Sahai  33 All. 563 was carried in appeal before their Lordships of the Privy Council and the decision was affirmed: see Ganga Sahai v. Kesri A.I.R. 1915 P.C. 81.
10. In Khub Chand v. Todarmal A.I.R. 1924 All. 813 Sulaiman, J., held that where one of several decree-holders had taken out execution and had purchased a property in execution, he held it for the benefit of all the decree-holders. This was in accordance with the Privy Council decision in Ganga Sahai v. Kesri A.I.R. 1915 P.C. 81. Later on, the same learned Judge sitting with Ryves, J., in Makhan Lal v. Sohan Lal : AIR1925All331 decided in the peculiar circumstances of the case, that in that particular case the plaintiff Makhan Lal was not entitled to share in the property purchased. That was, however, a special case. Makhan Lal, from the very beginning, was opposing the defendant's suit and was putting obstacles to its success, It was held that in the circumstances it could not be said that the purchase had been made for the benefit of Makhan Lal as well. The facts of the case being entirely peculiar, that case can have no bearing on the one before us.
11. In the ease of Bandhu Ram v. Chinta Man Singh A.I.R. 1922 P.C. 215 the question arose whether a certain property had been purchased by the defendant out of a joint fund, and whether, therefore, it was liable to be shared by the plaintiffs. Their Lordships of the Privy Council did not discuss the question but remarked that the title to the property depends on the title to the bond. Their Lordships said:
It is sufficient to say that the title to the land in dispute must in their Lordships' opinion, depend on the title to the bond given by Pyare Mander to Rajdhari on 17th August 1891. If that bond was the separate property of Rajdhari, then the land which he purchased in the suit brought by him to enforce the bond was also his separate property.... But if he held the bond on behalf of himself and his two brothers...then he could in the circumstances of the case have no better title to the land and respondent 1 is entitled to retain the decree granted by the High Court.
12. There is one more case, namely Jai Inder Bahadur Singh v. Sheo Inder Bahadur Singh A.I.R. 1924 Oudh 218. In this case it was held that where properties had been purchased with bonds belonging to a certain estate the persons who are entitled to share in the estate were also entitled to share in the property purchased in execution of the decrees obtained on the bonds.
13. These cases all tend to establish that where there is a fund belonging jointly to several persons and one of these persons makes a purchase of land with that fund, that purchase inures to the benefit of all the persons entitled to share in the fund. This is really the principle laid down in Section 88, Trusts Act, 1882, It runs as follows:
Where a trustee...or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage...he must hold for the benefit of such other parson the advantage so gained.
14. Illustration (d) to this section is as follows:
A, a partner, buys land in his own name with funds belonging to the partnership. A holds such land for the benefit of the partnership.
15. In this state of the law, the only possible answer to the question before us can be that the plaintiffs are entitled to share in the property subject, no doubt, to their paying to Ram Tahal's successor a proportionate share of the costs incurred by him.
16. On behalf of the respondents the learned counsel has drawn our attention to the cases, namely Ganeshi Lal v. Jagannath  32 I.C. 171 and Makhan Lal v. Sohan Lal : AIR1925All331 , already discussed. The case in Ganeshi Lal v. Jagannath  32 I.C. 171 no doubt supports the respondents' case fully. But it does not appear that the attention of their Lordships was directed towards the Privy Council case decided a few months earlier, namely Ganga Sahai v. Kesri A.I.R. 1915 P.C. 81. Without referring to any authority and without considering Section 88, Trusts Act, two learned Judges of this Court came to the conclusion that in the circumstances similar to the present ones the plaintiff was entitled only to a share in the money and could have no right to share in the property which had been acquired with the money. In view of the numerous rulings in which the contrary view has been entertained we do not think that this case lays down the correct view of the law.
17. The learned counsel for the respondents also referred us to the case of Anrup Misr v. Ram Harakh : AIR1929All953 . That case is obviously distinguishable and does not call for any remark.
18. The result is that this appeal must succeed, and the plaintiffs' right to share in the property must be affirmed subject no doubt to their contributing towards the costs incurred by Ram Tahal. Several other points were raised in the case and all these points have not been decided by the lower Court. These points will now have to be decided. We accordingly allow the appeal, set aside the decree of the Court below and remand the suit under Order 41, Rule 23, Civil P.C., and direct the Court below to re-enter the suit on its original number in the register and proceed to decide it in accordance with law. Costs here and hithertofore will abide the result.