1. This is a plaintiff's appeal against a decree and order of the Second Additional Subordinate Judge of Jaunpur, modifying the decision of the trial Court. The circumstances of the case are as follows: One Waris Ali owned four houses which are called P, Q, R and S. In 1917 he executed a deed of mortgage purporting to transfer tire houses P and Q to the present plaintiff-appellant. In 1922 he mortgaged all four houses to Noor Mohammad, the defendant-respondent. In the same year the plaintiff in executing a simple money decree against Waris Ali put all these four houses to sale and purchased them at auction. During the course of the execution proceedings an objection was made by Mt. Batul Bibi to the effect that she owned half the houses, and this objection was allowed. After his auction purchase the plaintiff-appellant applied for partition, and as a result of that partition between him and Mt. Batul Bibi the two houses P and Q were allotted to Mt. Batul Bibi, and R and S to the plaintiff-appellant. In execution of a decree for costs of this partition suit the plaintiff-appellant also purchased the house P and Q. Noor Mohammad next sued for sale on the basis of his mortgage of 1922, and the plaintiff-appellant was joined as a party and claimed priority for his mortgage of 1917, which claim was allowed. The plaintiff-appellant has now sued to put to sale the houses R and S on the basis of his mortgage of 1917. His case was that although the property mortgaged to him in 1917 consisted of the houses P and Q, yet as his mortgagor through him had exchanged this property for the houses R and S the security of the latter two houses was substituted, and the result is that he can claim the whole of the houses R and S as his security and can bring them to sale. The trial Court decreed his suit, but the lower appellate Court has held that as what was mortgaged in 1917 was only half the houses P and Q therefore the substituted security only passed to half the houses R and S and has given a decree accordingly.
2. It has been argued in second appeal that this decision was wrong. If the houses P and Q had passed to the plaintiff appellant at partition there can be no doubt that owing to the operation of Section 43, T.P. Act, the whole of those houses could have been brought to sale by the mortgagee, and it is argued from this that as the doctrine of substituted security has been applied,, that is to say, that as the security of houses P and Q, which was given by the mortgagor to the mortgagee in 1917, has been transferred as result of the partition to the houses R and S, the whole of these houses is liable to be sold. This argument was considered in the lower appellate Court. The learned additional Subordinate Judge has remarked that counsel for the appellant conceded:
In plain words that the plaintiff could claim his money back by the sale of one-half interest only in houses B and S,
and it has been argued that this admission by the plaintiff's counsel must act as a bar to: pursuing the argument in this Court. In the case of Nand Kishore Rai v. Ganesh Prasad Rai : AIR1929All446 , it was held that an admission by counsel, even if it be an admission of law, must be held to be binding in second appeal. There are however two reasons why I should not hold myself bound by this so-called admission. In the first place it is not clear that it was recorded and acted on as an admission, and in the second; place the lower appellate Court has considered the question on its merits land has not held itself to be bound; by that admission. On the merits how ever 1 am convinced that the decision of the lower appellate Court is correct. Under Section 43, T.P. Act:
Whore a person erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
3. Waris Ali did erroneously represent that he was authorised to transfer the whole of the houses P and Q and under Section 8 of the Act the interest which I the transferor was then capable of possessing in the property, viz., one-half, as was subsequently proved in the proceeding which terminated in the partition. If the mortgagor had subsequently acquired the whole of those houses it would have been at the option of the mortgagee to proceed against the whole of these houses, viz., the houses P and Q. I can find no authority however for the proposition that the security could be transferred to any other property, or to the transferor's interest in any other property. I have been referred to the decisions in the cases of Mohammad Afzel Khan v. Abdul Rahman A.I.R. 1932 Privy Council 235, and Debi Prasad v. Jai Karan Singh (1902) 24 All. 479, but those cases related to transfers of shares in (undefined undivided property where there has been a subsequent partition. The plaintiff-appellant would have been on entirely different ground if he could show, that the property mortgaged to him in 1917 was a part of an undivided share in common property. The houses P and Q however were separate, and distinct from R and S : and as the property originally mortgaged was the houses P and Q. I cannot hold that the interest in the houses R and S which the mortgagor may be said to have acquired through his mortgagee was in any sense an interest in the houses P and Q. For these seasons, I am of opinion that there is no force in the appeal, and it is dismissed with costs.
4. Mr. Mehrotra has applied for leave to appeal under the Letters Patent, but as the law on the point seems to me to be perfectly clear I have refused permission.