1. Second Appeals Nos. 529 and 852 of 1921 are connected, and may be disposed of in one judgment. The point raised in these appeals is a very nice one and has been argued on both sides with much ability. The property in suit originally belonged to Muhammad Ishaq and others who mortgaged it to Muhammad Ghaus Khan usufructuarily in return for a loan of Rs. 15,600. On the 28th of July 1886 Muhammad Ghaus Khan made a sub-mortgage of his mortgagee right in favour of Sukhdeo Prasad for Rs. 8,000 and on the 29th of August 1886 he executed a deed of further charge in favour of Sukhdeo Prasad for Rs. 400. In 1908 some of the heirs of Muhammad Ghaus Khan sold their shares, which corresponded to 218 sehams out of 288 sehams of the mortgagee rights, for Rs. 11,808 to Ram Gopal. On the nth of March 1913 Ram Gopal sold these rights to Dakhan Singh and Ram Kishun Das in equal shares. On the 23rd of September 1914 Ram Kishan Das sold his half to Lakhan Singh. On the 13th of July 1916 the remaining heirs of Muhammad Ghaus Khan sold the residue of these shares to Dakhan Singh who thus became entitled to the whole of the mortgagee rights. In 1916 Bankey Lal, one of the original mortgagors, deposited Rs. 15,600 in Court under the provisions of Section 83, Transfer of Property Act. This sum was claimed by both Sukhdeo Prasad and Lakhan Singh. On the 20th May 1916 the Court ordered redemption in Bankey Lal's favour and directed Sukhdeo Prasad and Lakhan Singh to bring a separate suit to determine their rights in the money. Consequently, Dakhan Singh filed a suit against Sukhdeo Prasad's heirs, he having died, claiming that he was entitled to the whole of this Rs. 15,600, and in that suit he impleaded Ram Gopal and Ram Kishan Das. Ultimately, on appeal, the High Court held on the 15th of July 1919 that the heirs of. Sukhdeo Prasad were entitled to Rs. 8,000 plus Rs. 2,020 on the document of the 29th of August 1886 and that Lakhan Singh was entitled to the remainder. The suit out of which Second Appeal No. 529 arises was brought by the. heirs of Lakhan Singh against Ram Gopal and the suit out of Which Second Appeal No. 852 arises was brought by the heirs of Lakhan Singh against Ram Kishan Das, claiming to recover in equal shares Rs. 2,020 which they had to pay as damages, from their vendors. The pleadings on both sides are not very, easy to understand but both Courts have decreed the suit for somewhat different reasons. However, the matter has now been put before us very clearly and the point at issue is really a very simple one. It is this. Have the appellants contracted themselves out of their legal liabilities under Section 55 of the Transfer of Property Act? It has been found that Ram Gopal had no knowledge whatever of the document of the 29th of August 1886 creating a further charge of Rs. 400. It is also found that Ram Kishan Das and Lakhan Singh were also entirely ignorant of it; that they had searched the registers but not unnaturally had not gone back more that 12 years which was required by law as then settled' in this Province. The appellant relies on the covenants in the deed of sale of the nth of March 1913. In that deed Ram Gopal begins by setting out the history of the property and mentions two previous encumbrances. He makes no mention whatever of the encumbrances created on the. 29th of August 1886. He then goes on' to say that, 'I sell the aforesaid mortgagee rights purchased by me with all the rights and powers relating to redemption which I have and of which I am up to this time in possession and enjoyment without the partition and interference on the part of any one else.' He 'goes on to say that, having received the consideration money,' I have like myself made the vendees absolute owners of the haqqiat sold and put them in possession (thereof). Now after the execution of this sale-deed all the rights and powers in respect of the said zemindari haqqiat mortgaged, held as mortgagee, which I possess, have been transferred to the vendees.' He goes on to say: 'If in future any co-sharer or partner turns up ,and brings a claim for establishment of his right and if by any act the whole or part of the amount due to the vendees be destroyed or be not realized, the vendees are at liberty to recover that much amount due to them with damages and costs from the person and property, of every description belonging to me, the vendor.' This clearly means that if the vendees are unable to realize their mortgage-money owing to any act of the vend or, to that extent his person and property will be held liable to make good. He goes on to say: 'I shall not deviate from the same and my mortgagee rights are free from all sorts of debts and encumbrances up to this time. If any encumbrance created by me be found, I shall be charged with the offence of cheating'.
2. It is argued by Mr. Iqbal Ahmad that this covenant takes the vendor out of Section 55 of the Transfer of Property Act, because, he says, he is very careful to state that he is only selling what he bought and only guaranteeing that there are no encumbrances on that property created by him. It is not very easy to arrive with absolute certainty at the proper interpretation of the deed. My learned brother has some doubt as to whether the contention raised by Mr. Iqbal Ahmad has not been made good. It seems to me, however, that in trying to get at the intention of the parties when this deed was executed, we must not look at what happened subsequently and that nothing ex post facto must be taken into account in interpreting it. Now, it seems to me quite clear that neither the vendor nor the vendee had the slightest idea that there was any other prior encumbrance on this property. That being so, it seems to me that they were not contemplating any such contingency as subsequently occurred, and that Section 55 of the Transfer of Property Act was not in the contemplation of any body at that time. But if it was their intention to contract out of the Act, it seems to me that the words they have used have failed to effect that object. As was held in a case before the House of Lords, where such is the intention, the words used must be apt. Here it seems to me that, more particularly in the passage where the vendor states that his mortgagee rights were free from all sorts of debts and encumbrances, up to that time he was to the best of his knowledge guaranteeing that state of things to the vendees, but in any case it seems to me that even if this sentence does not bear that interpretation, the deed, read a whole, fails to convince us that the vendor has in fact contracted himself out of Section 55 of the Act. Quite apart from the deed, however, it seems to me that the case is really simple. The vendor intended to sell and the vendee intended to buy a thing different from what, as a matter of fact, was sold and bought; under Section 55(1)(g) it was the duty of the vendor to pay off all encumbrances unless the vendee had agreed to do so. As a matter of fact, an encumbrance which ought to have been paid off by the vendor under Section 55 of the Transfer of Property Act was paid off by the vendee and under the provisions of Section 69 of the Contract Act the vendor would be liable to re-pay. This view would seem to be in accordance with the decision of their Lordships of the Privy Council in the case of Nathu Khan v. Thakur Burtonath Singh 66 Ind. Cas. 107 : 20 A.L.J. 301 : 42 M.L.J. 444 : 35 C.L.J. 417 : 26 C.W.N. 514 : 24 Bom. L.R. 571 : 15 L.W. 635 : (1922) M.W.N. 323 : (1922) A.I.R. 832. We might also refer to the case of Manishanker v. Ramkrishna Nathabhai 6 Bom. L.R. 832 and to the case of Munir-un-nissa v. Akbar Khan 30 A. 172 : A.W.N. (1908) 71 : 3 M.L.T. 374 : 5 A.L.J. 243.
3. Although the facts are slightly different in Appeal No. 852, we do not think that there is really any difference in the point of law and, hi our opinion, therefore, both appeals must be dismissed with costs including in this Court fees on the higher scale.