1. This is a plaintiff's appeal and arises from a suit for redemption of a shop in Anupshahr, district Bulandshahr mortgaged by the brothers Shambhu Ram and Suraj Ram, by a deed dated 1st December 1884, to Inderman who is now represented by some of the defendants; the other defendants are transferees from his heirs. Suraj Ram one of the two mortgagors died issueless and his interest in the mortgaged property survived to Shambhu Ram. The last named died leaving three sons Bhura, Damodar and Krishna Ram. Bhura may be left out of account as he died leaving his two brothers as his only heirs. The equity of redemption thus became eventually vested in Damodar and Krishna Ram. They divided the family property held by them jointly and the equity of redemption was assigned to Damodar alone. Each of the two brothers executed a deed of relinquishment in favour of the other with respect to such properties as had been allotted to the share of one or the other.
2. The plaintiff alleges that Damodar disappeared some time before the year 1903. By a sale-deed dated 21st August 1903 Krishna Ram transferred the equity of redemption to the plaintiff-appellant claiming to be the owner thereof. The sale-deed recites that the shop, which was in possession of mortgagees, exclusively belonged to the executant by virtue of his ancestral right.
3. On 6th November 1924 the plaintiff-appellant brought the suit giving rise to this appeal claiming possession from the heirs of the mortgagee and their transferees by redemption of the mortgage under which they held. He based his title on the sale-deed dated 21st August 1903 above referred to. He alleged in the plaint that Krishna Ram was the owner of the mortgaged property at the time the sale-deed was executed. He could be the owner on that date only if Damodar, who admittedly had no wife or issue, had previously died.
4. The defence was that Damodar was alive when the sale-deed relied on by the plaintiff was executed, that a certain sum of money was due under a deed of further charge dated 26th January 1900 which must be paid in addition to the money due under the deed of mortgage dated 1st December 1884 and that the defendants are entitled to a certain sum representing costs of repairs of the mortgaged property effected by them.
5. The Court of first instance held that the plaintiff-appellant is not entitled to redeem because his transferor Krishna Ram has not been shown to be the owner of the property at the data of the sale-deed dated 21st August 1903, that the defendants were not entitled to any costs of repairs but that they were entitled to money due under the deed of further charge. On these findings the plaintiff's suit was dismissed. On appeal by the plaintiff to the lower appellate Court it was held, in agreement with the Court of first instance, that the plaintiff's title to the mortgaged property has not been established. The appeal was accordingly dismissed and plaintiff has preferred this second appeal.
6. The only contention put forward by the learned advocate for the appellant is that Section 43, T.P. Act is applicable to the facts found by the Courts below and that even if Krishna Ram was not entitled to the mortgaged property on 21st August 1903 he became subsequently entitled to it on the death of Damodar, which, according to the defendants occurred on 13th January 1914 a date mentioned in certain proceedings taken by Krishna Sam for letters of administration in respect of the estate of Damodar. The argument based on Section 43, T.P. Act was urged before both the lower Courts but it did not find favour. As I read the judgment of the lower appellate Court on this question, he found that so far as the knowledge of facts possessed by the plaintiff is concerned it warranted a belief in his mind that Damodar had died before 21st August 1903 and that he maintained throughout the trial that Damodar had died before that date. The learned Subordinate Judge has categorically mentioned what he thinks to be the requirements of the rule contained in Section 43, T P. Act. As it stands it would not in terms include all what the learned Subordinate Judge thinks is contemplated by that section. To attract the application of that section it seems to me only three conditions are necessary, namely (1) an erroneous representation that the transferor had authority to transfer the property in question, (2) the transfer should be for consideration and (3) the transferor should be found to have subsequently acquired the interest which he had professed to transfer though he did not possess it. Prima facie the facts found in this case do bring the case within the purview of that section. Whether knowledge on the part of the transferee that the representation made to him was erroneous would take the case out of the section is a question not free from difficulty, but there is no finding by either of the two Courts that the plaintiff was aware of the fact that Damodar was alive when the sale in his favour was effected. On the contrary it is clear that Damodar had not been heard of for a long time before that date. The Courts below have refused to make a presumption that he had died at a given time because he had not been heard of for a number of years. This does not lead to the conclusion that the plaintiff knew that Damodar was alive in 1903. As I have already indicated the concluding part of the judgment of the learned Subordinate Judge shows otherwise.
7. In view of the importance of the question I think the case is a fit one for being heard by a Bench of two Judges. I therefore refer this appeal to such Bench.
8. The facts of this case are fully set out in the order of Niamatullah, J., referring this case to a Bench of two Judges, and it is unnecessary to re-capitulate them. It is contended by the learned advocate for the appellant that upon the facts of this case he is entitled to a decree as in view of the provisions of Section 43, T.P. Act, the appellant must be deemed to have acquired the interest of the mortgagors. There can be no doubt that the interest which the transferor purported to transfer subsists on the date of the suit. The question in this case is whether on the date of sale, namely, the 21st August 1903 the plaintiff knew that Damodar was alive and that his transferor had no interest which he could transfer. It was contended by the learned advocate for the respondents that the plaintiff should have set out in his plaint that on the date of the transfer Damodar was alive and that his vendor had no title to the property but that the plaintiff erroneously believed that his transferor had title. The evidence called on behalf of the plaintiff is to prove that Damodar was not alive on 21st August 1903 and that for some years he had not been heard of. There is no suggestion in the written statement, nor is it pleaded any where that the plaintiff did know that Damodar was alive on the date of the transfer. We have therefore come to the conclusion in view of the recital in the sale-deed that the plaintiff's vendor professed to transfer the property in suit for consideration as an ostensible owner of the property, that the plaintiff did not know that on that date Damodar was alive. The finding of the Court below is that the owner died in the year 1914. It is not suggested that anybody but the vendor of the plaintiff was the heir of Damodar. Under these circumstances we are of opinion that the plaintiff is entitled to bring into aid the provisions of Section 43, T.P. Act and that he is the owner of the equity of redemption.
9. Reliance has been placed on the case of Mulraj v. Indar Singh A. 1. Rule 1926 All. 102 and the cases referred to in the judgment of this Court. An examination of that case and the other cases makes it perfectly clear to us that the finding in that case, as also in the other cases referred to in that judgment, was that the transferee was aware of the true interest of the vendor with reference to the property in question. Those cases therefore cannot be of any help in deciding the present case and are clearly distinguishable upon the facts.
10. We allow the appeal, set aside the decree of the Court below and direct that a decree be prepared under the provisions of Order 34, Rule 7. We declare that defendants 9-12 are entitled to receive the sum of Rs. 200 and the heirs of the original mortgagees are entitled to sum of Rs. 50. The plaintiff must deposit Rs. 250 as the money due to the mortgagees. Six months are allowed for redemption. The appellant will have his costs in this Court and in the Courts below.