S. Acharya, J.
1. The plaintiff has preferred this appeal against the con-firming decision of the District Judge, Cuttack, passed in Title Appeal No. 29 of 1960.
2. This Court remanded Second Appeal No. 419 of 1963 to the lower appellate court to decide the matter afresh on giving findings on (1) the question of the plaintiff's right to claim subrogation and reimbursement and (2) whether such a right if available would be barred by limitation when the amendments made in pursuance of the directions of the High Court adding new relief would be deemed to relate back to the date of institution of the suit. The court below on fresh hearing finds that the right to claim subrogation and reimbursement is not available to the plaintiff, appellant herein. It has not decided the question of limitation on the ground that it does not arise for consideration in view the conclusion on the first above-mentioned question.
3. The plaintiff's case in short is that Touzi No. 3695 belonged to Gokula-nanda. Baikunthanath and Kunjabehari, each having one-third share therein. Kuniabehari separated from the other two branches and the other two Gokula-nanda and Baikunthanath, having two-thirds share, continued joint, Baikunthanath mortgaged his one-third interest to one Murali Panda in 1933. Murali's son Mohini Mohan obtained a mortgage decree against Baikunthanath and put his share to sale in Execution Case No. 354 of 1941. Defendant No. 1 Rabindranaravan, son of the above named Kunja-behari, purchased the share of Bail kunthanath in court sale on 15-9-1941 for Rs. 1,000/-. Before confirmation of the sale. Baikunthanath executed a sale deed in favour of the plaintiff for a consideration of Rs. 1,500/- on 25-10-1941 in respect of his 5 annas 4 pie share in the said Touzi which was on sale in the execution case. That sale deed was registered on 27-10-1941. From out of the consideration money Paid by the plaintiff. Baikunthanath through his son deposited Rs. 1,000/- in court, andthe above-mentioned sale in the execution case was set aside on 6-1-1942. In the meanwhile on 17th November. 1941 10 annas 8 pies share in the Touzi belonging to Baikunthanath and Gokula-nanda was also put to sale in a certificate proceeding for arrears of cess and the first defendant purchased that portion of the Touzi in that sale. It is worthwhile mentioning that the said certificate proceeding was filed on the 15th August, 1940 and notice thereof under Section 7 of the Public Demands Recovery Act was served on the 10th March, 1941 on the certificate debtor No. 2 who was living at that time. No notice could be served on certificate debtor No. 1 reported to be dead by that time. In Second Appeal No. 169 of 1949 the Division Bench of this Court, on a consideration of the facts of this case, found that the above-mentioned Baikunthanath was the certificate debtor No. 2 and certificate debtor No. 1. who was reported to be dead, was Gokulananda these two being the co-sharers of the said two third share in the Touzi-Notice under Section 25 (2) of the Public Demands Recovery Act was issued on the 21st May. 1941 and on the 15th Oct., 1941 the agent of Gokulananda and the brother of defendant No. 1 filed an application for payment of the certificate dues bv instalments. aS no instalment as ordered by the certificate court was paid, the aforesaid certificate sale was held on the 17t'h November, 1941 and defendant No. 1 purchased the same and this sale was confirmed on the 20th January, 1942.
The plaintiff alleges that the purchase made by defendant No. 1 in the above-mentioned certificate sale was Be-nami for the co-sharers Baikunthanath and Gokulananda and the said sale and purchase were brought about and effected by fraud and collusion, without letting the same known to the plaintiff, in order to cause wrongful loss to the plaintiff, and so he is entitled to reconveyance of his share in the Touzi on payment of proportionate share of the certificate sale amount.
4. Defendant No. 1, who alone contested the suit, resists the plaintiff's allegations inter alia on the following grounds: (1) The certificate sale was not fraudulent, collusive or Benami; (2) The plaintiff was fully aware of the arrears of the cess due on the Touzi; (3) The plaintiff neglected to pay the same and allowed the sale to take place and (4) he (defendant No. 1) has acquired a valid title to the suit property by purchasing the same in the certificate sale. Mostly on the above grounds he prays for the dismissal of the plaintiff's suit.
5. This case has a chequered career which is evident from the factthat this is for the third time it has come to be decided in this Court by way of second appeals. In the first second appeal arising out of this case (Second Appeal No. 169 of 1949 (Orissa)) it has been held that the concurrent finding of fact that there was neither fraud nor collusion amongst the defendants in the aforesaid certificate sale, cannot be interfered with. With regard to the sale effected by Baikunthanath in favour of the plaintiff it has been held that there was no erroneous representation within the meaning of Section 43 of the Transfer of Property Act and accordingly the plaintiff cannot have recourse to that section and contend that he had an absolute title to the suit land at the time the property was sold in the certificate sale. The contention of the plaintiff, that by virtue of purchase in the certificate sale on 17-11-1941 no title vested in defendant No. 1 as by then the above-named Baikunthanath had already parted with his equity of redemption in favour of the plaintiff by the registered sale deed dated 25-10-1941, has been negatived in view of the provisions of Section 8 of the Public Demands Recovery Act. In this connection it has been held that as the Section 7 notice under the Public Demands Recovery Act had been served on Baikunthanath in March. 1941 and he executed the sale deed in favour of the plaintiff on the 25th October. 1941 by the express terms of Section 8 (a) of the said Act the private transfer made by Baikunthanath in favour of the plaintiff is void against the claim enforceable in execution of the certificate. It has also been found that as the mortgage decree was fully satisfied on account of the deposit of money made by Baikunthanath the first defendant, by purchasing his share in the Touzi in the certificate sale obtained full title to the same. The Hon'ble Judges directed amendment of the plaint as prayed for and remanded the second appeal to the trial court for deciding the two new questions viz. (1) Whether the plaintiff-appellant was entitled to succeed in his claim of subrogation and (2) whether under the certificate sale the one-third interest of Baikunthanath alone passed in the 5 annas 4 pies share of the Touzi or the interest of himself and his two sons also passed to the purchaser defendant No. 1. After remand the trial court held that the plaintiff was not entitled to be subrogated to the rights and privileges of the prior mortgagee, and secondly such a claim for subrogation was barred by limitation. On the above-mentioned second question the trial court found that under the certificate sale the interest of defendant Nos. 3 and 4 also passed to the auction purchaser and the sale of such interest is not vitiated for want of notice underSection 7 of the Public Demands Re-covery Act The plaintiff's suit was accordingly dismissed by the trial court. In appeal by the plaintiff the appellate court dismissed the appeal on the ground that the plaintiff's claim for subrogation was barred by limitation under Article 132 of the old Limitation Act. 'It. however, held that the trial court had no jurisdiction to consider the question as to whether the plaintiff was entitled to claim right of subrogation as in Second Appeal No. 169 of 1949 (Orissa) the above-mentioned question was decided in the affirmative in favour of the plaintiff. With regard to the above-mentioned second question the appellate court concurred with the finding of the trial court that 5 annas 4 pies interest in the said Touzi including the interest of defendant Nos. 3 and 4, the sons of Baikunthanath, passed to defendant No. 1, the purchaser at the certificate sale, and as such the plaintiff was not entitled to claim reconveyance of any share in the disputed properties.
6. Against the aforesaid decision, the plaintiff for the second time moved this Court in Second Appeal No. 419 of 1963 (Orissa). At the hearing of this appeal the question regarding the passing of interest of defendant Nos. 3 and 4 to the purchaser in the certificate sale, being the second above-mentioned question referred to the trial court as stated above, was not pressed, as specifically mentioned in the judgment of this Court in Second Appeal No. 419 of 1963 (Orissa). The only two pointsurged and argued for both sides in the said second appeal were: (1) Whether the courts below erred in holding that the claim of the plaintiff to be reimbursed was barred by limitation and (2) whether the lower appellate court erred in holding that the High Court in Second Appeal No. 169 of 1949 had already decided the question regarding the right of the plaintiff to be reimbursed by virtue of his claim of subrogation and so it was no longer open to the trial court to consider that question and come to a finding that the plaintiff was not entitled to subrogation. Hon'ble A, Misra. J. decided that the lower appellate court was wrong in its interpretation that their Lordships in Second Appeal No. 169 of 1949 (Orissa) finally decided the question that the right of the plaintiff to be reimbursed by virtue of his claim of subrogationwas already decided by the High Court In the previous second appeal and that it was no longer open to the trial court to consider that question. On arriving at the aforesaid finding Hon'ble A. Misra. J. again remanded the case to the lower appellate court for disposal by giving findings on the question of the plaintiff's right to claim subrogation and reimbursement, and whether such a right, if available, would be barred by limitation. The appellate court on remand finds that the plaintiff-appellant is a mere volunteer and, therefore, is not entitled to claim subrogation under Section 92 of the Transfer of Property Act or reimbursement under Section 69 of the Indian Contract Act. In view of the aforesaid conclusion the other question of Limitation did not arise for the appellate court's consideration.
7. Mr. Rao, the learned counsel for the appellant at the outset contend-ed that in the Division Bench decision of this Court in Second Appeal No. 169 of 1949 (Orissa) their Lordships held that the plaintiff was entitled to be subrogated and so it was not available for the trial court to consider and give a finding on this and other questions arising therefrom. According to Mr, Rao, in view of the aforesaid decision on the above question, the only thing which was available for consideration of the lower courts was to determine the amount to be reimbursed to the plaintiff. This particular question was agitated in the above-mentioned Second Appeal No. 419 of 1963 (Orissa), and Hon'ble A. Misra, J. on an elaborate consideration of the findings and conclusions, in Second Appeal No. 169 of 1949 (Orissa) arrived at the definite finding that the above-mentioned question pertaining to subrogation was not at all decided by the High Court in the previous second appeal. Moreover, the learned counsel who appeared for the appellant in Second Appeal No. 419 of 1963 (Orissa) expressly conceded that the Higih Court in Second Appeal No. 169 of 1949 (Orissa) did not decide the question of subrogation, and the lower appellate court was wrong in holding that the said question had been finally decided by the High Court and the learned Munsif had no iurisdiction to consider the claim of subrogation or giving a finding on that question. As the appellate court did not give any finding and set aside the finding of the trial court on this aspect of the matter on the aforesaid basis, Misra J in Second Appeal No. 419 of 1963 (Orissa) remanded this case again to the appellate court as stated above. Therefore, the above-mentioned contention of Mr. Rao is without any force and substance.
8. It was next contended by Mr. Rao that the above-mentioned certificate sale was effected on 17-11-1941. Prior to that the plaintiff on 25-10-1941 had purchased one-third share in the Touzi from Baikunthanath and the said sale deed was registered on 27-10-1941. Onthe above facts Mr, Rao contended that the said sale by Baikunthanath was valid at the time when it was effected in favour of the plaintiff and it became void only on 17-11-1941 when the certificate sale was made, and so. as Baikunthanath deposited Rs. 1,000/- in the aforesaid execution case arising out of the previous mortgage decree from out of' the consideration money received from the plaintiff on account of the aforesaid sale, the plaintiff was entitled either to be subrogated or to be reimbursed. I do not find any merit in this contention. In this case the certificate proceedings were initiated on the 15th August, 1940 and notice under Section 7 was served on Baikunthanath on the 10th March, 1941. The sale in favour of the plaintiff by Baikunthanath was made on 25-10-1941 i.e. subsequent to the service of notice under Section 7 in the said certificate proceedings. Consequently by the express provisions of Section 8 (a) the private transfer made by Baikunthanath in favour of the plaintiff in the aforesaid circumstances is void against the claim enforceable in execution of the certificate. As the first defendant purchased the property in the certificate sale, the sale deed executed by Baikunthanath in favour of the plaintiff on 25-10-1941 is void as against the certificate purchaser the defendant No. 1. The Division Bench in Second Appeal No. 169 of 1949 (Orissa) has decided this question as stated above. There is nothing in Section 8 of the Public Demands Recovery Act nor could Mr. Rao cite any authoritative decision from which it can be said that the private transfer effected prior to the actual date of the certificate sale was valid at the time when it was made, and it became void only after the certificate sale. Accordingly, this contention of Mr. Rao also fails.
9. The next Point for consideration is whether the plaintiff, by purchasing the property from Baikunthanath on 25-10-1941, has acquired the right on subrogation, as Baikunthanath redeemed his share in the Touzi by payment of Rs. 1,000/- from the consideration money received from the plaintiff. This question has been considered by the court below in the context of the evidence on record and in the light of relevant decisions on the question. Apart from the above considerations I also find that the plaintiff, on the execution of the sale deed in his favour on 25-10-1941, paid Rs. 1,500/- to Baikunthanath as consideration money for the said sale. Baikunthanath through his own agent deposited Rs. 1,000/- and odd to satisfy the mortgage decree against him and redeemed the mortgaged property. The plaintiff did not take any step for depositing the money in the execution proceeding for the purpose of redeemsing the mortgage debt. A sum of Rs. 1022-4-9 pies was deposited into court in the aforesaid execution proceeding by Baikunthanath's son, respondent No. 3, to set aside the auction sale. By the time this amount was deposited, the sale deed. Ext. 1, executed in favour of the plaintiff on 25-10-1941 had not been registered. It appears from paragraph 8 of the judgment in Second Appeal No. 169 of 1949 that in the Kabala Ext. 1 it is mentioned that Baikunthanath wanted money to free the properties from the auction sale held in execution of a Civil Court decree and for payment of certain arrears of cess and to meet other necessary expenses. It also appears therefrom that specifically there is no mention in the sale deed about the existence of the mortgage decree. From the above facts it cannot be said that the plaintiff advanced the above-mentioned consideration money to Baikunthanath to redeem the property sold in execution of the mortgage decree. On the contrary, the above-mentioned recitals indicate that Baikunthanath wanted money not only to free the property from the said auction sale, but also for other purpose as stated above. From the above-mentioned facts it is also possible that the plaintiff probably did not know about the existence of the said mortgage decree.
10. Apart from the above factual aspect there is no evidence to show that the plaintiff-appellant had any preexisting prior interest in the property. There is no evidence or assertion about express assignment of the equity of redemption by Baikunthanath in favour of the plaintiff. The distinguishing feature between subrogation by operation of law, as provided under the first paragraph of Section 92 of the Transfer of Property Act, and subrogation by agreement provided under the third paragraph of the said section is that in the former the .person having a pre-existing interest in the property discharges the prior mortgage to protect his own interest, whereas in the latter case he would be discharging only an obligation he had undertaken under a specific agreement. In the present case the sale deed executed on 25-10-1941 and registered on 27-10-1941 did not confer any valid right, title or interest on the plaintiff in the said property, as that sale is void under Section 8 fa) of the Public Demands Recovery Act for reasons stated above. So it cannot be said that the plaintiff had any subsisting interest in the property for the protection of which he paid the consideration money. The aforesaid purchase being the sole basis of his interest in the property on which he founded his claim for subrogation,and the said purchase is of no avail to him, being void and inoperative in law, his claim for subrogation cannot be sustained in law. The plaintiff having no interest in the property is in the position of a volunteer, and so he cannot claim the right of subrogation.
In Sariug Devi's case (AIR 1960 Pat 474), it 'has been held that where a person, who has no interest in the equity of redemption or the property mortgaged pays off the mortgage and goes into possession, he is a mere volunteer with no equities in his favour and is not subroaated to the rights of the mortgagee. A suit for possession against him by the owner of the equity of redemption, without paying the mortgage money, is maintainable. In that case the person actually paid the mortgage money and was in possession of the property; even then it was decided as stated above.
In the case reported in AIR 1931 Mad 110 it has been held that the doctrine of subrogation is not applicable to a volunteer. The decisions reported in AIR 1952 Trav-Co 105 and AIR 1936 Mad 308 support the above-mentioned view. Therefore, the plaintiff's case does not come within the first paragraph of Section 92 of the Transfer of Property Act.
11. The plaintiff also cannot bring his case within the provisions of the third paragraph of Section 92 as he has not made out a case of specific agreement as provided in the said paragraph.
12. For reasons stated above, the plaintiff cannot claim the right of subrogation on the facts and circumstances of this case.
13. On the above discussions and considerations I do not find any merit in this appeal which is hereby dismissed with costs.