1. This is a suit for a declaration that the property in suit is liable to be attached in execution of a decree obtained by the plaintiff against the 2nd defendant. He mortgaged the property in 1894 to the 1st defendant. In 1901, the 2nd defendant transferred the patta to the 1st defendant. In October 1912, the plaintiff attached the property in execution of his decree. The 1st defendant preferred a claim which was allowed. Thereupon this suit was instituted. The District Judge differing from the Subordinate Judge held that the property is liable to be sold in execution subject to the 1st defendant's mortgage.
2. In the second appeal Mr. Devadoss's first contention was that the mortgage was an anomalous one, that the condition for converting it into an absolute sale after four years worked itself out, and that the 1st defendant became the absolute owner. We are unable to agree. The period of four years is fixed not as a term of the mortgage, but only as limiting the period of enjoyment in lieu of interest. The document is not capable of being construed as a usufructuary mortgage, for a term as contended for by the learned Counsel. We think that it is a combination of a usufructuary and of a simple mortgage and as such is covered by the exception mentioned in Section 98 of the Transfer of Property Act. In this view, the condition for converting the mortgage into a sale is a clog on the equity of redemption which should be relieved against. We hold following Srinivasa Iyengar v. Radhakrishna Pillai I.L.R. (1913) M. 607 that the mortgage was not converted into an absolute conveyance, but was liable to be redeemed.
3. The next contention was that the mortgagee acquired a title by prescription to the property. It is true that there was a transfer of patta in January 1901. We do not agree with the learned District Judge that the fact that the mortgagee's possession was not interrupted would make any difference. We held in Muthnkaruppan v. Muthu I.L.R. (1914) M. 1158 that possession continued in a different capacity would suffice to start adverse possession, although the original possession was not given up and we dissented from the Calcutta view to the contrary. We adhere to that view. But the further question is that as admittedly on the date of the attachment by the plaintiff, the 1st defendant had not perfected his prescriptive title, whether he is entitled to say that on the date of the suit he had acquired that title, and that consequently the plaintiff is not entitled to any relief in the suit. An old decision of this Court not reported in the authorised reports namely, Seetharama Reddi v. Venkata Reddi (1901) 11 M.L.J. 344 supports Mr. Devadoss. On the other hand, in Krishnappa Chetty v. Abdul Khadir Sahib I.L.R. (1913) M. 535 it was held by a Bench of this Court that from the date of the claim to the date of the final disposal of the suit, the property is subject to lis pendens. In the present case, it is not necessary to take up this extreme position. We understand that this view has recently been questioned by another Bench of this Court. Vasudeo Atmaram Joshi v. Eknath Balakrishna Thite I.L.R. (1910) B. 79 holds that if the title to the property was not perfected on the date of the attachment, the decree-holder can get a decree for attaching it. In our opinion, the proper view to take of the proceedings is this. On the date when the title of the party in possession was still inchoate, the plaintiff chose to invoke the aid of the court to protect the property from attachment. He got no relief in the summary proceedings. He thereupon sought the intervention of the court to establish his title. Consequently he is bound by the decision given against him. It is well establish ed that a decision in a regular suit instituted to contest the order in the claim proceedings places the parties in status quo ante either by vacating the order made in the said proceedings or by confirming it. The result is the plaintiff is directed not to interpose obstacles in carrying out the further steps necessary to reap the fruits of the attachment. Both the parties are bound by that pronouncement. Consequently no question of interruption of possession or of its continuance despite the attachment arises. This conclusion is in consonance with the view taken by the Judicial Committee in Phul Kumari v. Ghanshyam Misra I.L.R. (1907) C. 202 as regards the nature of the right litigated after the order on the claim petition. In our opinion, the right restored to the parties is the right which they asked the court to give a decision upon, as on the date of the attachment. It is not necessary to say what might have been the result, in case the person in possession had not sought the aid of the court and if execution proceedings went on without his intervention. We think the plaintiff has a right to attach the property.
4. The last question relates to improvements. We are not determining their value. But as the decree of the District Judge says that the plaintiff should sell the property subject only to the mortgage, it is necessary to point out that the sale should be subject to the value of the improvements, if any, as well. No doubt it is only when the 1st defendant is evicted that he can claim to be paid their value but none the less, the decree should make it clear that the sale is subject to the value of improvements and that the 1st defendant is entitled to be paid their value before eviction.
5. We feel no doubt that the 1st defendant was a bona fide trans feree. We think that all that the courts should require of him is proof that he made the improvements honestly believing that he was the owner of the property. See Nanjappa Gounden v. Peruma Goundan I.L.R. (1909) M. 580 Narayana Aiyar v. Sankaranarayana Aiyar (1914) I.L.W. 369 Municipal Corporation of Bombay v. The Secretary State for India I.L.R. (1904) B. 580 and Moitheensa Rowthan v. Apsa Bivi I.L.R. (1911) M. 194. The principle of Section 51 of the Transfer of Property Act is applicable to this case. See also Henderson v. Astwood (1894) L.R.A.C. 150. Mr. Krishnaswami Aiyar, vakil for the respondent contended that as the document is incapable of conferring title as owner, there can be no question of bona fides in making improvements. If the transferee acted recklessly and in utter disregard of obvious facts, he could not be said to be acting bona fide. That was all that was laid down in Maddusami Siddappa v. Bhaskara Lakshmi Narasappa (1915) 29 M.L.J. 357. In the present case, the form of the document and the conduct of the mortgagor and of the mortgagee show that the 1st defendant honestly believed himself to be the owner of the property.
6. The decree of the District Judge must be modified so as to inclue the declarations we have indicated. The appeal fails in other respects. Each party will bear his own costs in this Court. The order as to the costs of the lower court will stand.