1. The appellant is assignee of the decree in Original Suit No. 76 of 1890, which directed that the amount decreed should be recovered on the responsibility of the first and second defendants' shares in the land mortgaged by the bond on which that suit was brought.
2. That bond was executed by the first and second defendants (mother and son) on account of a debt contracted by the formers deceased husband, the father of second defendant. Three other children of first defendant were also joined as defendants in that suit, but they and their shares in the property were exonerated from liability for the debt.
3. Since the passing of the decree, one of those three children of first defendant has died and the decree-holder applied to have attached and sold in execution of his decree not only the 9/24 share in the mortgaged property to which the first and second defendants were entitled at the date of the decree, but also the shares which have now devolved on the above two defendants out of the share of the deceased fifth defendant.
4. The District Munsif ordered attachment as prayed by the decree-holder, but, on appeal by second defendant, the District Judge has ordered the release from attachment of the share inherited by second defendant in consequence of his brother's death.
5. First defendant has not appealed from the District Munsif s order. The question, therefore, is confined to the share inherited by second defendant from his deceased brother; and the answer to the question depends upon whether the decree must be held to limit the liability of second defendant to the share possessed by him in the mortgaged property at the date of the decree.
6. In support of appellant's contention that such is not the case, we have been referred by his vakil to Section 431 of the Transfer of Property Act, and to the decision of the High Court of Calcutta in Deolie Chand v. Nirban Singh I.L.R. 5 Cal. 253.
7. Both Section 43 of the Transfer of Property Act and the case in Deolie Chand v. Nirban Singh I.L.R. 5 Cal. 253 are noticed by the District Judge, but he apparently thinks the latter case not in point, as he presumes the decree in that case was for the fourteen annas share mortgaged, or at any rate for the mortgaged property. But on a careful perusal of the judgment in that case it is seen that the two annas share then sought to be taken in execution of the decree was, at the date of the mortgage, held by the decree-holder, and obviously could not be subject to the mortgage at the date thereof. That two annas share was in fact only acquired by the judgment-debtors in that case in June 1865, the decree having been passed against them in October 1863. It is further clear that the fourteen annas share that had been mortgaged was made up of the twelve annas share, already purchased by the decree-holder in execution of another decree, plus a two annas share which was subsequently found to belong to one Ajoodhya Pershad.
8. The report and the judgment are not quite consistent as to the facts, but that the understanding of the facts on which the learned Judges proceeded was as above stated is apparent from the opening sentence of the judgment from which I have quoted above; and that such was also the contention of the judgment-debtors is apparent from page 254, where it is stated that the 'judgment-debtors contended objecting that the two annas share in question was altogether distinct from the fourteen annas share mortgaged, yet it was held that the decree-holder was equitably entitled to have security, as far as it is possible for the debtor to give it, up to the extent of the fourteen annas for which he contracted.'
9. In the case before us it is not denied that the additional share now sought to be taken in execution was included in the mortgage executed by the respondent (second defendant) and his mother for the debt contracted by-respondent's father, and it seems to me that there is nothing in the decree to prevent so much of the share of fifth defendant in such property as has subsequently devolved on first and second defendants being taken in execution of the decree; and [as?] the words of Section 43 of the Transfer of Property Act 'at any time during which the contract of transfer subsists' are, in my opinion, wide enough to cover the present case, the contract has no doubt merged in the decree; but it must be held to subsist all the same, till the mortgage is satisfied and the mere fact of the share in question having devolved on respondent subsequent to the decree appears to me to be no reason for holding Section 43 of the Transfer of Property Act to be inapplicable. I would, therefore, allow this appeal and setting aside the order of the lower Appellate Court restore that of the District Munsif.
Subramania Ayyar, J.
10. Considering that the respondent and another originally mortgaged to the appellant the whole of the land specified in the schedule attached to the decree and not merely the shares which belonged to the mortgagors at the date of the mortgage, I am unable to say, with confidence, that the intention of the District Munsif, who passed the decree, was, so far as the mortgagors themselves were concerned, to render nothing more than their shares liable for the decree amount. I agree therefore in holding that the order of the District Judge should be set aside and that of the District Munsif restored.
Section 43: Where a person erroneously represents that he
Transfer by unauthoris- is authorised to transfer certain immoveable property, and
ed person who subsequent- professes to transfer such property for consideration, such trans-
ly acquires interest in pro- fer shall, at the option of the transferee, operate on any
perty transferred. interest which the transferor may acquire in such property, at
any time during which the contract of transfer subsists.
Nothing in this section shall impair the right of transferees in good faith for conside-
ration without notice of the existence of the said option.