The suit out of which this second appeal has arisen was for Sale on a mortgage. The plaintiff was the mortgagee and the 1st defendant the mortgagor. The 3rd defendant was made a party to the suit on the ground that he claimed ownership in respect of the 2nd item of the property, the subject-matter oi the suit. The plaintiff has been granted a decree in respect of half of item No. 2 in the suit.
The point taken last by the learned Vakil for the appellant may first be disposed of. He argued that the 3rd defendant was not a necessary party at all to the suit upon the mortgage, but he was made a party as a person claiming title to the property in himself and the plaintiff made him a party to the action on the ground that the property which was subject to the mortgage was in his possession. No objection was taken to this course and we cannot possibly accede to the contention that at this stage we should allow this point of misjoinder to be taken for the first time.
It was next argued that the decision relating to the fraud on the registration on the ground that item No. 1 was fraudulently included originally in the suit mortgage, Ex. A, merely for the purpose of getting the deed of mortgage registered in a particular registration district, was come to by the lower Appellate Court without an opportunity being given to the District Munsif's Court to arrive at a finding thereon. The District Munsif did not give a finding with regard to it because, in the view he took of the case, it became unnecessary for him to do so. But the lower Appellate Court has gone fully into the matter and affirmatively found against the fraud alleged: We are not satisfied that the finding of the lower Appellate Court on this matter is wrong. The lower Appellate Court was not bound to remand the case and it was entitled in law to come to any finding of fact by himself.
On the main question it was argued by the learned Vakil for the appellant that the basis upon which the lower Appellate Court proceeded to grant the decree to the plaintiff was wrong, namely, the ground that the 3rd defendant was estopped from contending that the mortgage in favour of the plaintiff was improper. It is difficult to sustain the judgment of the lower Appellate Court on this matter. If the property was admittedly joint family property the mere fact that it comes to be dealt with by one of the members of the family as if it were his own property cannot be relied upon by any person who deals with such purchaser for the purpose of showing that such purchaser can be regarded as an ostensible owner of the property. Estoppel can arise only if the owner of the property allows it to be dealt with by the ostensible owner. In other words when the owner holds out some other person as the real owner of the property, he is in law estopped from afterwards disputing whatever that ostensible owner did. If, admittedly, the entire joint family was the owner there was no room for invoking any such estoppel because it was nobody's case that the joint family held out some third party as the owner of the property. But it is clear that if not on that ground, the judgment of the lower Appellate Court can be sustained for other reasons.
We must take it that the finding of the lower Appellate Court with regard to Ex. D. the sale-deed in favour of the 1st defendant was that it was for consideration. Mr. Watrap S. Subramania Ayyar for the appellant argued that the finding with regard to the consideration for Ex. D was only involved in the finding of the consideration for Ex. A and that, therefore, the lower Appellate Court should be called to find separately. The considerations for the two are separate and it is clear that according to the finding recorded by the lower Appellate Court, the consideration for Ex. D was a certain promise to discharge the debts of the vendor made by the 1st defendant and the consideration for Ex. A was a promise to discharge those debts made by the plaintiff to the 1st defendant. It was, however, strenuously con tended that there was a previous suit instituted by the 3rd defendant-appellant for partition and delivery over to him of his share in item No. 2 and that in that suit it was held by the Court that Ex. D was not supported by any consideration and was also in fraud of the 3rd defendant, the plaintiff in that suit I he 1st defendant was a party to that suit and as an adjudication it would undoubtedly be binding on her but no far as the present plaintiff is concerned it cannot operate as res judicata. It is undoubtedly true that the plaintiff does claim under the 1st defendant but the title of the 1st defendant alone was than in question, and as the adjudication was subsequent to the title of the plaintiff it follows that any adjudication come to against the alienor subsequent to the alienation cannot operate as res judicata against the person whose alienation was not then in question. Therefore, the plea of res judicata, it follows, cannot be sustained.
Next, it was argued that, in any ease as the mortgage in favour of the plaintiff was made during the pendency of the suit for partition instituted by the 3rd defendant and referred to above the adjudication in that cape must in some manner be regarded as binding upon the plaintiff. As the plaintiff was not a party to that suit and is not a person claiming from the 1st defendant subsequent to the adjudication it follows that the rule is not available as against him. With regard to alienation pendente lite the rule is not that the alienation is absolutely void that the transfer will not affect the rights of any party thereto under any decree or order which may be made in the suit. In other words the transfer will be available and valid subject, however, to the result of the suit during the nendency of which the transfer is made. If as a result of the previous suit the entire pmpertv had been given to the 3rd defendant no doubt, it would not now be open to the plaintiff to rely upon that mortgage even to the extent of the one-half. But the previous suit was only for the half share of the 3rd defendant in the property and there was no claim in the previous suit relating to the entire property and, in any case, the decree was only by way of granting him a moiety of item No. 2 in the present suit. If so, we must hold, as has been held by the lower Appellate Court, that it is only to the extent of the half that the 3rd defendant became entitled that the mortgage would not be binding. The decree, however, that has been granted is only in respect of the other moiety than the moiety that was granted to the 3rd defendant under the decree. It follows from all these considerations that the decree passed by the lower Appellate Court is right and the second appeal is, therefore, dismissed with costs of the 1st respondent.