1. The facts which have given rise to the litigation out of which this appeal arises, so far as it is necessary to state them, lie in a narrow compass and do not admit of any substantial doubt or dispute. On the 27th March 1893, the first defendant to the suit, Mathura Nath Mazumdar, executed a mortgage in favour of the plaintiff in respect of seven properties The interest, which the mortgagor purported to convey to the mortgagee in properties 1, 2 and 4, was that of a permanent lessee under the second defendant, Krishna Chandra Grhose, who had granted leases in his favour on the 31st January and 29th February 1888. After the grant of these leases by the second defendant in favour of the first defendant, and before the execution of the mortgage by the second defendant in favour of the plaintiff, in 1891, some creditors of the second defendant had caused these properties to be sold in execution of decrees which they held against him, and at these sales the first and the fourth properties had been purchased by defendants 3 to 8 to the present litigation, and the second property had been purchased by the defendants 3 to 6. These purchaser defendants, who have been described in these proceedings as the Dutts, subsequently, in 1900, sued the first and second defendants upon the allegation that the leases executed by the latter in favour of the former in 1888 were fraudulent and collusive transactions, and obtained decrees for recovery of possession. The plaintiff was not a party to these suits and is in no way bound by any decision between his mortgagor and the Dutts. He now sues to enforce his mortgage and also for a declaration that the leases of 1888 executed by the second defendant in favour of the first defendant were genuine transactions, and consequently that the Dutt defendants, by their purchase, in 1891, of the right, title and interest of the second defendant, did not acquire any interest in the properties covered by the mortgage. The suit was resisted in the Court below upon various grounds of law as well as of fact; but it is sufficient to state for the purposes of this appeal that the Dutt defendant* contended that the suit had not been properly framed, inasmuch as adverse claimants in their position could not be rightly made parties to the mortgage suit for the purpose of litigating their titles. This contention was negatived by the learned Subordinate Judge, and he overruled their objections that they ought to be dismissed from the suit. Evidence was then taken and the case heard on the merits. The learned Subordinate Judge held that the leases of 1888 included in the mortgage, which the plaintiff seeks to enforce, represented genuine transactions and that the Dutt defendants have acquired no title to the mortgaged premises by their purchase of 1891, which, according to the Court below, was collusive and fraudulent. The learned Judge in this view of the matter has made the usual decree for sale in favour of the plaintiff, and he has attached to it a declaration that the properties 1, 2 and 4 belonged to the mortgagor and not to the Dutts. The Dutts have appealed to this Court, and on their behalf the decree of the learned Subordinate Judge has been challenged on various grounds, of which it is necessary to mention only the following, namely, what the suit has not been properly framed, that the Dutts are not proper parties to the suit, and that as. they claimed under a title adverse to that of both the mortgagor and the mortgagee, their title cannot be litigated in these proceedings. This contention is well founded and must prevail.
2. In support of his argument the learned Vakil for the appellants has contended that the only proper parties to a suit for sale on the basis of a mortgage are the mortgagor and mortgagee and those who have acquired any interest from them subsequently to the mortgage and that an adverse claimant, who is a stranger to the mortgage and the estate is not a proper party to such a suit. Reliance has been placed upon passages from Bobbins on Mortgages, Vol. 2, page 1028, Fisher on Mortgages, Section 988, and Jones on Mortgages, Sections 1440 and 1589. Reference was also made to the cases of Nilakant Banerji v. Suresh Chandra Mullick (1885) I.L.R. 12 Calc. 414, Grish Chunder v. Jura Moni (1900) 5 C.W.N. 83. Rep. 349, Surjiram v. Barhamdeo (1905) 1 C.L.J. 337 and Mon Mohini Ghose v. Parvati Nath Ghose. It was contended, on the other hand, by the learned Vakil for the plaintiff respondent, that there is no inflexible rule of law that a question of paramount title cannot be litigated in a mortgage suit, that it is a matter of convenience whether such a question should be raised and discussed, and that the objection of the appellants ought not to be allowed to prevail, because the inconvenience, if any, has already been undergone in the course of the trial, which has resulted in a finding adverse to them. This position is sought to be supported by reference to the oases of Sure Krishna v. Robert Watson & Co. (1905) I.L.R. 32 Calc. 746, Provident Loan Trust Co. v. Marks (1898) 59 Kansas 230, 68 Am. St. Converse v. Michigan (1891) 45 Fed. Rep. 18, Other v. Pratt (1845) 3 Howrad 333, 407, Mavrich v. Grier (1867) 93 Am.Dec. 373 and Francis v. Harrison (1889) 43 Ch D.183. It is also suggested that the Dutts are precluded by the doctrine of estoppel from setting up their paramount title, and reference is made in this connection to the decision of the Judicial Committee in Mahomed Mozuffer Hossein v. Kishori Mohun Roy (1895) I.L.R. 22 Calc. 909 : L.R. 22 I.A. 129. The question raised is one of great importance and by no means free from difficulty. On a careful consideration, however, of the elaborate arguments addressed to us by the learned Vakils on both sides, we have arrived at the conclusion that the appellants are entitled to succeed.
3. Section 85 of the Transfer of Property Act provides that 'subject to the provisions of the Code of Civil Procedure, Section 437, all persons having an interest in the property comprised in a mortgage must be joined as parties to any suit under this chapter relating to such mortgage, provided that the plaintiff has notice of such interest.' It is clear, therefore, that the only persons who are proper parties to a suit to enforce a mortgage are persons having an interest in the property comprised in the mortgage. But what is the precise meaning of the words 'property comprised in a mortgage?' Is the word 'property' used in this section to indicate the actual physical object, or does it merely denote the rights in such object, which form the subject-matter of the transaction. In our opinion, the latter is the construction which ought to be placed upon the term, We are unable to adopt the view of the majority of the learned Judges of the Allahabad High Court, who decided the case of Mataain Kasodhan v. Kuzim Husain (1891) I.L.R. 13 All. 432 in their view that the term 'property' means an actual physical object and does not include mere rights relating to physical objects. That view is inconsistent with the decision of the Court in Surji Ram Marwari v. Barhamdeo Persad (1905) 1 C.L.J. 337, and, if adopted, would lead to startling results. To take one concrete illustration, the Government may be owner of a particular parcel of land, A may be the zamindar of that parcel under the Government, B a patnidar under A and C a darpatnidar under B. C executes a mortgage of his darpatni interest in favour of X. If X sues to enforce his security, is the Government or A or B a proper or necessary party to the litigation? If the term 'property' in Section 85 means the physical object, each of them would be a necessary party. But it is difficult to conceive upon what principle and with what object in view, any of these persons, who have no interest in the mortgage transaction, should be dragged into the litigation. We must hold that the property comprised in a mortgage is the interest which the mortgagor is competent to transfer by way of mortgage at the date of the transaction. In this view of the matter, the estate or interest in the land which is drawn within the operation of the suit, which will be affected and bound by the decree, is the estate created and passing by the mortgage, or estates or interests subsequently acquired by the mortgagor and enuring by way of estoppel to the benefit of the mortgagee. Not only the mortgagor, therefore, but all persons deriving title from him subsequent to the mortgage and bound thereby as holders of different fragments of the equity of redemption, are necessary and proper parties to a suit to enforce the mortgage. For precisely the same reason, a prior incumbrancer, who is in no way interested in the puisne mortgage and against whom no relief is claimed is not a necessary party to a suit so framed. As explained in the case of Surji Ram Narwari v. Baramdeo Persad (1905) 1 C.L.J. 337, the subject-matter of the litigation in such a suit is the interest of the mortgagor minus the interest of the first mortgagee, if any, and no decree made in such an action can possibly affect the rights of persons, who claim under a prior title. The interpretation, which we put upon Section 85, leads necessarily to the conclusion that the proper scope of a mortgage suit is to cut off the equity of redemption and to bar the rights of the mortgagor and. those claiming under him; the only proper parties to such a suit are the mortgagor and the mortgagee and those who have acquired interests under them subsequent to the mortgage. It is not competent for the mortgagee to make as party defendant, one who claims adversely to the title of the mortgagor and mortgagee. He is a stranger to the mortgagee, has no connection with the mortgage, and as his adverse claim of title cannot in any way be affected by the mortgage suit, in which he has no interest, he can not be made a party for the purpose of litigating such claim of title. This view appears to us to be well founded on principle and is not only sustained by a fair and reasonable interpretation of the language of Section 85 of the Transfer of Property Act, but is, as will presently be shown, supported by a considerable body of authorities.
4. As regards Indian cases, the discussion at the bar turned principally upon the precise effect of the decisions in Nila Kant Banerji v. Suresh Chandra Mullick (1885) I.L.R. 12 Calc. 414. and Hare Krishna v. Robert Watson & Co. (1901) 8 C.W.N. 365 the former of which was relied upon by the appellants as an authority in their favour, and the latter was referred to by the respondent as lending support to his position. From the first of these cases it appears that a mortgagee had brought a suit to enforce his security against the mortgagor and certain persons who, he alleged, had acquired an interest in the equity of redemption, subsequent and subordinate to the mortgage; these latter, however, set up a title hostile and paramount to that of both the mortgagor and mortgagee, and contended that they were not proper parties to the litigation. They were dismissed from the suit and were awarded their costs against the mortgagee plaintiff, in whose favour the usual decree for sale was made as against the mortgagor. The mortgagee decree holder executed his decree and purchased the mortgaged premises; he then brought a suit for ejectment against one of these hostile claimants, who was in possession. The claim was resisted on the ground that the defendant had a superior title not affected by the mortgage, which was the foundation of the plaintiff's title; and in the alterative, that, if his title was found to be subordinate to the mortgage, he was entitled to redeem. The Judicial Committee held that the paramount title set up by the defendant was entirely fictitious, and that consequently, the plaintiff was entitled to succeed; the defendant could not be allowed to redeem, as he was afforded an opportunity to do so in the previous litigation, but had deliberately declined the position and had insisted that the Court should dismiss him and treat him as if he were not a person, who could be put to redeem at all. Upon the question, whether the adverse claimants had been rightly dismissed from the mortgage suit, their Lordships observed that, if the defendants, who alleged paramount titles in themselves, had been allowed to remain as parties, the suit would have been multifarious and confused in the highest degree, if it had gone on in that shape, as the defence raised was quite foreign to a mortgage suit. In a subsequent passage, while dealing with some observations of the High Court as to whether the adverse claim set up could be conveniently tried in the mortgage suit, their Lordships pointed out that though the paramount claims could not be conveniently tried in such a suit, whether the defendant had a right to redeem could only be tried in that proceeding and could not be conveniently or properly tried in any other suit. It appears to be quite clear, upon a careful examination of the whole judgment of their Lordships of the Judicial Committee, that it is an authority for the proposition that adverse claimants ought not to be made parties to a mortgage suit for the purpose of litigating their titles, and that the only proper parties to such a suit are persons interested in the equity of redemption; see Mon Mohini Ghose v. Panali Nath Ghose (1905) I.L.R. 32 Calc. 746. The second case Hare Krishna v. Robert Watson & Co. (1901) 8 C.W.N. 365 is clearly distinguishable, and not really opposed to this view. That was an action by a mortgagee or an occupancy holding to enforce his security as against the mortgagor, and the Watsons who were landlords of part of the mortgaged holding and assignees of the equity of redemption of the rest. The Watsons, however, did not offer to redeem, but set up a paramount title on the ground that the holding was non-transferable and the mortgage was invalid as against them in their character of landlords. The plaintiff did not ask that the Watsons should be dismissed from the suit, but accepted their challenge, and after a trial on the merits, was defeated. He then came up to this Court and argued that his suit had been improperly framed, and that the paramount title set up by the Watsons should not have been investigated. This contention was overruled, and it is manifest that the Court could not have adopted any other course. If a defendant in a mortgage suit sets up by his answer a paramount title, and without objection goes to trial upon that issue, can either party, who has taken the chance of a favourable decision when defeated, ask a reversal on the ground that the issue was not properly triable in that action? We are of opinion that he cannot, because the question is not one of jurisdiction, but rather of the frame of the litigation and the scope of its enquiry. The contrary view which is maintained in some of the American Courts (Jones on Mortgages, Section 1440) is apparently justified on the ground that the question there may ultimately resolve itself into one of jurisdiction by reason of the distinction which prevails between a Court of Equity and a Court of Common Law. Besides, as was pointed out by Mr. Justice Banerjee In Hare Krishna v. Robert Watson & Co. (1901) 8 C.W.N. 365, the facts of that case were very peculiar, inasmuch as the person, who set up a hostile title, had a twofold character, in one of which he would be entitled to redeem and to that extent he would be a proper and necessary party to the suit. We are, however, unable to agree in the view taken by that learned Judge that the rule is one of convenience merely, and that when the inconvenience has been undergone by a trial in the Court of first instance, the breach of the rule affords no ground for areversal of the decree by a Court of appeal. The obvious effect of the adoption of this view is that in order to determine whether, in a particular case, the question of an adverse title can be conveniently determined in a mortgage suit, the whole of the trial will have to be held, and the inconvenience, if any, undergone before the question could be definitely answered. The result would be that the rule which, as will presently be shown, is based on substantial grounds, would be completely frittered away. We are also unable to adopt the view suggested by the learned Vakil for the respondent that the rule is not merely one of convenience, but that the question of convenience is restricted to the Judge in the Court of first instance; if the rule is really one of convenience, it is obviously a matter which affects not only the Judge in the Court of first instance, but also the parties to the litigation and the Judges of the Court of appeal. On the whole, therefore we must hold that the Indian cases, so far as they go, support the view taken by us.
5. As regards the authorities on the subject under English law, reliance was placed by the learned Valul for the appellant upon passages from Fisher on Mortgages, 5th edition, Section 988. and Bobbins on Mortgages, Vol. II, page 1023. In the first of these passages it is stated that the 'mortgagee in his action for foreclosure or sale of the mortgaged estate is not allowed to debate the title to the estate, because the course of the Court in a foreclosure suit is only to take away the equity of redemption and to leave the plaintiff such remedy as he has, but not to amend it.' In the second passage it is stated that the 'Court will not permit the mortgagor's title to be investigated in proceedings for foreclosure; the Court can. only bar the equity of demption and leave the mortgagee to pursue his legal means to establish his right.' The rule is similarly stated in Coote on Mortgages, 7th edition, page 1014. This statement of the rule in England is based upon the case of Anonymous (1678) 2 Ch. Ca. 244 in which Lord Chancellor Nottingham held in 1678 that 'the mortgagee cannot be permitted to debate the title of his mortgagor in a suit for foreclosure or sale, because the Court can go no further in such a bill> but to take away the equity of redemption and leave the plaintiff such title as he has.' The Reporter adds that 'this was the true and ancient course, though of late sometimes the contrary has been dona.' That this has been the settled rule in England appears from Vicer's Abridgement, tit. Mortgage, Vol. 15, page 476, Section 3. It was suggested, however, by the learned Vakil for the plaintiff respondent that the rule is not inflexible in England, because, as is shown by the case of Francis v. Harrison(1889) 43 Ch. D. 183, a cestui que trust is, under certain circumstances, a necessary party to a foreclosure action for the mortgagee, who is a trustee of his mortgage for the beneficial owners of the mortgage money, and who has become bankrupt, cannot, as defendant to a foreclosure action by a prior morgagee, properly represent his cestui que trust. It is not necessary for us to consider under what circumstances a cestui que trust is or is not a necessary party to a mortgage suit (see Fisher on Mortgages, 5th edition, Sections 1614 and 1650), nor is it necessary for us to refer to the alteration made in order XVI, Rule 8 of the Rules of the Supreme Court (sea Ashburner on Mortgages, page 530, and Coote on Mortgages, 7th edition, page 1026). The question in these cases is as to whether the trustee sufficiently represents the persons beneficially interested in the trust or estate as a defendant; and there is in reality no analogy between such a case and a litigation of the description now before us, in which the plaintiff seeks for a declaration that the Dutt defendants have no interest in his mortgaged premises. We must take it accordingly that so far as the rule in England is concerned (see Annual Practice, 1906, Vol. I, page 149), it does not lend any support to the contention of the respondent that in a suit for' sale or foreclosure the title of an adverse claimant may be litigated.
6. As regards the authorities on the point in Ameries the learned Vakil for the plaintiff respondent placed considerable reliance upon the cases of Procidcni Loan Trust Company v. Marks (1898) 59 Kansas 230 : 68 Am. St. Rep. 349. and Converse v. Michigan Dairy Company (1891) 45 Fed. Rep. 18. The first of these cases , no doubt is an authority for the proposition that a claimant of title paramount to a mortgage is a proper party to a suit to foreclose it, and if the decree is against him it is conclusive of his claim of title. The second case is an authority for the proposition that a mortgagee can mate judgment-creditors of the mortgagor's grantor parties to his foreclosure suit, when these creditors assert a claim on the ground that the transfer to the mortgagor was in fraud of their rights, and that therefore their executions levied after the execution of the mortgage are prior liens on the land. This case, therefore, is clearly distinguishable, as it is not one of wholly conflicting titles. The defendants asserted a lien upon the title of the mortgagor's grantor, not in hostility to his title, but in recognition of it, and the legal effect of their position was, not that they had a paramount title, but that to the extent of their claim, they had a paramount lien. Under these circumstances, the Court held that the mortgagee had the right to have the validity of this lien determined before the mortgaged property went to sale, as otherwise the satisfaction of the mortgage debt would be seriously imperilled; upon the special facts of the case, the determination of the priority of the lien appeared to the Court to be necessary in order to administer adequate relief to the parties to the suit. The first case, however, is not so distinguishable; but as is pointed out in Mr. Freeman's notes thereto, it is opposed to the weight of American authorities. As illustrations of cases in which the contrary view has been maintained, reference may be made to Banning v. Bradford (1875) 21 Minn. 308 : 18 Am Rep. 398, Eagle Fire Insurance Co. v. Lent (1837) 6 Paige 635, Wells v. American Mortgage Co. (1895) 109 Alabama 430, Boggs v. Fowler (1860) 16 California 559 : 76 Am. Dec. 561, San Francisco v. Lawton (1861) 18 California 465 : 79 Dec. 187. Strobe v. Downer (1860) 13 Wiscon. 10 : 80 Am. Dec 714., King v. Masson (1861) 42 Illinois 223 89 Am. Dec. 434 and Dial v. Reynolds (1877) 96 U.S. 340. In the last of these cases Mr. Justice Swayne in delivering the unanimous opinion of the nine judges of the Supreme Court of the United States, observed that 'in a foreclosure proceeding the plaintiff cannot make a person, who claims adversely to both the mortgagor and mortgagee a party and litigate and settle his rights in that case.' The reason assigned was that a suit so framed would be open to objection on the grounds of misjoinder and multifariousness (see Story on Equity Pleadings, 10th edition, Section 230), where it is stated on high authority that no person need be made a party to a suit, who claims under a title paramount to that brought forward and sought to be enforced in the' suit, or who claims under a prior title or encumbrance, not affected by the interests or relief sought by the bill; see also Sections 133, 158, 193, 213, 214, 225--229, 231 and 2845.
7. This was accepted as settled law in Peters v. Bouman (1878) 98 U.S. 60, and in a series of cases mentioned in Rose's notes to the case of Dial v. Reynolds (1877) 96 U.S. 340. Reference may, in this connection, be also made to Jones on Mortgages, 6th edition, Sections 1440 and 1589 and Pingrey on Mortgages, Section 1705. We may take it, therefore, that in American Jurisprudence adverse claimants cannot, as a rule, be made parties to a suit for foreclosure or sale for the purpose of litigating their titles.
8. It is hardly necessary for present purposes to investigate whether this rule has any and, if any, what exceptions. For example, it appears prima facie reasonable that, when a person who has been made a defendant in a foreclosure suit, has set up by answer a paramount title, and when that matter without objection has been gone into, he cannot, if defeated, rightly, ask, a reversal on the ground that the issue was not properly triable in the action. This may possibly be treated as an exception to the general rule. Again it may be reasonably contended that the title of one, who claims by adverse possession, may be adjudicated in a suit to foreclose, in case the validity of the original mortgage is not questioned. But whatever exceptions there may be to the general rule see the notes to the case of Provident Loan Trust Co. v. Marks (1898) 68 Am. St. Rep. 358, it appears to be quite clear that a litigation of the description now before us falls within the scope of the ordinary rule. A plaintiff mortgagee cannot be allowed so to frame his suit as to draw into controversy the title of a third party, who is in no way connected with the mortgage and who has set up a title paramount to that of the mortgagor and mortgagee. In a suit so framed, according to the plaintiff himself, such third party has no interest in the equity of redemption, which he seeks to put an end to. The plaintiff therefore cannot very consistently make such a stranger, who has no privity with him, a party to his suit to enforce the security. We must hold, accordingly, that the view taken by us is supported by the rule as laid down in England and also by a large preponderance of authority in America.
9. It was argued, however, by the learned Vakil for the plaintiff respondent, that the rule, as laid down in the English and the American Courts, is based upon an accidental circumstance, namely, upon the distinction between a Court of Equity and a Court of Law, which is recognised in those systems of Jurisprudence. He contended that a litigation of adverse title in suits for gale or foreclosure is refused, because equity will not usurp jurisdiction to try the validity of a legal title, which is independent of the mortgage and accrued prior to its execution. A Court of Equity has no jurisdiction to try the relative merits of legal titles claimed by adverse litigants in such a suit. Any holder of such a title, when brought in dispute, has a constitutional right to have its validity tried by a jury in an action of ejectment; and a Court of Law will furnish adequate remedy for testing the relative superiority of the respective titles of the claimants. The learned Vakil for the respondent strenuously contended that this distinction between the jurisdiction of a Court of Equity and a Court of Law is the real foundation of the rule as it obtains in the English and American Courts, and that consequently it ought not to be introduced into our system. Assuming, however, that the distinction, to which he has adverted, is a reason for the existence of the rule in the English and American Courts, we are unable to hold that this is the sole reason for the rule. In our opinion the rule is founded on two broad and intelligible grounds. In the first place, it is based on the reason that a suit to enforce a mortgage in which, the adverse claims of persons not privy to the mortgage and setting up a title 'paramount to that of the mortgagor and mortgagee, are sought to be investigated, is open to objection on the ground of misjoinder and multifariousness.
10. Under Sections 44 and 45 of our Civil Procedure Code there cannot be joinder of causes of action of this description see Sarada Sundari v. Sarada Prosad (1904) 2 C.L.J. 02. In the second place if adverse claims be allowed to be litigated in a mortgage suit, such claims may obviously be determined by a Court, which would have no jurisdiction to entertain a suit for their determination, if properly framed. The valuation of a suit to enforce a mortgage is dependent upon the amount claimed by the plaintiff, which may obviously have no relation to the value of the property in respect of which an adverse claim is set up. To take a concrete example in this very case, it is admitted that the value of the properties 1, 2 and 4 is such that, if a suit had been instituted for declaration of title and recovery of possession in respect of them, the suit would have been maintainable either in the Court of a Munsiff or of a Subordinate Judge, with a possible appeal to the District Judge But because the amount claimed by the plaintiff exceeds Rs. 5,000, the title to these properties which, according to the intention of the Legislature ought to be tried by a Munsiff or a Subordinate Judge with a possible first appeal to the District Judge, has been actually tried by a Subordinate Judge followed by an appeal to this Court. Similarly, the converse case might easily happen. In a suit to enforce a charge for a comparatively small amount of money upon a very valuable property instituted in the Court of a Munsiff an adverse claim may have to be investigated in respect of property, which would otherwise fall within the jurisdiction of a Subordinate Judge. It appears to be obvious that the rule is by no means a technical one, but is based upon perfectly intelligible and substantial grounds.
11. The learned Vakil for the respondent contended that one effect of the rule might be a multiplicity of suits. In some case?, no doubt this may be the result. But in other cases the adoption of the rule may render unnecessary a premature determination of complicated questions of title. For example, in the very before us, if the adverse claimants are dismissed from the suit and the mortgagee obtains the usual decree for sale against his mortgagor, there will be no further controversy in respect of the adverse title, if the mortgagor satisfies the decree, or again, if by the sale of the properties other than those in respect of which an adverse claim is set up, the mortgage decree is satisfied, no occasion may arise for the investigation of the validity of the adverse title. On the whole, we are unable to see that the effect of the rule is necessarily so mischievous as to compel us to put a different construction upon the terms of Section 85 of the Transfer of Property Act.
12. We would further add that, if the rule be regarded as largely one of convenience dependent upon the circumstances of each individual case for its application, so far as the present litigation is concerned, we feel no doubt whatever that it is extremely inconvenient to try the question of adverse title of the appellants upon which the plaintiff has invited the decision of the Court. We are not satisfied by any means that the title of the appellants has been properly tried in the Court below, and there are good grounds for the suggestion that a great many facts, which are absolutely essential for the determination of the question of the validity of the title of the appellants, will have to be investigated before that point can be satisfactorily disposed of. We must hold accordingly that the suit has not been rightly framed, and that the plaintiff ought not to have made the appellants parties' defendants for the determination of the adverse title set up by them.
13. It was argued on behalf of the plaintiff respondent that assuming that the leasehold interests created by the defendant No. 2 in favour of the defendant No. 1 were fictitious, the second defendant as also the appellants, who derive title from him, are estopped from setting up as against the plaintiff, respondent, their fictitious nature, and in support of this position reliance was placed upon the decision of the Judicial Committee in the case of Mahomed Mozufer Hossein v. Kishori Mohun Roy (1895) I.L.R. 22 Calc. 909 : L.R. 22. I.A. 129.
14. In our opinion it is not necessary to examine this matter at any length, because this contention is founded upon the assumption that the plaintiff is a bond fide purchaser for value without notice. So far as we can make out, no foundation has been laid in the present proceedings for any such case. The mortgage, which is the root of the title of the plaintiff, was executed in his favour about two years after the purchase by the Dutts, and we are not satisfied that, if the plaintiff had used due diligence and made the usual enquiries, which any prudent incumbrancer would have held, he could not have acquainted himself with the fact that the property had been dealt with as the property of the second defendant. No doubt, it was suggested in the course of the argument that, inasmuch as a portion of the consideration for the mortgage of 1893 was applied in satisfaction of a mortgage antecedent to the date of the purchase by the appellants in 1891, to that extent no question of notice arises. It is fruitless, however, to investigate this point further, because even assuming that there was any intention on the part of the respondent to keep alive the earlier security, there can be no doubt that the most substantial portion of the consideration for the mortgage was advanced after 1891, and, as has been already stated, the plaintiff has not established that he was a bond fide purchaser for value without notice.
15. The result, therefore, is that this appeal must be allowed and the decree of the Court below reversed. The Dutts will be dismissed from the suit and the plaintiff respondent must pay the appellants their costs both here and in the Court of first instance. A decree for sale of the mortgaged properties will be drawn up in this Court in favour of the plaintiff under Section 88 of the Transfer of Property Act as against the mortgagor, and the plaintiff will have his costs of this litigation as against the first defendant.
16. I agree.