Tottenham and Ghose, JJ.
1. This was a suit brought by the plaintiff-respondent in this appeal, to have it declared that certain properties mortgaged to him by a deed executed by Mussamut Dulhin Bishnath Koer on behalf of Dulpati Singh, her adopted son, during his minority are really owned by the latter as adopted son of the late Aribhunjun Singh who was the husband of Bishnath Koer; and are liable to be sold in execution of the plaintiff's decree obtained upon the said mortgage bond on the 26th of June, 1882.
2. The properties in question having been attached in execution of that decree were released by the Court on the 29th February, 1884, in accordance with a claim put forward by the defendant No. 2, appellant before us, who had purchased the same at auction in November, 1880, in execution of decrees held by other persons against Ripubhunjun Singh. The sale certificates are dated the 20th of January, 1881. This suit was brought in August 1884 within one year after the decision of the claim case.
3. Ripubhunjun Singh was the brother of Aribhunjun; and in the absence of any son of the latter would admittedly have been the sole reversionary heir upon the death of the widow, Mussamut Bishnath Koer, which took place in 1878.
4. That the properties in suit did belong to the separate share of Aribhunjun is not now disputed, and the difficulty of the case as now before us lies in the questions raised as to the validity of the adoption of Dulpati Singh; and as to the right of the defendants-appellants to impugn it at the present day, he having been since 1868, and still being, de facto owner,' as adopted son of Aribhunjun Singh, of the estate left by him. The appellants are two of the defendants, viz., Parbhu Lal, the person who succeeded in the claim case, and one Baijnath Sahai, who was made a defendant on the allegation that Parbbu Lal was his benamidar, and that even the decree-holders, in execution of whose decrees the sales to Parbhu Lal had taken place, were also his benamindars. He appeals, apparently, because the lower Court, 'holding that Parbhu Lal was his benamidar, made him jointly liable for the plaintiff's costs, the suit being decreed in favour of the latter. Eipubhunjun Singh was made a defendant, but he died during the pendency of the suit and before any witnesses had been examined.
5. Baijnath Sahai was one of the defendants in the plaintiff's respondent's previous suit on the mortgage bond ; being so made because he had purchased the mortgagor's interest in one of the mouzabs mortgaged to plaintiff--not, however, one of those embraced by the present suit.
6. In consequence of this circumstance the plaintiff contended that the subject of the present suit was res judicata as against both Baijnath Sahai and his alleged benamidar Parbhu Lai; and the lower Court was of opinion that they were in fact bound by the decree of June 26tb, 1882, which affirmed the mortgage lien against all the mouzahs. The other findings of the lower Court which have been impugned in this appeal or in the cross objections to the judgment taken by the plaintiff-respondent were as follows:
It found against the plaintiff on the issue as to the validity of the adoption of Dulpati Singh, and against him it found that the defendants Parbhu Lal or Raijnath Sahai, as auction-purchaser of the rights and interest of Ripubhunjun, were not estopped by the conduct of the latter from denying the validity of the adoption.
7. On the other hand the Court found in favour of the plaintiff that, though Dulpati was not validly adopted, yet be had acquired a good title to the property by more than 12 years' adverse possession before the purchase of the properties in suit by the defendant Parbhu Lal. It found also in plaintiff's favour that the loan for which the mortgage was executed was made for the purpose of liquidating debts for which Aribhunjun's estate was liable, such debts being of a legitimate character; and that the mortgage was made by Bishnath Koer with the consent of Eipubhunjun, the reversioner, in the absence of a validly adopted son : and held that there was thus a valid charge created in plaintiff's favour against Aribhunjun's estate, whether Dulpati Singh had been legally adopted, or whether, in the absence of such adoption, the deed be regarded as that of the widow herself, made with the consent of the reversioner, and thus operating as a valid transfer of the property. Upon these considerations the lower Court decreed the plaintiff's suit.
8. The mortgage bond, it is to be observed, covered seven mouzahs, of which five only are the subject of this suit. For, of the other two, the one named Simeria has already been purchased by the plaintiff in execution of another decree, and the one named Teknia, so far as Dulpati Singh was concerned, has been purchased long ago by defendant Baijnath Sahai.
9. The present decree of the lower Court makes the other five mouzahs wholly liable for the mortgage debt, and provides that any balance left outstanding after their sale shall be saddled upon Simeria and Teknia by apportionment; and the appellants object to this form of decree even if the mortgage be held to be valid.
10. We now proceed to deal with the various points necessary for the decision of the appeal.
11. During the hearing, after the learned Counsel for the appellants had concluded his opening address, we intimated our concurrence with the lower Court in the finding that the defendant Parbhu Lal was the benamidar of Baijnath Sahai; and the reasons given by the Subordinate Judge commend themselves generally to our judgment. We do not commit ourselves to all that he wrote upon this subject; but we may state shortly that the evidence satisfies us that Parbhu Lal was himself a man of no means, and that the money used for the purchase was Baijnath Sahai's ; and the very fact that the two have joined in this appeal goes to confirm our impression that Parbhu Lal has no interest in the matter apart from Baijnath.
12. We are, however, unable to concur with the lower Court in the opinion that the decree in the mortgage suit, dated 26th June, 1882, is a res judicata as against Parbhu Lal and Baijnath Sahai, as to the liability to sale of the five mouzahs now in suit. It is true that Baijnath was a defendant in that suit; but he was so made only as representing the mouzah Teknia. In that suit he had nothing to do with the five mouzahs, which are the subject of the present one. The mortgage suit was instituted in July, 1880, but the title to these mouzahs, sold as Eipubhunjun's to Parbhu Lai, did not vest in him until the 20th of January, 1881, the date of the sale certificates. Eipubhunjun was not made a party to that suit as he ought to have been, and his interest was in no way represented, nor did the plaintiff choose to bring in Parbhu Lal as defendant in the suit, although the sale to that person was made subject to the plaintiff's mortgage. The decree, therefore, could not bind Eipubhunjun, nor could it bind Parbhu Lal or Baijnath.
13. We have next to consider the plea of estoppel against the defendant-appellant, founded on the conduct of Eipubhunjun Singh. It is said that he by his representations that Dulpati Singh was the adopted son of Aribhunjun, and that there were pressing debts due by the estate of Aribhunjun, induced the plaintiff to advance to Mussamut Bishnath Koer the money which formed the consideration for the bond executed by her as guardian of Dulpati Singh. That this was so we can have no doubt upon the evidence of the plaintiff, and of other witnesses. It is expressly stated also by Eipubhunjun himself in his deposition made in Parbhu Lai's claim case on the 27th of February, 1884, he being dead when this suit was tried, a copy of that deposition was put in, and is exhibit No. 65 for the plaintiff. The learned Counsel for the applicants contended, upon authorities which he laid before us, that, inasmuch as it was dear upon the plaintiff's own showing that in making the loan he had not acted exclusively upon the representations of Ripubhunjun Singh, there would be no estoppel even against him; and that even if Ripubhunjun would be estopped from denying the adoption, yet the purchaser at an execution sale of the right and interests of Ripubhunjun would not be estopped. Ha showed that an ex8cution-creditor would not be estopped, and submitted that a purchaser was in no worse position. The learned Counsel relied upon the English cases of Freeman v. Cooke 2 Ex. Rep. 654 and Richards v. Johnston 4 H. & N. 660 and cited as an authority Bigelow's Law of Estoppel, and he referred to the Indian case of Baboo Batiee Pershad v. Moonshee Syud Abdool Hye 25 W.R. 192 and to a case relied on by the other side also, namely, Poreshnath Mookerjee v. Anathnath Deb 9 I.A. 147 and Anathnath Deb v. Bishtu Ghunder Roy 4 C. 783.
14. On the other side Baboo Mohesh Ghunder Ohowdhry for the respondent treated the last-named case as in his favour, as it held that a mortgagee purchasing the mortgaged property in execution of his own decree was estopped by the same considerations which would have estopped his mortgagor from denying a particular state of things as to the property mortgaged. He also referred us to an unreported judgment of a Division Bench of this Court in S.A. No. 572 of 1884, in which the learned Judges held, in a similar case in which Ripubhunjun Singh we concerned, that not only he but his creditor would be estopped by his conduct from denying the adoption of Dulpati Singh. That case was the converse of the present one; for the plaintiffs were judgment-creditors of Ripubhunjun, and sought to make liable for his debts property which had been, sold in execution of a decree against the minor Dulpati Singh and purchased by the defendants. The learned Judges in that case said that, in the absence of fraud and collusion between Ripubhunjun and Mussamut Bishnath Koer, there could be no doubt that the plaintiff in that suit was in no better position than Ripubhunjun would have been freehand sought to recover the property, and they proceeded to hold that Ripubhunjun, by his silent acquiescence and conduct in recognizing Dulpati as adopted son. would have been debarred from suing to recover the property. We find ourselves quite unable to accept this dictum in regard to estoppel, so far as the defendant, the auction-purchaser, is concerned. For estoppel is purely a personal bar operating against the person whose conduct constitutes it, and against his privies and representatives. That it will not operate as against a simple money-creditor as such is established by the case of Richards v. Johnston 4 H. & N. 660, cited by the learned Counsel for the appellants. The case of a mortgagee would seem to be different, for he derives his title directly from the debtor, and will be bound by the previous conduct of the debtor in respect of the property mortgaged See Poreshnath Mookerjee v. Anathnath Deb 9 I.A 147. But what we have to decide in the present case is, whether, assuming that Ripubhunjun was estopped from depyingthe validity of Dulpati's adoption, the purchaser of his right and interest at a sale in execution of a decree is similarly estopned by he conduct of Ripubhunjun. The simple question is whether the execution-purchaser is the representative of Ripubhunjun within the meaning of Section 115 of the Indian Evidence Act.
15. It seems to us that he is not so merely in his capacity as purchaser in execution. The case last cited--Poreshnath Mookerjee v. Anathnath Deb 9 I.A. 147 shows that, if he had also been mortgagee of the property from Ripubhunjun, he might beheld to bi his representative under Section 115; but we are awara of no authority for holding that the sitnpla fact of purchase at an execution sale will make him the representative for the purpase of that sestion of the judgrnenc-dabtar. On the contrary the exeaation purchaser derives his title by operation of law adversely to judgment-debtor. Sea Dinendronath Sannyal v. Ramacomar Ghose 8 I.A. 65; see also Mussumat Imrit Koer v. Lalla Debee Pershad Singh 18 W.R. 200.
16. We may refer also to the case of Srimati Ananda Mayi Dasi v. Dharandra Chundm Mookerjee 8 B.L.R. 122, in which their Lordships of the Judicial Committee say, at page 127 : 'The title of a judgment-creditor, or a purchaser under a judgment decree, cannot be put on the' same footing as the title of a mortgagee, or of a parson claiming under a voluntary alienation from the mortgagor. They are of opinion that the possession of a purchaser under such circumstances is really not the possession of a person holding in privity with the mortgagor.'
17. Upon these considerations then we hold in favour of the appellants that they are not the representatives of Ripubhunjun in such a sense asto' be estopped by any conduct of his from disputing the validity of the adoption of Dulpati Singh.
18. It appears to us that the plaintiff must stand or fall by the mortgage bond upon which his decree of the 26th June, 1832, we basel. He can euccaed only if that bond created a valid charge upon the propartias mortgaged. If the adoption of Dulpati Singh was good in law, then there can be no question, but that the mortgage bond executed by his adootive mother, who was his duly appointed guar Jean under Act XL of 1858, and had obtained the sanction of the District Judga to her executing the bond, created a valid change. Bat if the adoption was bid in law, it would still have to be considered whether the bond may still be a valid one % reason of Dulaati Singh's title to the property having since become perfected as agiinst Ripubnunjun by lapse of time and adversa pissession, or by reason that, in the absensa of a valid adoption, Mussamut Bishnath Koer, the widow, fully represented the estate of Aribhnnjua for the legal necessities of which she executed the bond in question with the asseni of the reversioner. And we are disposed to think that it is really upon this last-named ground that we ought to uphold the judgment of the lower Court in favour of the plaintiff. As regards the adoption, the lower Court has disbelieved the evidence adduced in support of the proposition that Aribhunjun before his death received the child Dulpati, and made him over to his wife, desiring her to adopt him. The evidence on this matter has been disbelieved on each occasion when the fact has been attempted to be proved, and it is impossible to avoid seeing how suspicious it is, especially in the absence ,of evidence from particular members of the family, who, had the fact bean true, would have been the first to come forward to prove it on a previous occasion when the question was raised in 1877, but who did not do so, and who were dead when this suit was tried in 1835. We refar especially to the widow Bishnath Koer and Ripubhunjun him self, and there is at least some a priori improbability in the story that the boy Aribhunjun seized with cholera while returning to his home after his marriage ceremony, and dying the following day, should have bean able to turn his thoughts to the subject of adopting a son, and should have gone through the forms of receiving the child and placing it in the lao of his young wifa.
19. We are certainly not prepared to reverse the finding of the lover Court on this point.
20. But it is contended that under the Mitakshara law the consent of the husband is not necessary, under all circumstances, if the adoption takes place after his death, as was the case in the present instance. It is urged that, after a man's death without issue, the consent of his near kindred is sufficient to authorize an adoption by his widow; and that their consent will operate as his own, since it was incumbent upon him as a religious duty to have a son, and it must be presumed that he accorded his sanction; to his widow to adopt a son if she had none of her own. The authority for this contention is in a passage of the Viramitrodoya, p. 115, of Baboo Golab Chunder Sircar's translation. This, no doubt, is an authority recognized in the Benares School; and the doctrine has received judicial sanction in respect of adoptions in the Dravida country in Southern India--See The Collector of Madura v. Moothoo Ramalinga Sathupathyi 12 M.I.A. 397. But we are not aware that this doctrine has been recognized judicially as efficacious in Northern India, though Sir Thomas Strange seems to have thought that it was applicable wherever the Benares School of law prevailed. As far as we are aware the doctrine has cot been hitherto sanctioned by usage in the part of the country to which the present case belongs ; and there is the authority of the Dattaka Mimansai (sec. I, paras. 15, 16, and the following paras.) which is opposed to it. And moreover it was negatived in the case decided by the late Sudder Dewany Adawlut, in Raja Shumshere Mull v. Ranee Dilraj Konwar 2 Sel. Rep. 169 : 6 I.D. (O.S.) 523 though in that case the Viramitrodoya was quoted by the pundits. We should therefore, hesitate to decide that this adoption was good in law without, any express consent of Aribhunjun. We prefer, however, not to decide the question at all in the present also another cognate question, which was raised by Baboo Mohesh Chunder Chowdhry, whether the recognition of the adoption by Ripubhunjun, the then reversioner, would render the adoption valid, because we think this appeal may be satisfactorily disposed of on another ground.
21. The lower Court was of opinion that Dulpati Singh had acquired an absolute title by more than 12 years' possession, from the date of his alleged adoption in 1867, before the purchase of the defendant Raijnath in 1880 of the rights of Ripubhunjan in the property; and that on this ground the defendants could not resist the claim of the plaintiff to have the property sold as Dulpati's.
22. We are not prepared to accept this view of the matter, for, unless Dulpati Singh's title had become perfected by limitation before Bisbnatb Koer's death, the reversioner Ripubhunjun would, under the present law of limitation, Act XV of 1877, Article 141, be entitled to 12 years within which to bring his suit for recovery of possession of the estate. The adoption in this case took place in 1867, and the widow died in 1878, i.e., within 12 years from the adoption. No doubt the sale to the defendant took place in 1880, or more than 12 years after the adoption but it obvious that this circumstance would not affect or alter the rights of the parties. It was, however, contended for the plaintiff that the adoption having been allowed to remain unquestioned for more than 12 years, it ware not be competent to Ripubhunjun to set it aside, and that he could rot recover the estate from the bands of Dulpati Singh without setting aside the adeption; and in support of this view the decision of the Judicial Committee in the case of Jagadamba Chowdhrani v. Dakhina Mohun L.R. 13 I.A. 84 : 13 C. 303 was relied upon. Now, it is to be observed, that this decision was passed with reference to the provisions of the Limitation Act; IX of 1871, which in Article 129 provided chat suits to set aside an adoption should be brought within 12 years from the date of adaption. The adoption as already noticed took place is 1867, and before the title under the adoption could become perfect by efflux of time under the Act of 1871, the law of 1877 (Act XV) was parsed, which in Article 118 provides that suits, for obtaining a declaration that an alleged adoption is invalid, should be brought within six years from the date when the adoption becomes known to the plaintiff. Taking this article along with arts, 140 and 141, it appears to us that, when a person claiming to be the next reversionary heir, and being aware of an adoption having taken plaqe seeks to obtain a bare declaratory relief in the lifetime of the widow, he is bound to bring his suit within six years from the time of his knowledge; but that this would not prevent the reversioner from suing to obtain possession of the estate, when it falls into possession, or when the widow dies, if the suit is commenced within twelve years from that time. In such a suit, the party claiming under the adoption might set it up in answer to the plaintiff's case, and when set up, the validity or otherwise of the adoption would be investigated and the case accordingly determined. We observe that; the title of the defendant, as representing the interest of the reversioner, accrued within two years of the time when the succession opened out, and he is the party now in possession of the property. It is the plaintiff who seeks to apply the law of limitation against him. And we are in no way prepared to hold that in a case like this the law of limitation can be successfully pleaded.
23. Nevertheless, we are of opinion, as already stated, that the plaintiff is entitled to succeed in this suit upon the ground that is being assumed that the adoption of Dulpati Singh was invalid, the widow Bishnath Koer was competent for legal necessity to mortgage the estate of Aribbunjun. We concur with the lower Court in finding that there was at the time of the mortgige such pressing necessity as justified her in raising money on mortgage for the benefit of the estate. And we find that the deed was executed by Bishnath Koer in her own name though she represented herself to be the mother and guardian of Dalati Singh, her a looted son. Her dead would be binding on him if he really held the position ascribed to him; and if he did not, we think her deed must equally, under the circumstances, be held to have bound the estate an the reversioner. Sue executed the deed ostensibly as holding the de facto title of manager only; but that deed will not be the les3 binding if she really possessed at that time the de jure title to the property. This doctrine seams to us to be clearly expressed by the Judicial Committee of the Privy Council in the oft-quoted case of Hunooman Pershad Pandey v. Mussumat Babooee Mwnraj Koonioaree 6 M.I.A. 393.
24. In that case the mortgage-deed had been execute by the widow desoribing herself as proprietor. It was held that, though she was in fact only manager on behalf of her son, yet the mortgage was binding upon the latter, being one that in her capacity of manager she might properly have executed for the benefit of his estate. It seems to us that in this case there is still stronger reason for holding that, whereas the widow's title was even better than that set out in the mortgage-deed, the mortgagee is not to be defeated for that reason.
25. But, apart from this view of the matter, it seems to us that the transaction ought to be supported upon another ground. The estate being, according to thedefenoant's case, in the widow Bishnath Koer she could have, even if there was do legal necessity, alienated it, with the consent of the then reversionary bier, to anybody she pleased. And in the event of this being done, the alienation would be binding upon the reversioner, whoever he might be, when the succession opened out see the case of Nobokishore Sarma Boy v. Hari Nath Surma Boy 10 C. 1102 decided by a Full Bench of this Court]. Now it appears perfectly clear upon the evidence that Ripubhunjun Singh, who was then the sole reversionary heir, not only induced the plaintiff to lend the money but brought about the transaction, and took an active part in the execution of the mortgage-deed; and there can be, therefore, no doubt that the transaction was entered into by the widow with the consent of Bipubhunjun Singh. True it is, as already noticed, that the heed purported to be on behalf of the minor Dulpati Singh, but what we have to lock to is not the form but the substance, of the transaction. It appears to us that, considering the transaction from a prompter point of view, it created a valid charge upon the property, and the result is that the defendant, the purchaser of the right title and interest of Ripubhunjun Singh, who, failing the adoption, became the heir upon the death of the widow, would only take the property subject to the said charge.
26. We think, therefore, that the plaintiff is entitled to the decree he has-obtained declaring his right to follow the properties in suit for the satisfaction of the mortgage debt. But we are of opinion that the decree was wrong, in so far as it ordered that the whole debt should, in the first instance, be saddled on the five mezuzahs in suit, and that they should behold for the recovery of the whole amount other properties included m the mortgage deed, and one of which is now in the possession of the plaintiff himself, being relieved for the present of their share of the burden.
27. Mouzah Simeria Ojha with Putti Simeria Ojha is now the property of the plaintiff, and mouzah Teknia had become the property of the defendant Baijnath Sahai subject to the mortgage, before the plaintiff brought) his first suit on the mortgage bond. We think that the defendant-appellant is entitled to demand that the portion of the mortgage property which is now the plaintiff's should bear its fair proportion of the debt. And we observe that in the plaint there was no prayer for any such decree as the lower Court has made, as to the order in which the mortgage property is to be sold in satisfaction of the debt. We must therefore cancel this portion of the decree, and we remit the case to the lower Court that it may take an account of the value of the various properties mortgaged, and apportion the proper share of the debt to each of the mouzahs covered by the mortgage, and declare the plaintiff entitled to charge the remaining mouzahs mortgaged with their proportionate share of the debt; and to make a final decree accordingly.
28. With this slight modification we affirm the judgment of the lower Court with costs of this appeal.