Stephen and Vincent, JJ.
1. This is a suit brought for a declaration that the plaintiff as purchaser at a Government Revenue Sale is the proprietor of a 2 annas 5 gundas and odd share in a certain mouza and for possession thereof.
2. The facts, as far as they are material to the questions we have to decide, are as follows. The share in question originally belonged to one Musammat Razihan. In 1875, she created a molcarari of which her daughter Musammat Fazilan was tenant for life with a remainder to her son Waizuddin. In 1878, she transferred the proprietary interest to Musammat Fazilan. In 1884, Fazilan and Waizuddin mortgaged the share to Rai Radha Kissen Bahadur. In 1892, Mohanth Gayani Dass, the present defendant-respondent, purchased the interest of Waizuddin, that is his, equity of redemption in the molcarari. On the 15th of April 1899, Rai Radha Kissen got a decree absolute in a mortgage suit in which Waizuddin, Fazilan, and Gayani Dass, among others, were defendants, and became purchaser at the auction sale held in pursuance thereof, the sale certificate being dated 15th of September in the same year. Before this sale, however, the proprietary interest in the share in suit had been brought to sale at a Revenue Sale on the 25th April 1899, and had. been bought by one Dharam Singh. In 1900, there was another Revenue Sale and the plaintiff-appellant was the purchaser. Against his claim for possession, the defendant sets up the molcarari which he alleged is still in existence and which the plaintiff did not acquire by his purchase, which was subject to it as being a prior encumbrance. The lower Appellate Court has held that this contention must prevail, because the mokarari was in existence at the time of the second Revenue Sale. As he rightly says, the case turns on a question of merger, and we must see whether merger has or has not in fact occurred.
3. It is not suggested that the sale to Dharam Singh can effect the case, and it is not denied that the effect of the sale to Rai Radha Kissen in the mortgage suit was to vest in him the life estate of Musammat Fazilan, the reversionary interest of Waizuddin in the moharari, and also the proprietary interest of Razihan in the share in question.
4. In the first place, the appellant contends that the case is governed by the Transfer of Property Act, Section 111(d) in which case it is not denied that the moharari merged in the proprietary interest as soon as both came into Rai Radha Kissen's hands. The respondent argues, however, that Section 2(c) of that Act prevents the application of Section 111(d). Were it not for paragraph (d) of Section 2, we should be inclined to hold that section only saved' the effect of the repeals that it enacts in the cases specified: and that the word 'herein' meant 'in this section' and not 'in this Act.' Without, however, considering this view, which seems to be contrary to that of Banerjee J. in Promotho Nath Mitter v. Kali Prasanna Chowdhry (1901) I.L.R. 28 Calc. 744, 750, we do not see how to apply Clause (c) to the present case in the way that recommended itself to the lower Appellate Court. The section enacts that nothing 'herein (i.e., in the Act if we take it so) contained shall be deemed to effect any right or liability arising out of a legal relation constituted before this Act came into force.' The right or liability which the respondent desires to set up is the right of the original mokararidar, Waizuddin, to hold his moharari unaffected by Section 111(d) of the Act if the moharari and the parent estate both came into his hands, and this right, he contends, must be passed on to Rai Radha Kissen, the purchaser of the mokarari. This is, in our opinion, an incorrect view. The right in this case to which Clause (c) must apply, if it applies at all, is the right of Radha Kissen to the same effect, and it was constituted by his legal relation to the defendants in the mortgage suit at the time of the mortgage-sale, which took place after the passing of the Transfer of Property Act. We hold, therefore, that there is nothing to prevent Section 111(d) of the Act from applying and that a merger has taken place.
5. Even supposing that the case is taken out of the scope of Section 111(d), we are unable to agree with the decision of the lower Appellate Court. In Surja Narain Mandal v. Nanda La; Sinha (1906) I.L.R. 38 Calc. 1212, 1217, the decision in Raja Kishendatt Ram v. Raja Mumtaz Ali Khan (1879) I.L.R. 5 Calc. 198 is treated as an authority for the proposition that apart from the effect of the Transfer of Property Act a mokarari interest would merge in a superior tenure. It is true that in Jibanti Nath Khan v. Gohool Chunder Ghowdry (1891) I.L.R. 19 Calc. 760 and in Promotho Nath Mitter v. Kali Prasanna Ghowdhry (1901) I.L.R. 28 Cale. 744, a different opinion may seem to have been expressed, but in the earlier of these cases the owners of the zemindari interest elected to treat a putni interest they had acquired in their own zemindari as subsisting, and both cases were decided without reference to the case of Raja Kishendutt Ram v. Raja Mumtaz Ali Khan (1879) I.L.R. 5 Calc. 198. It is true, as has been argued before us, that that case was decided on the respective rights of a mortgagor and mortgagee, but the fact that the brits merged in the talukdars' interest is an essential portion of the grounds for the decision arrived at. Considering the authority of this case and the view that has been taken of its application in Surja Narain Mandal v. Nanda Lal Siriha (1906) I.L.R. 33 Calc. 1212) we consider that we must treat the mokarari has having merged in Rai Radha Kissen's superior interest. It has been attempted to show that Rai Radha-Kissen treated the mokarari interest as subsisting after his purchase, and that it would have been to his interest to do so; because in the event of a Revenue Sale of the share it would not have been affected. There is no direct evidence that he did so treat it, and the argument that he must be taken to have done so to protect himself against a Revenue Sale seems to be amply met by the fact that a Revenue Sale took place within a year of his purchase, and yet he has in his statement of claim expressly disclaimed any right to take advantage of the mokarari.
6. We, therefore, hold that the mokarari merged in the proprietary rights in the hands of Rai Radha Kissen. The appellant is, therefore, entitled to judgment and to his costs in this Court and both the Courts below.