Salil Kumar Datta, J.
1. This is an appeal by the plaintiff against concurrent judgment of affirmance. The plaintiff instituted a suit on the following allegations. The suit land belonged to Nripendra Nath Ghose and Kanai Lal Mustafi from whom the plaintiff took settlement on July 10, 1948, on payment of a selami of Rs. 185/- at an annual rental of Rs. 36/-. Since that date he had been in possession by cultivation in khas or through bargadars. The plaintiff also got his name mutated in the records of the landlord and had been paying rent in respect of the suit lands while he was in possession of the suit land in that way. On July 1, 1956 the defendants challenged title of the plaintiff in the suit land and made futile attempts of obstruction in his possession of the suit land and also thereafter the defendant threatened the plaintiff with dispossession. It was stated that the defendant had never any title or possession of the suit land and as a cloud had been cast on the plaintiff's title in respect of the suit land the plaintiff instituted this suit on July 9, 1956 claiming a declaration of his tenancy right in the suit land and also a decree confirming his possession. There was also a prayer for permanent injunction on the defendants restraining them from interfering with the plaintiff's possession.
2. The suit was contested by the defendants who filed a written statement denying all material allegations in the plaint. It was stated that the alleged settlement with the plaintiff was a fraudulent settlement and it was further stated that at the time when the lease was purported to have been made to the plaintiff, his lessors had no title to the suit land. In 1353/54 B. S. the said lessors of the plaintiff sold the land to one Bhudev. Bhudev again transferred the suit lands to the plaintiff's lessors by two kobalas dated June 23, 1953 and September 29, 1954. On the said respective dates again the plaintiff's lessors sold his right, title and interest to the defendants and since then the defendants had been in possession of the suit properties. It was accordingly submitted that suit should be dismissed.
3. It appears that an amendment was made to the plaint on November 13, 1959. It was alleged by way of further amendment of the plaint that the plaintiff's lessors fraudulently represented that they had title to the suit land and on the basis of such representation received selami from the plaintiff and gave a registered lease to the plaintiff mentioned in the plaint in 1355 B. S. and also referred to above. It appears that prior to the lease the plaintiff's lessors had sold their interest in the land to one Bhudev and thereafter Bhudev again sold the suit land to the plaintiff lessors on the dates mentioned above. Accordingly under Section 43 of the Transfer of Property Act the plaintiff's interest became absolute and as the defendants had purchased the interest of the plaintiff's lessors with the knowledge of this lease infavour of the plaintiff, they were also bound by the said lease.
4. The suit was tried on evidence and the learned Munsif was of opinion that in the original plaint there was no whisper about the applicability of Section 43 of the Transfer of Property Act. This section was invoked by amendment of the plaint. It was held that the plaintiff did not exercise his option before November 13, 1959 and that being the position the plaintiff could not acquire interest of his lessors which was purchased by the defendants. The suit was accordingly dismissed.
5. An appeal was preferred against this decision and the appellate Court found as to possession as follows:
'The evidence of possession led by the plaintiff coupled with the rent receipts proves to the hilt that on the basis of the settlement granted by the deed of lease, the plaintiff, however came to the possession of the land on the date of lease, continued the same on payment of rent to the lessors and was in possession of it on the date of the institution of the suit. The evidence of possession led by the defendants is not only shaky and unconvincing but also false............'
The appellate Court however was of opinion that the acquisition of title by his lessors subsequent to the settlement did not accrue any interest to the plaintiff automatically but the transferee was required under provisions of Section 43 of the Act to exercise his option by demand for acquiring title under the lease. So long as he did not exercise for option, the transferee was to hold the property transferred in trust for the transferor during the subsistence of contract of transfer provided the right to exercise the option was not defeated by subsequent bona fide transfer for consideration without notice of the exercise of the option. The Court of appeal further found that admittedly there was no demand in the exercise of his option by the plaintiff for his acquisition of the interest granted by his lessors in suit land. The suit could not be regarded as an evidence of his exercise of the option because the suit was for a declaration of his interest and the interest could not accrue on the basis of the after acquired title of the lessors unless a demand was made to that effect in exercise of the option. It was further held that the defendants were in the know of the lease in favour of the plaintiff and his possession thereof and as such they were not bona fide purchaser without notice of the plaintiff's right of option. Even then as the plaintiff did not exercise his option prior to the institution of the suit he was not entitled to a decree and the suit was rightly dismissed. The appeal was accordingly dismissed and the present appeal is by the plaintiff against this decision.
6. Before we consider the question on merits it is necessary to consider the questionof maintainability of the appeal in this Court. It would appear that this appeal was filed on July 19, 1963. On April 12, 1972 an application was filed by one Jutbika Rani Dey in this Court for being added as party appellant to the appeal on the ground that she had purchased the suit property for consideration by a registered kobala dated July 17, 1963. This Court allowed this application by an order dated May 19, 1972 observing further that the addition will be subject to any objection that may be taken at the time of final hearing by any party. Mr. Monmohan Mukherjee, learned Advocate appearing for the defendant-respondent has contended that Juthika had no right to be impleaded in this proceeding. He contended that Order 22, Rule 10 of the Code of Civil Procedure has no application as the transaction did not take place during the pendency of any proceedings. The judgment under appeal was passed on 29th March, 1963 and this appeal was filed on 19th July, 1963 so that on I7th July, 1963 when the plaintiff sold the property in suit there was no pending proceeding before any Court. Accordingly it was contended that Juthika could not be impleaded in this proceeding.
7. Mr. Satya Priya Ghose learned Advocate for the appellants has referred me to the decision of Saila Bala Dassi v. Sm Nirmala Sundari Dassi reported in : 1SCR1287 in which the appellants made an application for substitution in place of the second respondent or be brought in as an additional respondent. The Court held that the application could not be sustained under Order 22, Rule 10 but the application fell within Section 146 of the Civil P. C., as an appeal is a proceeding within the meaning of that section and the right to file an appeal carries with it the right to continue an appeal which has been filed by the person under whom the appellant claimed. In this case if the plaintiff appellant was entitled to prefer an appeal and such appeal was pending, then certainly Juthika would be able to continue the appeal as claiming through the plaintiff appellant on authority of the above decision under Section 146.
8. The next point for consideration is therefore whether the plaintiff was entitled in law to proceed with the appeal. According to Mr. Mukherjee the plaintiff had no subsisting interest in the suit property on the date he filed appeal having disposed of all his interest in the suit land only two days prior to the filing of the appeal. As he had no further interest in the suit property he had no right to prefer an appeal after parting with his interest therein. The document of sale by the plaintiff to Juthika has been produced in Court by consent of the parties, the said document is marked as Ext. 6. By this document it appears the plaintiff sold his right, title and interest in the property on a consideration of Rs. 200/- and in the schedule of the kobala the interest of the plaintiff is described as raivati sthitiban interest subject to the payment of rent of Rs. 3 and 3 pies payable to the landlord now to the Collector.
9. Sections 96 and 100 of the Civil P. C. provides for appeals and it has been held that a person who was a party to the suit or his legal representative or who has any interest in the subject-matter of the suit or would be prejudicially affected by the decree shall be entitled to prefer an appeal. The plaintiff himself is the appellant and in view of the fact that he sold the property for consideration he would certainly be taken to be prejudicially affected by the decree under appeal if he fails to prefer such appeal or in case his appeal fails. Under the provisions of Section 55(2) of the Transfer of Property Act, the seller in the absence of any contract to the contrary is to be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same. The interests which the plaintiff purports to transfer by Ext. 6 is the raiyati sthitiban interest held under the State of West Bengal. It would therefore appear that he was certainly a person who was affected by the decree under appeal and would be liable for consequence if the decree that he had no title to the property sold was allowed to stand. Accordingly I am of opinion that the plaintiff was aggrieved by the decree and notwithstanding the sale deed Ext. 6 the plaintiff was competent in law to institute the appeal against the decree against him. If the appeal was competent by the plaintiff Juthika was also entitled to be impleaded as an appellant claiming under the plaintiff under Section 146 and on the basis of the authority of the Supreme Court referred to above as already noted.
10. The further question that comes up for consideration is whether under Section 43 of the Transfer of Property Act it is necessary for the transferee to make a demand in exercise of or showing his option for acquisition of the title which his transferor subsequently acquires. The section reads as follows :
'43. Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any 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 a transferee in good faith for consideration without notice of the existence of such option.'
11. The trial Court on an interpretation of the section has come to the conclusion that there must be an exercise of option by demand which is requisite under that section. The appellate Court is of the opinion that there was no demand in exercise of option in the present case and the institution of the suit cannot be recorded as exercise of his option because the suit is for declaration of his interest in the lease but the interest cannot accrue to him on the basis of the after-acquired title of his lessor unless a demand was made to that effect in exercise of the option.
12. There is no dispute and it is settled law that subsequent acquisition of title by the transferor does not automatically invest the transferee with the title so acquired as in English law, and for such acquisition there must be an option by the transferee under our law. The section however does not lay down that exercise of such option can only be by a demand by the transferee, and in fact the section mentions only about the option of the transferee and not exercise of option by him. Any action by the transferee indicative of such option will, in my opinion, be sufficient, when a transferor transfers any immoveable property as his own, to operate on any interest in such property which he subsequently acquires. Such option may be indicated by any overt action by the transferee and an institution of a suit for declaration of title in the immoveable property may be one such overt act of option for the purposes of the section and no formal demand in exercise of the option is necessary or contemplated under the section. It was observed so in Gomathy Ammal v. Rukmini Amma, AIR 1967 Ker 58 in the following words:
'The manifestation of the will of the transferee to have the transfer to operate, may be deemed to be an exercise of the option, but this is not to say, that he must adhere to any specific form for such exercise. He need only require or demand of the transferor that such interest shall pass to him. This idea runs through the second part of the section, which speaks of the existence of the said option, not the exercise of the option ............'
13. It is true that in the present case there was no demand in exercise of the option, but the admitted facts are that the plaintiff had been in possession of the suit property since his lease of 1948 and such possession had been continuing when the suit was fifed in 1956 long after the sales in favour of the plaintiff's lessors and by them to the defendants 1953/1954. Such action on the part of the plaintiff amply indicates and makes out the option by him under the law which would enable him to the benefit under Section 43 and no formal demand for the purpose is necessary.
14. For the above reasons I am of opinion that the courts below were wrong in rejecting the plaintiff's claim on a wrong conception of 'option' under the law which is not warranted by the relevant provisions of the statute. The judgments of the Courts below cannot accordingly be sustained. Theappeal in the premises succeeds and is allowed and the judgments and decrees of the courts below are set aside and the plaintiff's suit is decreed. There will be no order for costs in this Court in the circumstances.
15. Leave under Clause 15 of the Letters Patent is prayed for and is granted.