Asutosh Mookerjee, J.
1. The subject matter of the litigation which has culminated in this appeal is a share of an estate which bore Tauzi No. 93 on the revenue roll of the Collector of Hughli about the middle of the last century and was held by two proprietors, Ramsundar Bose and Harachandra Bose. The amount of revenue originally payable was fixed at Rs. 2,998 1-10; this was subsequently reduced to Rs. 2,971-1-11 when part of the estate was acquired for public purposes under the Land Acquisition Act. On the 29th September 1864, upon an application made under Section 10 of Act XI, 1859, the share of Harachandra Bose which amounted to 8 as. 16 gds. of the entire estate (treated as 16 as.) was formed into a separate account and was described in the books of the Collector as Tauzi No. 93A with proportionate amount of revenue payable fixed at Rs. 1,648-15-5. Thenceforward Tauzi No. 93 became what is termed the residuary share and included only a 7 as. 4 gds. share of the original estate which was vested in Ramsundar Bose. To put the matter briefly, before the separate account had been opened under Section 10 of the Revenue Sale Law the expression Tauzi No 93 would be the fitting description of the entire estate, but since the opening of the separate account was sanctioned by the Collector, the term Tauzi No. 93 could be appropriately used to specify only the residuary share 7 as 4 gds. of Ramsundar Bose, while the term Tauzi No. 93A could be properly used to designate only the separated share 8 as. 16 gds. of Harachandra Bose. It is necessary to mention at this stage that Harachandra Bose left four sons, Kailas Chandra, Makhanlal, Benilal and Brajalal, each of whom inherited one-fourth of his properties, that is, each took a 2 as. 4 gds. share out of the 8 as. 16 gds. share which belonged to their father. It also transpires that these four brothers acquired from the representatives of Ramsundar Bose, 1 an. 13 gds. 1 ka. 1 kr. share (out of the 7 as. 4 gds. share), namely, 1 anna. 1 gd. 1 ka. 1 kr. share by a conveyance dated 19th September 1862, an 8 gds. share by another conveyance dated 9th September 1873, and a 4 gds. share at an execution sale. Each of the four sons of Harachandra Bose thus acquired, in addition to his ancestral share, 2 as. 4 gds. in Tauzi No. 93A, one-fourth of 1 anna 13 gds. 1 ka. 1 kr. share, that is, an 8 gds. 1 ka. 1 kr. share in Tauzi No. 93. The shares thus vested in Benilal Bose (the third son of Harachandra Bose) in the two Tauzis mentioned, passed on his death to his son Ramchandra Bose, the predecessor-in-interest of the first seven defendants in the present litigation. We now come to three transfers effected by Ramchandra Bose, which are of vital importance in the determination of the questions in controversy in this suit.
2. On the 7th February 1903, Ramchandra Bose executed in favour of Jagadiswar Ray, the predecessor-in-interest of the plaintiffs in the present litigation, a mortgage-bond to secure a loan of Rs. 5,999; the property hypothecated was described as his own share of 2 as. 4 gds. which his father had possessed in 'Tauzi No. 93.' It will be observed that, although the share inherited by the mortgagor from his father was originally included in Tauzi No. 93 (which comprised the whole estate), at the date of the mortgage that Tauzi had been broken up into two fragments, namely, Tauzi No. 93A (which was the separate account and included the ancestral share of the mortgagor) and Tauzi No. 93 (the residuary estate which included only the share of Ramchandra Bose). Consequently, if what was intended to be mortgaged was the ancestral 2 as. 4 gds. share of the mortgagor, the description that it was a share of 'Tauzi No. 93' (which, at the date of the transaction, had not the same connotation as it had prior to the opening of the separate account) might well lead to confusion:---indeed, as will presently appear, this has been the root of the present litigation.
3. The next document executed by Ramchandra Bose which deserves attention is a conveyance dated the 11th April 1911, in favour of Bipin Krishna Ray, the eighth defendant in the present litigation. This deed of absolute sale recites in full the history of the estate No. 93 and explains how the separate account Tauzi No. 93A. was carved thereout and the residuary estate Tauzi No. 93 was brought into existence. The document not only sets out the successive steps whereby the vendor had acquired an interest in both the Tauzis,---in the former by right of inheritance and in the latter by right of purchase,---but further mentions that on the 20th April 1868, a patni settlement was taken by Benilal Bose (one of the representatives of Harachandra Bone, the holder of the separate account Tauzi No 3 a) in respect of 1 anna 1 gd. 1 ka. 1 kr. share out of the 7 as. 4 gds. share whish constituted the residuary estate; this lease, though taken in the name of Ramlal Bose, was apparently for the benefit of himself and his three brothers. The deed finally recites two incumbrances (treated by the vendor, namely, first, a simple mortgage to Jagadiswar Ray of the 2 as. 4 gds. share inherited by him from his father and comprised in Tauzi No. 93A, and, secondly, a conditional mortgage dated 14th November 1909 in favour of J. F. Duncan of Calcutta, with respect to an 8 gds. 1 ka. 1 kr. share of his Zemindari interest and 5 gds. 1 ka. 1 kr. share of his patni interest; these, as we have seen, were comprised in the residuary estate Tauzi No. 93. The conveyance, after these recitals, proceeds finally to transfer to the purchaser, for a consideration of Rs. 1,000, the Zamindari right in 8 gds. 1 ka. 1 kr. share of the original Tauzi No. 93, deducting the 2 as. 4 gds. share out of the 8 as. 16 gds. share of Tauzi No. 93A, and the patni right in the 5 gds. 1 ka. 1 kr. share, together with a 2 as. 17 gds. 2 ka. 2 kr. share in certain resumed Chaukidari Chakran (service) lands. It is plain from the elaborate recitals in this document that the vendor did not keep bask from the purchaser any relevant information relating to the history of the title to the estate conveyed by him, and the purchaser was apprised how the original Tauzi No. 23 had been broken up into separate account, Tauzi No. 93A, (which wan subject to the mortgage in favour of Jagadiswar Ray) and the residuary estate Tauzi No. 93 which was transferred in part to the purchaser, subject to the patni lease in favour of Benilal Boss and the mortgage in favour of Da(sic)ncan.
4. The third document executed by Ramchandra Bose which requires examination is a conveyance dated 19th September 1911, in favour of Bipin Krishna Ray, the eighth defendant in this suit and the transferee under the conveyance dated 11th April 1911, whose provisions we have just analysed. This second conveyance purported to transfer the 2 as. 4 gds. share inherited by the vendor from his father and included in the separate account recorded as Tauzi No. 93A comprising the 8 as. 16 gds. share originally held by Harachandra Bose (the grandfather of the vendor) The consideration was stated to be Rs. 5,000 and the vendor declared that he had not encumbered the subject matter of the sale by mortgage or otherwise. This is remarkable in view of the statement in the previous conveyance of the 11th April 1911, that this ancestral share of 2 as. 4 gds. had been mortgaged with Jagadiswar Ray. We shall now proceed to describe the succession of events which have brought the contesting parties into Court.
5. On the 13th August 1909, the executors to the estate of Jagadiswar Ray (who had taken the mortgage of the 7th February 1903), instituted a suit against the mortgagor Ramchandra Bose to enforce the security. The original mortgage-bond was filed along with the plaint and in a schedule thereto the properties hypothecated ware described as appertaining to lot Srirampore 'bearing Tauzi No. 93, of the 16 as. share thereof defendant's own share is 2 as. 4 gds. and the proportionate annual revenue Rs. 412 for the said 2 as. 4 gds. share is payable into the Collectorate,' as the annual revenue of the said mahal is Rs. 2,972-1-10, payable into the Collectorate of Hughli. The suit was not defended, and on the 16th December 1909, 'the usual mortgage-decree was made, directing the sale of the mortgage properties; the description copied from the mortgage deed and inserted in the schedule to the plaint was reproduced in the schedule to the decree. The decree-holders applied in due course for execution of the mortgage decree, the sale proclamation was issued and the bid of Rs. 5000 offered by the decree holders was accepted on the 18th September 1911. At that stage, the decree-holders appear to have discovered that the property Bold had been described in the sale proclamation as Tauzi No. 93 and they seem to have apprehended that this might lead to future dispute as to what had actually been sold. They did not accordingly deposit the poundage fee end applied to the Court to re sell the mortgage property after a fresh sale proclamation had been duly published. The petition embodied the following prayer:
6. 'Be it declared that the property which had been mortgaged by the judgment-debtor was a 2 as. 4 gds. share of Tauzi No. 93 of the Collaborate of this District and the judgment-debtor having opened a seperate account, the said 2 as. 4 gds. share is now included within Tauzi No. 93 A. For this, the above 2 as. 4 gds. share of Tauzi No. 93 A belonging to the judgment debtor is liable to be sold by auction for the mortgage debt. The decree-holder's pray that the sale proclamation to that effect may be published.' On the 27th October 1911 the judgment-debtor lodged his objection against the issue of a fresh gala proclamation in an amended form and urged that as Tauzi No. 93 A had been formed, not after bat before the mortgage, the proposed amendment would be contrary to the terms of the mortgage-decree which was in exact conformity with the mortgage deed, whereby the mortgagor had hypothecated, not his interest in Tauzi No. 93 A bat only sash interest as he possessed at the time of the transaction in the residuary estate Tauzi No. 93. On the 3rd February 1912 the matter game up for consideration before the Execution Court. Meanwhile, the mortgagor had, as we have already seen, executed in favour of Bipin Krishna Ray the conveyance of 19th September 191(sic) which purported to transfer to him the 2 as. 4 gds. share of the vendor in Tauzi No. 93A described as free from encumbrances. Bipin Krishna Ray accordingly intervened in the execution proceedings; he contended that his position could not be -prejudiced by a summary order for amendment of the decree and the sale proclamation, and claimed the protection recorded to a bona fide purchaser for value without notice. The Execution Court held that the remedy of the decree holders was to obtain a rectification of the mortgage instrument and of the mortgage-decree and that an amended sale proclamation could not be issued until such rectification had been made. The result was that on the 3rd February 1912 the Subordinate Judge dismissed the application for sale of 2 as. 4 gds. share in Tauzi No. 93 A on the basis of an amended sale proclamation. On the a7th February 1914 the executors to the estate of the mortgagee instituted the present suit for rectification of the mortgage dated 7th February 1903, and for incidental reliefs. The first seven defendants ware the representatives of the mortgagor, Ramchandra Boss, who had died in the interval in the early part of the year 1913, and the eighth defendant was Bipin Krishna Ray who had taken a conveyance from the mortgagor on the 19th September, 1911. The representatives of the mortgagor did not enter appearance and the claim was contested by the eighth defendant alone. The nature of the objections raised by him are indicated in the issues which were framed in the following terms:
1. Is the suit maintainable in its present form and have the plaintiffs any cause of action for the suit?
2. Is the suit within time?
3. Is the suit bad for misjoinder of parties and causes of action as well as non-joinder of necessary party?
4. Are the plaintiffs estopped from asserting any lian on Tauzi No. 93 A?
5. Was the purchase by defendant No. 8 bona fide and for valuable consideration and are the plaintiffs estopped from questioning the validity of his purchase?
6. Was the mortgage of the 24th Magh 1309 legally executed ail for valuable consideration and was Tauzi No 93 A mortgaged or intended to be mortgaged by the said deed, and was the defendant No. 8 aware of the said mortgage?
7. Has the plaintiffs' lien been merged in the mortgage-deed and has the lien been extinguished by the sale in execution of that decree?
8. Can the plaintiffs get a decree for rectification as prayed for?
9. What relief, if any, are the plaintiffs entitled to?
7. The Subordinate Judge who tried the case in the first instance dismissed the suit as barred by limitation and did not express an opinion upon the merits. Upon appeal to this Court, Fletcher and Huda, J.J., held that as the question of limitation was not apparent on the face of the record, the case should go to trial on all the issues that had been framed in the suit between the parties. The appeal was accordingly allowed and the case was remanded for re consideration. The Subordinate Judge has now held that the 2 as. 4 gds. share of Ramchandra Boss which at the date of the mortgage transaction was comprised in Tauzi No. 93A was really intended to be mortgaged; and that the contesting defendant wag not a bona fide purchaser of that share for value without notice. In this view, the Subordinate Judge has decreed the claim in the following terms:
It is declared that the 2 as. 4 gds. share in the Mouzas Nij Serampur, Gangarambati and Habra in lot Serampur comprised in Tauzi No. 93 A. of the Hughli Collectorate owned by the deceased Ramchandra Bose was charged with the principal and interest on the mortgage-bond dated 24th Magh 1309 and that the description of the property in the bond wan erroneous and the property really intended to be mortgaged by it was the said share in Tauzi No. 93A: the mortgage bond and the decree in Suit No. 103 of 1903 be rectified accordingly.
8. The contesting defendant has on the present appeal assailed the decision of the Subordinate Judge as erroneous both on the fasts and the law. On his behalf, we have been pressed to hold that, there is no satisfactory evidence to show that what was intended to be hypothecated by the mortgagor and to be accepted as security by the mortgagee was the 2 as. 4 gds. share held by the borrower Ramchandra Bose in the separate account Tauzi No. 93A. It has further been urged in support of the appeal that, even if the alleged contract be established, the mortgage instrument cannot be rectified at this stage, after the security had merged in the decree, and the property had passed into the hands of a stranger who claimed to hold it as a bona fide purchaser for value without notice. The principles to be borne in mind in the determination of the questions thus raised are set out in Section 31 of the Specific Relief Act:
When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not truly express their intention, either party, or his representative in-interest, may institute a suit to have the instrument rectified; and if the Court find it clearly proved that there has been fraud or mistake in framing the instrument, and ascertain the real intention of the parties in executing the same, the Court may in its discretion rectify the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.
9. The first point for consideration is, whether, through a mutual mistake of the parties, the mortgage instrument in this Base does not truly express their intention; in other words, the plaintiffs who seek the assistance of the Court for the rectification of the written instrument must clearly prove that there was a prior complete agreement which according to the common intention was embodied in writing, but by reason of mistake in framing the writing, this did not express or give effect to the agreement. As James, V. C., tersely expressed the substance of the matter in Mackenzie v. Coulson (1839) 8 Eq. 863. 'Courts of Equity do not rectify contracts, they may and do rectify instruments purporting to have been made in pursuance of the terms of contracts.' To the same effect are the observations of Chelmsford, L. C., in Fowler v. Fowler (1859) 4 Dc. G. & J. 250 : 45 E. R. 97 : 124 R. R. 234. 'The power which the Court possesses of re-forming written agreements where there has been an omission or insertion of stipulations contrary to the intention of the parties and under a mutual mistake, is one which has been frequently and most usefully exercised. But it is also one which should be used with extreme care and caution. To substitute a new agreement for one which the parties have deliberately subscribed ought only to be permitted upon evidence of a different intention of the clearest and most satisfactory description. Lord Thurlow's language is very strong on this subject; he says, 'the evidence which goes to prove that the words taken down in writing were contrary to the concurrent intention of all parties must be strong, irrefragable evidence;' Shelburne v. Inchiqain (1784) 1 Erc. C. C. 338 at p 340 : 28 E. R. 1166. And this expression of Lord Thurlow is mentioned by Lord Eldon in Townshend (Marquis) v. Stangroom (1801) 6 Ves. 328 at p. 334 : 31 E. R. 1076 : 5 R. R. 312. without disapprobation. If, however, Lord Thurlow used the word 'irrefragable' in its ordinary meaning, to describe evidence which cannot be refuted or overthrown, his language would require some qualification; but it is probable that he only meant that the mistake mast be proved by something more than the highest degree of probability, and that it must be such as to leave no fair and reasonable doubt upon the mind that the deed does not embody the final intention of the parties. It is clear that a person who seeks to rectify a deed upon the ground of mistake must be required to establish is the clearest act moat satisfactory manner, that the alleged intention to which he desires it to be made conformable continued concurrently in the minds of all parties down to the time of its execution, and also must be able to shew exactly and precisely the form to which the deed ought to be brought. For there is a material difference between setting aside an instrument and rectifying it on the ground of mistake. In the latter case, you can only act upon the mutual and concurrent intention of all parties for whom the Court is virtually making a new written agreement.' The true position then is, that in every case where rectification is sought, it must clearly and satisfactorily appear that the precise terms of the contrast had been orally agreed upon and that the writing afterwards signed failed to be, as it was intended, an execution of such previous agreement, but, on the contrary, expressed a different contrast. Tested from this point of view, the case for the plaintiffs is abundantly made out. In the first place, there is reliable oral evidence of the negotiations antecedent to the execution of the mortgage instrument, which shows that what was intended to be offered and accepted as security was the 2 as. 4 gds. ancestral share of the mortgagor in the original estate Tauzi No. 93 which at the time of the mortgage was part of the separate account Tauzi No. 93A; oral evidence was plainly admissible for this purpose Balkishen Das v. W. F. Legge 22 A. 149 (P. C.) : 4 C. W. N. 153 : 2 Bom. L. R. 523 27 I. A. 58 : 7 Sar. P. C. J. 601 : 9 Ind. Dec. (N. S.) 1130., Jiwraj Singhji v. Norwich Assurance Co. 5 Bom. L. R. 853. In the second place, we have the admission of the mortgagor in the conveyance executed by him on the 11th April 1911 that he had mortgaged to Jagadiswar Roy the 2 as. 4 gds. share obtained by him from his father in Tauzi No. 93A, In the third place, the surrounding circum stances point to the same conclusion. At the date of the mortgage, the mortgagor did not possess a 2 as 4 gds. share in what was then Tauzi No. 93, that is, the residuary estate. To hold that, notwithstanding this circumstance, he professed to hypothecate a share in excess of what he owned in fact, would be to attribute to him a design to defraud the mortgagee; there is no indication that he harboured sash intention; on the other hand, the subsequent admission contained in the conveyance of the 11th April 1911 militates against a possible theory of fraud. Consequently, if, we look at the surrounding circumstances existing when the contract was entered into, the situation of the parties, the subject-matter of the contrast, the provisions and expressions of the instrument, and if, further, we call in aid the acts done under the instrument, and contemporaneous writings made between the parties near or subsequent to the time when the deed was executed, we cannot but come to the conclusion that the evidence is clear and convincing that the mortgage instrument does not correctly describe the property which the mortgagor and mortgagee agreed should be given and accepted as security. Here then is an instance, not of mistake as to the identity of the property itself, but of a misdescription of it in the written instrument. This is precisely the class of cases where re-formation is decreed, provided the mistake was mutual: Walden v. Skinner (1880) 101 U. S. 577 : 25 Law. Ed. 968. Adams v. Handerson (1897) 168 U. S. 573 : 42 Law. Ed, 584., and examples are by no means rare where correction has been made in the description of the premises in deeds, mortgages, conveyances, particularly mistakes in the number of the township, section, lot, block, boundary line, or street. That the mistake was mutual in this case cannot we think be seriously disputed. Both parties, as is amply clear on the evidence, had the common intention that the 2 as. 4 gds. share of the mortgagor inherited by him from his father should be hypothecated. That share, at the time of the transaction, was included in Tauzi No. 93A and not in Tauzi No. 83. The writer of the deed, however, described it as included in Tauzi No. 93. There is no direct evidence to show how this error was brought about, nor is it necessary to indulge in speculation on that point. The only question is, whether the mistake was mutual, that is, a mistake reciprocal and common to both parties; in other words, whether each alike laboured under the same misconception in respect to the terms of the written instrument. To put the matter concisely, was there a common intention different from the expressed intention and a common mistaken supposition that it was rightly expressed. The answer must be in the affirmative; for this, it is not necessary to hold that a mutual mistake of the agents of the parties is always necessarily a mistake of the parties; but undoubtedly it would be in the case where the error was committed by a writer who acted as common agent of both parties in drafting the instrument. The essence of the matter is that, mutuality of mistake might arise from the fast that the mistake was made by a writer who acted as mutual agent of both parties in reducing the contract to the form of a written instrument. Where there is unilateral mistake, rectification is refused on the ground that, if the Court were to re-form the writing to make it record with the intent of one party only to the agreement, who averred and proved that he signed it as it was written, by mistake, when it exactly expressed the agreement as understood by the other party, the writing when so altered would be just as far from expressing the agreement of the parties as it was before, and the Court would have been engaged in what would be a singular task for a Court of Equity to undertake, namely, doing right to one party at the expense of a precisely equal wrong to the other. No such consideration obviously arises in eases of the type now before us, for it cannot be urged here that in granting relief to the plaintiff on the ground of his mistake, the Court would be imposing upon the other party the erroneous conception of his opponent. It may further be added that if the theory be adopted that the mistake was brought about deliberately by the mortgagor, his conduct might be deemed fraudulent, so that on establishment of fraud the mortgagee might claim rectification mistake or no mistake. Consequently, where the defendant is shown to have been aware not only that the instrument did not express the real agreement but also that the plaintiff was ignorant of the discrepancy between the instrument and the agreement, the case is clearly one for re-formation: Clark v. Girdwood (1877) 7 Ch. D. 9 : 47 L. J. Ch. 116 : 37 L. T. 614 : 26 W. R. 90. Lovssy v. Smith (1880) 15 Ch. D. 655, 49 L. J. Ch. 809 : 43 L. T. 240 : 28 W. R. 979. Corley v. Stafford (Lord) (1857) 1 De G. & J. 238 : 26 L. J. Ch. 865 : 3 Jur. (N. S.) 1225 : 5 W. R. 646 : 44 E. R. 714 : 118 R. R., Tucker v. Bennett (1888) 38 Ch. D. 1 : 57 L. J. Ch. 507, 58 L. T. 650. There is thus no escape from the conclusion that the circumstances of the case before us attract the operation of the rule that, in order to justify rectification. there must be proof of a common intention different from the expressed intention and a common mistaken supposition that the intention is rightly expressed in the instrument; it matters not by whom the actual oversight or error was made which caused the expression to be wrong.
10. We have next to consider, whether the Court should refuse to rectify the mortgage instrument on the ground that such rectification will prejudice the rights acquired by a third person in good faith and for value. The Subordinate Judge has answered this question against the eighth defendant. In his view, the purchase of the mortgage property by the contesting defendant was made neither in good faith good for value. The evidence as to the payment of consideration has been placed before us and the judgment of the Sub-ordinate Judge has been criticised on the ground that he has rejected postive testimony on mere suspicion, a course emphatically disapproved by the Judicial Committee on more than one occasion; as was observed by Sir Lawrence Jenkins in Mina Kumari Bibi v. Bijoy Singh : (1917)19BOMLR424 and by Lord Shaw in Muhammad Mahbub Ali Khan v. Bharat Indu 53 Ind. Cas. 54; (1919) M. W. N. 507 : 23 C. W. N. 321 (P. C.). the decision of the Court should rest, not upon suspicion but upon legal grounds established by legal testimony; this follows the earlier dicta of Lord Westbury in Sreemanchunder Dey v. Gopaulchunder Chuckerbutty 7 W. R. 10 (P. C.) : 11 M. I. A. 28 : 2 Sar. P. C. J. 215 : 1 Suth. P. C. J. 651 : 20 E. R. 11. and Lord Hobhouse in Uman Parshad v. Gandharp Singh 15 C. 20 (P. C) : 14 I. A. 127 : 11 Ind. Jur. 474 : 5 Sar. P. C. J. 71; Rafique & Jackson's P. C. No. 98 : 7 Ind. Dec. (N. S.) 599. There is considerable force in this contention. The evidence of payment of consideration by cheque on the Chartered Bank cannot be brushed aside, and there is no solid foundation laid in the evidence to support the hypothesis that the purchaser received back the money from the vendor. If that theory had been satisfactorily made out, there would be no real transfer at all- the transaction could then have been branded as fictitious, brought about by conspiracy between the vendor and the purchaser with a view to throw an effective obstacle in the way of the mortgagee. Bat the evidence does not prove conclusively that the sale was colourable, although the genuineness of the transfer is undoubtedly open to grave suspicion. It is needless however, to discuss further, whether the transfer was for value, because there is no room for serious controversy that the purchase cannot be deemed to have been made in good faith. There is no satisfactory evidence that the eighth defend ant made the usual enquiries at the time of his alleged purchase. We have, further, the significant fact that the conveyance which he had taken five months earlier on the 11th April 1911 actually obtained a recital that this ancestral share of Ramachandra Bose had bean mortgaged to Jagadiswar Ray. Direct evidence is not available to prove that he remembered this recital when he took the second conveyance on the 19th September 1911. If there had been such evidence, the proof of knowledge would have been at least as effective as notice and would thus have been completely destructive of the plea of purchase in good faith. The conception of notice was introduced into law and the rules concerning it were established, from considerations of policy and expediency based upon the common experience of mankind. Notice, even when actual, is not necessarily equivalent to knowledge; but the same effects must be attributed to it which would naturally flow from knowledge. It is treated as a representative of, or substitute for, actual knowledge, and if, therefore, in its essential nature inferior to knowledge. It necessarily follows that whenever a party has obtained a full knowledge, although not in accordance with the rules which define, the nature of notice and regulate the mode of its being given and received, there h no longer any need of invoking the legal conception of notice; the rules concerning it no loger apply; the very fact for which it is intended as a substitute has been more accurately accomplished is another manner. To such up in one statement, if the party has in any way obtained the full knowledge, thou same results must necessarily and even in a higher degree, be attributed to it---the very substance itself---which are, from motives of general policy, attributed to notice as its representative and substitute. But it is not necessary in the present case to establish that the contesting defendant had actual knowledge of the existence of the mortgage, for it is plain that the recital in the conveyance accepted by him on the 11th April 1911 did in law constitute constructive notice. I am not unmindful that the conveyance of the 11th April 1911 related to a share of Tauzi No. 93 whereas the conveyance of the 19th September 1911 was in respect of a share of Tauzi No. 93A The two Tauzis, however, were not essentially distinct properties within the meaning of the well known principle enunciated by Lord Redesdale in Hamilton v. Royse 1804 2 Sch. & Lef. 315 and quoted with approval by Smith, M. R. in Tressilian v. Caniffe (1855) 4 Ir. Ch. R. 399.: 'If a man purchases an estate under a deed, which happens to relate also to other lands not comprised in that purchase, and afterwards purchases the other lands to which an apparent title is made, independent of that deed; the former notice of the deed will not of itself affect him in the second transaction; for he was not bound to carry in his recollection those parts of a deed which had no relation to the particular purchase he was then about, nor to take notice of more of the deed than affected his then purchase.' The principle in essence is that notice to a purchaser by his title papers in one transaction will not be notice to him in an independent subsequent transaction, in which the instruments containing the recitals are not necessary to his title; but that he is charged constructively with notice, merely of that which affects the purchase of the property in the chain of title of which the paper forms a necessary link. Consequently, where one is purchasing a particular piece of real estate, and his title-deeds recite a charge upon, or equitable interest in, another piece in favour of a third party, such recitals would not affect him with notice of such charge or interest, in the event of subsequent purchase from the holder of the legal title to the other property. Ha is not presumed to carry the knowledge thus imputed to him in the first transaction in his memory until the second purchase has been effected. The reason and limits of this rule were lucidly put by Rogers, J., in Boggs v. Varner (1843) 6 Wa. & Sor. 473., when he was asked to receive in evidence recitals in the title papers to a different piece of property from that in suit with a view to charge a purchaser with notice of any antecedent unregistered instrument or an equitable interest: 'The evidence would lead to dangerous consequences, for it is impossible for any one to recollect the reseals in deeds under which he may claim. Let this be held to be admissible and competent to affect a subsequent purchaser with notice, it would follow that no man can safely purchase until a most careful examination and inspection of every deed to which he may be a party and under which he claims.' The case before us is obviouly distinguishable and is not affected by these considerations. Under the Revenue Sale Law, notwithstanding that a separate account has been opened, the separate account and the residuary estate continue ultimately liable to the State for the entire revenue, and in certain specified contingencies the entire estate is liable to be exposed for sale by the Revenue Authorities for the realisation of arrears. Consequently, in order to trace the history of either fragment of the estate, an examination of the antecedent dealings, in respect of both would be undertaken by the prudent investor. Thus, under ordinary circumstances, knowledge acquired 'in course of transactions with regard to either fragment of the estate may well be deemed as acquired in course of transactions with regard to the some property' or 'in the investigation of the same chain of title.' The conclusion thus appears inevitable that the contesting defendant is not entitled to the protection extended to a puchaser in good faith and for value.
11. Finally, it has been urged, as a last resort on behalf of the contesting defendant, that even though it should be clearly established that through the mutual mistake of the parties to the mortgage-contract, the instrument in writing did not truly express their real intention, the Court cannot at any rate the Court should not, in its discretion, rectify the mortgage-deed, inasmuch as a decree has already been made thereon by a competent Court. Such decree, it has been argued, has extinguished the mortgage-security, and reformation at this stage would in essence be rectification of the decree of one Court by another, contrary to well established principles. In support of this agreement, reference has been made to the decisions of the Judicial Committee in Het Ram v. Shadi Ram 45 Ind. Cas. 708 : 5 P. L. W. 88 : 16 A. L. J. 607 : 35 M. L. J. 1 : 21 M. L. T. 94 28 C. L. J. 188; (19 8 M. W. N. 518 : 0 Bom. L. R. 798 : 22 C. V. N. 10 3 : 40 A. 407 : 9 L. W. 550 : 12 Bur. L. T. 72 : 45 I. A. 180 (P. C.). and Matru Mal v. Durga Kunwar 55 Ind. Cas. 969; (1920) M. W. N. 388 : 18 A. L. J. 396 : 38 M. L. J. 419 : 11 L. W. 529 : 2 U. P. L. R. (P. C. 75 : 22 Bom. L. R. 533 : 32 C. L. J. 121 : 42 A. 344 : 47 I. A. 71 : 27 M. L. T. 319 : 25 C. W. N. 397 (P. C.)., and of this Court in Sadho Misser v. Gulab Singh 3 C. W. N. 375., Jogeswar Atha v. Ganga Bishnu 8 C. W. N. 473. Chand Mea v. Asima Banu 10 C. W. N. 1024 : 3 C. L. J. 48n., Shonda Singh v. Dowlat Roy 14 Ind. Cas. 93 : 15 C. L. J. 675 : 17 C. W. N. and Kusadhai v. Braja Mohan 31 Ind. Cas. 13 : 48 C. 217 : 10 C. W. N. 1225. Not one of these decisions, it has been conceded, is directly in point, and the events which led up to the litigation in each of these oases bear no analogy to those antecedent to the present snit; but an attempt has been made to invoke the aid of the general principles which, it is said, may fairly be extracted from the oases mentioned. In Het Ram v. Shadi Ram 45 Ind. Cas. 708 : 5 P. L. W. 88 : 16 A. L. J. 607 : 35 M. L. J. 1 : 21 M. L. T. 94 28 C. L. J. 188; (19 8 M. W. N. 518 : 0 Bom. L. R. 798 : 22 C. V. N. 10 3 : 40 A. 407 : 9 L. W. 550 : 12 Bur. L. T. 72 : 45 I. A. 180 (P. C.). Viscount Haldane observed that the effect of a decree made under Section 89 of the Transfer of Property Act for the sale of mortgage property is to substitute the right of sale thereby conferred upon the mortgagee for his rights under the mortgage which are thereupon extinguished. This principle which was also recognised in Matru Mal v. Durga Kunwar 55 Ind. Cas. 969; (1920) M. W. N. 388 : 18 A. L. J. 396 : 38 M. L. J. 419 : 11 L. W. 529 : 2 U. P. L. R. (P. C. 75 : 22 Bom. L. R. 533 : 32 C. L. J. 121 : 42 A. 344 : 47 I. A. 71 : 27 M. L. T. 319 : 25 C. W. N. 397 (P. C.). clearly does not touch the question before us, namely, the competence of a Court to direct rectification of a mortgage-instrument when the elements specified in Section 31 of the Specific Relief Act have been established. No doubt, when such rectification has been made by order of Court, what the effect thereof may be on the decree previously made is a question which we shall presently have to consider. In Sadho Misser v. Gulab Singh 3 C. W. N. 375. it was ruled that the only ways in which a decree may be set aside by a party thereto are by appeal, by proceedings under Section 108, Civil Procedure Code (1882), and similar sections, and by application for review; if the decree is not tainted by fraud, no suit lies to Bet it aside. In that case, an amendment had been made, in the pleadings without notice to a party who had not entered appearance in the suit, and a decree was ultimately made in accordance with the amended pleading. The absent defendant thereupon instituted a suit to set aside the decree on the ground that as he had not been served with notice of the applition for amendment of the plaint, be was not bound by the decree and was entitled to treat it as not affecting his rights. Trevelyan and Beverley, JJ., held that as no attempt had been made to set aside the decree as provided by law, the suit could not be maintained. In Jogeswar Atha v. Ganga Bishnu 8 C. W. N. 473. it was held that a suit lies in a Civil Court to rectify a mistake in a decree, it appears that in a previous mortgage suit, a property which was correctly described in the plaint as property No. 4 was by mistake described as property No. 3 in the written statement. This property was ultimately released as not liable to be foreclosed, but was described as property No. 3 in the judgment, and the error was reproduced in the decree. A suit was thereupon instituted for rectification of the error. The Subordinate Judge dismissed the suit. On appeal to this Court Mitra, J., was pressed to follow the rule recognised in Ainsworth v. Wilding (1896) 1 Ch. 673 : 55 L. J. Ch. 432 : 74 L. T. 193 : 44 W. R. 540. and to hold that the suit could be maintained for rectification of the error. This contention was overruled, On appeal under the Letters Patent, Maclean, C. J., (Pargiter, J., concurring) reversed this decision and held that the suit lay to rectify the mistake in the decree. The Chief Justice pointed out that the suit was of a civil nature within the meaning of Section 11, Civil Procedure Code (1882) and was cognizable by a Civil Court, as there was no enactment in force to bar the suit, In Chand Mea v. Asima Banu 10 C. W. N. 1024 : 3 C. L. J. 48n. Ghose and Parlier, JJ., referred to the decisions in Sadho Mister v. Gulab Singh 3 C. W. N. 375. and Jogeswar Atha v. Ganga Bishnu 8 C. W. N. 473., and held that it could not be broadly laid down that any error in a decree may be challenged by a separate suit. There a decree for ejectment had been made in a suit for rent, though there was no prayer for ejectment in the plaint. The defendant applied for review of judgment, but was unsuccessful. He then instituted a suit to set aside the decree, The Court held that, in these circumstances, a separate suit was not maintainable to set aside a decree not tainted by fraud, obtained in the presence of both parties and apparently conclusive between them. In Bhonda Singh v. Dowlat Roy 14 Ind. Cas. 93 : 15 C. L. J. 675 : 17 C. W. N., Brett and Carnduff, JJ., referred to the earlier eases just analysed and held that a suit was not maintainable in a Civil Court for amending the judgment and decree previously passed in a suit between the same parties by another Civil Court of competent jurisdiction, on the ground that a mistake had been made by the Judge in his judgment and decree. It was observed that as the Court had jurisdiction and authority to make the decree actually passed, another suit could not be instituted to set aside or modify that decree on the ground that the Judge had committed an error; in support of this view, reference was made to the remarks of the Judicial Committee in Sri Gopal v. Pirthi Singh 24 A. 429 : 4 Bom. L. R 827 : 6 C. W. N. 889 : 29 I. A. 118 : 8 Sar. P. C. J. 293 (P. C). In Kusodhai v. Braja Mohan 31 Ind. Cas. 13 : 48 C. 217 : 10 C. W. N. 1225. Jenkins, C. J., held that though a decree can be set aside by suit on proof of fraud of the required character, a suit does not lie to set aside a decree in a previous suit on the ground that the Judge in passing that decree had made a mistake. The decision in Jogeswar Atha v. Ganga Bishnu 8 C. W. N. 473. was distinguished: it was also explained that the case of Ainsworth v. Wilding (1896) 1 Ch. 673 : 55 L. J. Ch. 432 : 74 L. T. 193 : 44 W. R. 540. was an instance of a consent-decree and consequently belong to the class of decisions typified by Hudtersfield Ranking Co. v. Lister (1895) 2 Ch. 278 : 64 L. J. Ch. 523 : 12 R. 331 : 72 L. T. 703 : 43 W. R. 567. and Wilding v. Saunderson (1895) 2 Ch. 534 : 77 L. T. 57 : 66 L. J. Ch. 584 : 45 W. R. 675. These cases show that an order made in an action by consent and based upon and intended to carry out an agreement come to between the parties, can be set aside on any ground (such as mistake) on which an agreement in the terms of the order could be set aside. But these cases do not show that a decree after contest can be set aside or rectified in a fresh suit on the ground that the Judge was mistaken though his decree accurately expressed his intention: Preston Banking Co. v. Allsup (1895) 1 Ch. 141 : 64 L. J. Ch. 196 : 12 R. 51 : 71 L. T. 708 : 43 W. R. 231. Jenkins, C. J., added that if the alleged mistake of a Judge is to furnish a disappointed litigant with a fresh starting point for keeping his opponent in Court, then his misfortune would be gravely increased to the public detriment. These principles are clearly inapplicable to cases of the type now before ns. Here the question of fundamental importance, stripped of all technicalities, is, whether the mutual mistake of the parties to the mortgage transition manifested in the mortgage deed, which has extended into judicial proceedings, automatically as it were, without mistake on the part of the Judge, is still capable of rectification. On principle, the answer should clearly be in the affirmative, for, as Neville, J,, observed in Thompson v. Bickman (1967) 1 Ch. 550 at p. 562 : 76 L. J. Ch. 254 : 96 L. T. 454 : 23 T. L. R. 311., to grant relief by way of rectification where the error has crept into one document and refuse it where it is embodied in two, is inconsistent with equitable principles, for equity regards the substance rather than the form of a transaction. There is no substantial reason for instance, why we should not hold that where the same mutual mistake has been repeated in each one of a chain of conveyances, under such circumstances as to entitle any one of the purchasers to a reformation as against his immediate vendor, equity may work back through all, and entitle the last purchaser to a reformation against the original grantor. Similarly, it may be held as a general rule that if there is a mutual mistake in a mortgage in the description of property and the same mistake is reproduced in the decree, equity may go back to the original transaction and re-form both the mortgage and the decree so as to make them conform to the intention of the parties concerned; and this view was actually adopted in Balaprasad v. Kanoo 14 Ind. Cas. 407 : 8 N. L. R. 13. We do not overlook, however, that if the decree has been executed and title has passed to a purchaser, fresh considerations may arise and questions of some nicety which require examination from a new standpoint may present themselves for solution. It may be contended, for instance, in such a case where the purchaser did not intend to buy land other than that described erroneously in the mortgage, that it would not be fair to rectify the sale-certificate. In such a contingency, comprehensive relief by reformation of the description running through all the papers in the judicial proceeding may well have to be refused, the proper course for the party aggrieved may be to obtain re-formation of the mortgage and to institute new proceedings for the enforcement of the rectified instrument. Oases of this description may give rise to questions of great complexity and have led to a marked divergence of judicial opinion in the Courts of the United States, as is amply indicated by the notes to the decisions in Stewart v. Wilson (1904) 141 Ala. 405 : 109 Am. St. Rep. 33., Dillart v. Jones (1902) 229 III. 119 : 11 Ann. Cas. 802. Fisher v. Wilson (1911) 62 Fla. 472 : 29 Ann. Cas. 1003 : 13 L. R. A. (N. S.) 90. It is not necessary, however, for our present purpose to attempt an exhaustive formulation of the principles which may have to be invoked when the mutual mistake has been re-porduced from the mortgage-deed into the mortgage decree and thereafter into the certificate granted on the consequent public sale. The case before us is fairly simple; the parties have not yet reached beyond the stage of the mortgage-decree and the commencement of execution proceedings thereon. We are thus not sailed upon to rectify the sale-certificate granted to a purchaser; and it cannot be urged that a decree granting such drastic relief as rectification of the sole-certificate would invest the purchaser with title to property which was k6ver advertised, offered for sale, or gold to him, and which might have been purchased by others at a higher figure, had it been correctly described in the sale proclamation. We ate consequently of opinion that the mortgage-instrument should be rectified and that on the basis thereof similar rectification should be made in the pleadings in the mortgage-suit, in the mortgage-decree and in the proceedings for execution thereof, which were suspended as a result of the cider of the 3rd February 1912 and will now stand revived and after amendment will be continued in accordance with law: Cf. Shaikh Kamaruddin Ahmad v. Jawahir Lal 32 I. A. 102 : 27 A. 334 : 1 C. L. J. 381 : 2 A. L. J. 307 : 9 C. W. N. 601 : 15 M. L. J, 258 : 7 Bom. L. R. 433 : 8 Sar. P. C. J. 810 (P. C.)., Rameshvar Singh [Maharaja of Darbhanga] v. Romeshvar Singh : (1921)23BOMLR721 . As the contesting defendant has purchased the mortgage property during the pendency of the excution proceedings, he will be bound thereby, for in the case of a mortgage-suit the lis pendens dose not terminate till the security has been realised for the satisfaction of the judgment-debt: Surjiram Marwari v. Barhonmdeo Persad 2 C. L. J. 288. Parsotom Narain v. Chheda Lal 29 A. 76 : 3 A. L. J. 675; A. W. N. (1906) 283. Faiyaz Husain Khan v. Munshi Frag Narain 84 I. A. 102 : 29 A. 339 : 5 C. L. J. 563 : 9 Bom. L. R. 656; I. C. W. N. 561 : 4 A. L. J. 344 : 17 M. L. J. 263 (P. C.). Loke Nath Sahu v. Achutananda Das 2 Ind. Cas. 85 : 15 C. L. J. 391. The appellant cannot have any legitimate grievance against the application of the doctrine of lis pendens because the principle of the decision in Loke Nath Sahu v. Achutananda Das 2 Ind. Cas. 85 : 15 C. L. J. 391., namely, that misdescription of property involved in a litigation is sufficient to render the doctrine of lit pendens inapplicable cannot be invoked by a person who has either knowledge or notice of the true state of things (Bennet on Lis Pendens, pages 154-159).
12. The conclusion follows that the decree made by the Subordinate Judge is substantially correct and this appeal must be dismissed with costs.
13. I agree and have nothing to add.