1. The subject matter of the litigation which has culminated in this appeal is landed property situated in the eastern suburb of this city The property belonged originally to one Mather Ostagar whose name appears in the following pedigree:
m. Lutfar Rahman
| | |
Mujibar Rahman Asia Sufia.
2. On the 14th January 1857 Ostagar transferred the property to his wife, Karimannessa, in lieu of dower, by, a document described as a hiba-bil-ewaz (gift for an exchange). On the 26th June 1899 a conveyance of the property is said to have been executed by Karimannessa to her grand-daughters Asia, and Sufia. Whether his deed was in fact executed by Kar man nessa and, if so, whether it was voluntarily executed by her, are matters in controversy in this litigation. It is sufficient to mention at this stage that the document was registered on the 26th July 1899. On the 22nd March 1900 Asia was, on her application, appointed by the District Judge as guardian under the Guardians and Wards Act, 1890, to administer the estate of her infant sister, Sufia, during her minority, which,' it was stated in the certificate, would continue until the 13th December 1906. On the 16th May, 1900, Asia applied to the District Judge for permission to sell the half share of the infant in the disputed property. On the 19th June 1900 Karimannessa filed a petition of objection, stating that neither Sufia nor the petitioner had title to the house and land and that Sufia was not an infant when Asia was appointed her guardian. The District Judge overruled the opposition and granted permission to Asia to sell the property on behalf of her ward. On the 14th September 1900 Asia informed the District Judge that she had not been able to secure a purchaser and asked for permission to raise money by mortgage of the property. This application was granted. Subsequently, a purchaser was found and on the 22nd December 1900 the District Judge sanctioned a sale instead of a mortgage. These proceedings show that the transfer was effected with a view to pay marriage expenses, of the minor and debts and costs of litigation. A conveyance, which appears to have been drawn up on the 21st December 1900,in anticipation of the sanction of the District Judge, was thereupon executed by Asia for herself and as guardian of her sister, Sufia, and the entire interest of the two sisters was transferred to the purchaser, Muhammad Manatumbi, the brother do Abdul Kader, (the husband of Asia). The conveyance was registered on the 3rd January 1901.The endorsement of the Registrar shows that the registration took place in the very house which stands on the disputed land where the two ladies resided. The oral evidence makes it abundantly clear that the old lady Karimannessa also lived in the same house at that time. The property thus purchased by Muhammad Manatumbi was subject to the payment of Government revenue. He accordingly paid such revenue to the Collector on the 13th March 1902, though, even after his purchase the names of his vendors were registered by the Collector on the 13th September 1901, and on the 24th March, 1902, he paid a further sum to the Collector as redemption fee, so that the land might thenceforth be revenue-free in perpetuity. On the 5th April 1902 the Collector issued the usual redemption certificate to Manatumbi. Meanwhile, Manatumbi had, on the 6th November 1901, taken a kabuliyat from one Golam Rahman, who occupied a part of the premises as tenant. The evidence further leaves no room for doubt that Manatumbi got his name registered in the books of the Calcutta Corporation the rate bills were thereupon issued in his name and were paid by him. His name was, as we have seen already, registered in the books of the Collector, and the notice was served on him on the 26th March 1908. when the number of the holding was changed after the survey of the City by Mr. Smart, (sic), 1909 Manatumbi brought a suit against Golam Rahman, who had attorned to him, for recovery of arrears of rent for the period between October 1903 and June 1909. Golam Rahman, notwithstanding that he had executed and registered the labuliyat, denied the relationship of landlord and tenant, and asserted that he held as tenant under Karimannessa as his landlord. Karimannessa was not joined as a party to the suit, but she was examined as a witness on behalf of the tenant defendant. She denied that she had conveyed the land and house to any one or that she had gone to a registration office to create a document. She admitted, however, that Abdul Kader had realised rent from the tenants and had asserted for 10 or 12 years that he had purchased the house. The Trial Court declined to accept her version and held that the then plaintiff had established his purchase and attornment by the then defendant. The result was that the rent suit was decreed on the 17th December 1909. Manatumbi, thus secured in his possession of the property, executed a conveyance in favour of Abdul Kader on the 30th March 1980, who, in his turn, mortgaged the property to the present plaintiff on the 7th July 1910, as security for a loan of Rs. 2,600. On the 27th June 1911 Karimannessa instituted a suit against Abdul Kader for cancellation of the successive instruments of transfer, for establishment of her title, and for recovery of possession. She repudiated the conveyance, dated the 26th June 1899, in favour of her granddaughters Asia and Sufia as a forgery and without consideration. She also challenged the conveyances executed by Asia and Sufia on the 22nd December 1900 in favour of Manatumbi, and on the 30th March 1910 by Manatumbi in favour of Abdul Kader as collusive documents. The Subordinate Judge held, as regards her own conveyance, that it had not been executed and registered by her. He further held with regard to the conveyances by Asia and Sufia and by Manatumbi that they represented fictitious transactions without consideration. In this view, the suit was decreed and a declaration was made to the effect just indicated. It was found in this litigation that at that period Karimannessa lived in the house along with her daughter, her grand-daughters and her grandson-in-law. On the 59th January 1915, the present plaintiff sued to enforce his security and joined-as defendants the mortgagor as also Karimannessa and two puisne encumbrancers who derived title under a mortgage said to have been executed by her on the 3rd January 1914. Karimannessa took up the position that the mortgagor of the plaintiff had no title to the property. As she thus claimed a title paramount, the Court held, on the authority of the decision in Jaggeswar Dutt v. Bhutan Mohan Mitra 33 C. 425 : 3 C.L.J. 205 that Karimannessa and the mortgagees from her were not necessary parties to the suit. Their nemeses were accordingly removed from the fecokl, and the suit was decreed. When execution was taken out, however, Karimannessa attempted to intervene on the 10th March 1917. The Court directed that her petition of objection might be read out at the time of sale. The result was that no bidders ventured to compete, and the mortgagee decree-holder became purchaser for the sum of Rs. 250. The purchaser was, however, unable to obtain actual possession, and. instituted the present suit on the 28th November 1918 to recover the property on declaration, of title. He joined as defendants Karimannessa, the two mortgagees from her, as also. Abdul Kader, Karimananssa died two days after the institution, of, the suit, and on the 7th December 1.918 her daughter, Alef Jan, was substituted in her place by order of Court. The defendants resisted the claim on the ground that Karimannessa did not execute and register the conveyance of the 20th June 1899 in favour of her grand-daughters Asia and Sufia, that the successive conveyances in favour of Manatumbi and Abdul Kader were fictitious transactions without consideration, and that the mortgage which was the not of the title of the plaintiff did not affect the disputed property. The Subordinate Judge has round that the conveyance, dated the 26th June 1899, by Karimannessa to her grand-daughters, Asia and Sufia, the conveyance dated the 21st December 1900 by Asia and Sufia to, Manatumbi, and tie conveyance, dated the 30th March, 1910, by Manatumbi to Abdul Kader were genuine documents, but they represented, paper transactions. as there was no real sale no payment of consideration in any instance. The Subordinate Judge has also found, that the plaintiff took the mortgage in good faith from Abdul Kader and paid the full consideration thereof. But the Subordinate Judge has held that as the title remained throughout in Karimannessa, the mortgage held by the plaintiff was inoperative, and he was not entitled to the protection afforded by a Court of Equity to a bona fide purchaser for value without notice. On the present appeal, the plaintiff has contended that the successive transactions were not fictitious but genuine, and that, in any event the defendants were not competent to set up in alleged unreality to his detriment. The defendant has impugned the conclusion of the Subordinate Judge that the conveyance by Karimannessa to her grand-daughters was genuine it has been strenuously argued that the document was a forgery and that recourse was had to false personation before the Registrar. Apart from this, the respondent has supported the view taken by the Subordinate Judge. The substantial questions which thus emerge for consideration are, first, was the conveyance by Karimannessa a forged document; secondly, were the successive Sales fictitious transactions without consideration; and thirdly, was the mortgage in favour of the plaintiff unimpeachable as held by a bona fide purchaser for value without notice.
3. As regards the first point, the Subordinate Judge has held that the conveyance which is alleged to have been executed on the 26th June 1899 by Karimannessa in favour of Asia and Sufia is a genuine document. The attesting witness, Abdulla Khan, has been examined on behalf of the plaintiff. The Subordinate Judge has accepted his testimony that the document was in fact executed by Karimannessa. The scribe Syeduddin Ahmad, his son Muhammad Ahmed who became an attesting witness, and Daulat Khan, a third attesting witness, are all dead, while Alef Jan, as might have been anticipated, denies that she became an attesting witness. We are not able to hold, in these circumstances, that the Subordinate Judge should not have acted on the evidence of Abdulla Khan. But it has been urged that great suspicion attaches to the document by reason of the diversity between what purports to have beet the thumb impression of Karimannessa taken in the registration book on the 26tn July 1899, as compared with specimens of her thumb impression taker in Court on the 16th July 1914, while her suit against Abdul Kader was in progress. The Subordinate Judge has held that the alleged difference is not of such a character as to justify an inference against the genuineness of the document, and, in his opinion, the evidence of the finger-print expert was by no means conclusive. We are not prepared to dissent from the view expressed by the Subordinate Judge, specially as no comparison is possible with the thumb impression on the original document which, was lost, on the 6th July 1900. Although finger prints sometimes afford valuable evidence of identity as in R. v. Castleton (1909) 3 Cr. App. Rep. 74 as was pointed out in the cases of Queen-Emforess v. Fakir Mahomed 1 C.W.N. 33 and Emperor v. Abdul Hamid 9 C.W.N. 520 : 32 C. 759 : 2 Cr. L.J. 259 great caution must be exercised in arriving at a conclusion by a comparison of thumb impressions, and the positive evidence of witnesses who were undoubtedly present and were eye-witnesses to the transaction should not be lightly brushed aside. There is, besides, in the present case a real difficulty in the way of acceptance of the theory that the document was forged, because no plausible hypothesis has even been suggested as to who could have engineered the forgery and for whose benefit. In this connection, we cannot overlook that although the judgment in the suit, by Karimannessa against Abdul Kader, is admissible in evidence under Section 13 of the Indian Evidence Act, the findings contained therein cannot be treated as part of the evidence in this case. As was explained in Kasi Nath Pal v. Jagat Kisore Acharjee 35 Ind. Cas. 298 : 23 C.L.J. 583 : 20 C.W.N. 643 and Tripurana Seethapati Rao Dora v. Rokkam Venkanna Dora 66 Ind. Cas. 280 : 42 M.L.J. 324 : 15 L.W. 316 : 30 M.L.T. 160 : (1922) M.W.N. 147 : 45 M. 332 : (1922) A.I.R. (M.) 71, it is hot the correctness of the previous decision, but the fact that there has been a decision, that is established by the production of the judgment. This is clear from the decisions of the Judicial Committee in Ram Ranjan v. Ram Narain Singh 22 I.A. 60 : 22 C. 533 : 5 M.L.J. 7 : 6 Sar. P.C.J. 530 : Ind. Dec. (N.S.) 355 (P.C.), Bitto Kunwar v. Kesho Prasad 24 I.A. 10 : 19 A. 277 : 7 Sar. P.C.J. 131 : 1 C.W.N. 265 : 9 Ind. Dec. (N.S.) 181 (P.C.), Dinomoni Chowdhrani v. Brojo Mchini Chowdhrani 29 I.A. 24 : 29 C. 187 : 6 C.W.N. 380 : 12 M.L.J. 83 : 4 Bom. L.R. 167 : 8 Sar. P.C.J. 224 (P.C.), Rum Parkash Dms v. Anani Das 33 Ind. Cas. 583 : 43 I.A. 73 : 43 C. 707 : 24 C.L.J. 116 : 20 C.W.N. 802 : 14 A.L.J. 621 : (1916) 1 M.W.N. 406 : 31 M.L.J. 1 : 18 Bom. L.R. 490 : 3 L.W. 556 : 24 C.L.J. 116 : 20 M.L.T. 267 (P.C.) and Natal Land and Colonisation Co. v. Good (1868) 2 P.C. 121 : 5 Moo. P.C. (N.S.) 132 : 16 W.R. 1086 : 16 E.R. 465, and of the House of Lords in Malcomson v. O'Dea (1863) 10 H.L.C. 593 : 9 Jur. (N.S.) 1135 : 9 L.T. 93 : 12 W.R. 178 : 11 E.R. 1155 : 130 R.R. 317 and Bestow v. Cormican (1878) 3 App. Cas. 641. This fundamental distinction was not fully appreciated in the Court below, and references were made to the findings in the judgment in the previous (sic) as if they were a kind of inconclusive res ad judicata, while the essence of the matter is that it is not the correctness but the fact of the decision which is relevant. On the whole, we see no reason to depart from the view adopted by the lower Court that the document was genuine, that is, was executed and registered by Karimanensssa, but that no real sale was intended to be effected. There is much to be said in favour of the theory that Karimannessa, under the advice of Abdul Kader and possibly also of Alef Jan, placed the property in the names of her two grand-daughters, so as to check his grandson, Mujibar Rahman, who had taken to wild habits and evil ways.
4. As regards the second point, the Subordinate Judge has found that the successive sales were fictitiotis transactions. The evidence and the circumstances undoubtedly support this view. As soon as Abdul Kader had successfully induced Karimannessa to make his wife and his sister-in-law the ostensible owners of the property, he began to extend his plans so that he might ultimately become the owner of the property. The guardianship proceedings were, without doubt, initiated by him, and the conveyance by his wife, on behalf or herself and bar sister, to Manatumbi, who was no other than his brother, does not bear the appearance of a real transaction. Karimannessa, as we have seen, intervened and raised an objection which was overruled by the District Judge. If the alleged conveyance by herself had been a forgery, or if the projected transfer to the brother of her grandson-in-law had been a real transaction, she would no doubt have instituted a suit for cancellation of the documents. But she was apparently lulled into security and did not care to acquaint herself with the activities of Abdul Kader, carried on in the name of his wife or his brother. In 1909, however, when Manatumbi sued the tenant for rent on the basis of the attornment he had secured, she was roused up, and came forward, to support the plea of the tenant defendant that Manatumbi had no title The tenant was defeated on the 17th December 1909 and within four months from that date, on the 30th March 1910, Abdul Kader took a convevance in his own name from his brother Manatumbi. The designs of Abdul Kader were now manifest beyond doubt and Karimannessa at last sued her grandson in-law on the 27th June 1911. But meanwhile on the 7th July 1910 Abdul Kader had managed to obtain a loan from tins present plaintiff on the security of the property which stood in his name. We do not see sufficient reason to doubt the correctness of the opinion expressed by the Subordinate Judge that the conveyances by Asia to Manatumbi and by Manatumbi to Abdul Kader did not represent real sales they were only links manufactured by Abdul Kader to lengthen and thereby to strengthen the chain of the title to the property which he had made up his mind to seize.
5. As regards the fourth point, the appellant has contended that in view, of the events which had taken place, Karimannessa was not competent to Set up her secret title to his detriment. Stress has been laid on the circumstances that Karimannessa did in fact execute and register the conveyance in favour of her grand-daughters; that this rendered it possible for them to execute a conveyance in favour of Manatumbi; that though the objection by Karimannessa was overruled by the District Judge she did not take steps to establish her title in a suit appropriately framed for the purpose: and that Matiatumbi thus invested with the ostensible title executed the conveyance to Abdul Kader from whom the plaintiff took the property in good faith as security for the money advanced by him, The plaintiff has further emphasised that the granddaughters were in actual occupation of the house; that their names were registered in the Collectorate on the 13th September 1901 as purchasers from Karimannessa; that, thereafter on the 24th March 1902 Manatumbi paid the redemption fee and on the 5th April 1902 obtained the redemption certificate in his own name; that Manatumbi was registered in the books of the Municipality and was in possession by receipt of rent from the tenant who had attorned to him; and that, subsequently, Abdul Kader as purchaser from Manatumbi was in possession of the property. In view of all these circumstances, the plaintiff has argued that Karimannessa could not be permitted to impeach his title as mortgagee. In support of this contention, reliance has been placed upon the judgment of the Judicial Committer in Rmnzomar Koondoo v. McQueen I.A. Sup. Vol. 40 : 11 B.L.R. 46 at p. 52 : 8 W.R. 166 : 3 Sar. P.C.J. 160 (P.C.) where Sir Montague Smith observed as follows:
It is a principle of natural equity, which must be universally applicable, that where one man allows another to hold himself out as the owner of an estate, and a third person purchases it, for value, from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice, of the real title or that there existed circumstances which ought to have put him upon an inquiry, that, if prosecuted, would have led to a discovery of it.
6. With reference to the concluding portion of this passage, we may re-call that it was explained in the judgment that in cases of this kind the circumstances which should prompt enquiry might be infinitely varied; but, without laying down any general rule, it might be said that they must be of such specific character that the Court could place its finger on them, and say that upon such facts some particular enquiry ought to have been made; it was not enough to assert generally that enquiries should be made or that a prudent man would make enquiries; some specific circumstance should be pointed; out as the starting point of an enquiry which might be expected to lead to some result. The principles thus expounded by the Judicial Committee and applied by them in Luchmun Chunder Geer Gossain v. Kalli Churn Singh 19 W.R. 292 : 4 Sar. P.C.J. 802 (P.C.) are not restricted to cases of conveyances; they govern equally cases of mortgage-, as pointed out by Sir John. Stanley, C.J., in Khwaja Muhammad Khan. v. Muhammad Ibrahim 26 A. 490. In the case before us, there was nothing to excite the suspicion of the plaintiff when he was asked by Abdul Kader to make an advance on the security of the property. Abdul Kader held the conveyance by Manatumbi who had taken the conveyance from Asia ten years before. The transfer by Asia had been sanctioned by the District Judge. If in such circumstances, it should be considered necessary to investigate the title of Asia herself, there was the Notification in the Calcutta Gazette dated the 1st August 1900, to the effect that the original conveyance by Karimannessa had been lost on the 6th July 1900. The chain of title was thus complete. The factum of possession also was in accord with the title. Abdul Kader was in possession of the house. His wife, mother-in-law and grand-mother-in-law no doubt lived in the house, but they would be there as members of the family. The records in the Collectorate would show that the name of Karimannessa had been expunged and replaced by the names of Asia and Sufia; later on, these names had been replaced by that of Manatumbi who held the redemption certificate, If the intending mortgagee could discover that Karimannessa had fruitlessly objected to the grant of permission by the District Judge to Asia to sell or mortgage the interest of her sister, the fact was un deniable that she had taken no further steps during a period of ten years. Again if the intending mortgagee could discover that Karimannessa and deposed in favour of the tenant in the suit by Manatumbi, the fact remained that her opposition was as abortive in 1909 as it had been in 1900. Mr. Ghose, an experienced Solicitor of this Court, who acted on behalf of the plaintiff in this transaction, has stated that he examined the documents of title and did not find anything in them to create suspicion about the title of Abdul Kader. We are unable to hold that there was any specific circumstance in connection with the title or possession which could be made the starting point of an enquiry and might be expected to lead to some result. As observed by Sir Basil Scott, C.J. in Mann Karimbai v. Hoorbhai 8 Ind. Cas. 752 : 35 B. 342 : 12 Bom. L.R. 1044 with reference to the judgment of the Judicial Committee in Barnhart v. Greenshields (1853) 9 Moo. P.C. 18 at p. 38 : 105 R.R. 1 : 14 E.R. 204 though a purchaser of property is under no legal obligation to investigate his vendor's title, a purchaser who wilfully departs from the usual course of business in order to avoid acquiring a knowledge of his vendor's title must be deemed to have acted without reasonable care within the meaning of Section 41 of the Transfer of Property Act; such a purchaser cannot be allowed to derive advantage from his wilful ignorance of defects which would have come to Ms knowledge, if he had transacted his business in the ordinary way judged from this point of view, the plaintiff must be deemed to have acted in good faith and with reasonable care. The case is analogous to the class of decisions which recognise the principle that one who culpably stands by and allows another to hold himself out to the world as the owner of property and thereby sell it to a bona fide buyer cannot afterwards assert his title against the latter; Gregg v. Wells (1839) 10 A. & E. 90 : 50 R.R. 347 : 2 P. & D. 296 : 8 L.J. (N.S.) Q.B. 193 : 113 E.R. 35; Stroud v. Stroud (1844) 7 M. & G. 417 : 135 E.R. 147; Waller v. Drakeford (1859) 4 E1. & B1. 749 : 93 R.R. 377 : 22 L.J.Q.B. 274 : 17 Jur. 853 : 118 E.R. 616; Richards v. Johnston (1859) 4 H. & N. 660 : 118 R.R. 672 : 28 L.J. Ex. 322 : 5 Jur. (N.S.) 520 : 1 F. & F. 447 : 157 E.R. 1000. and Low v. McGill (1864) 10 L.T. 495 : 140 R.R. 884 : 12 W.R. 826. It may be difficult, on the concrete facts of a particular case, to determine what standing by is culpable see the judgment of Parke, B., in Freeman v. Cooke (1848) 2 Ex. 654 : 76 R.R. 711 : 6 Dowl. & L. 187 : 18 L.J. Ex. 114 : 12 Jur. 777 : 154 E.R. 652 and of Blackburn, J. in Swan v. North British Australasian Co. (1863) 2 H. & C. 175 : 126 R.R. 617 : 32 L.J. Ex. 273 : 10 Jur. (N.S.) 102 : 11 W.R. 862 : 159 E.R. 73. But it is important to bear in mind that the Courts have gone so far a$ to hold that it is the duty of a man who knows that another is relying on a document bearing a counterfiet of his signature to give notice of the forgery without delay; Mackenzie v. British Linen Co. (1881) 6 App. Cas. 82 at p. 109 : 44 L.T. 431 : 29 W.R. 477; Ogilvie v. West Australian Mortgage and Agency Corporation (1896) App. Cas. 257 : 65 L.J. P.C. 46 : 74 L.T. 291;. Ewing v. Dominion Bank (1904) App. Cas. 806 : 74 L.J. P.C. 21. Reference has been made on behalf of the respondent to the decisions in Ogilvie v. Jeaffuson (1860) 2 Giff. 353 at p. 386 : 128 R.R. 148 and Morley v. Loughnan (1893) 1 Ch. 736 : 62 L.J. Ch. 515 : 3 R. 502 : 68 L.T. 619 to support the contention that the conveyance was obtained from Karimannessa, if not by fraud, at any rate by imposition, as she was without competent and independent advice and that a document so secured could not be made the foundation of a good title even by a bona-fide purchaser for valuable consideration without notice. It may be observed here in passing that the decision of Stuart, V.C. in Ogilvie v. Jeaffresqn (1860) 2 Giff. 353 at p. 386 : 128 R.R. 148 has been severely criticised by Sir Frederick Pollock (128 R.R. Preface p. V) not merely as a case containing 'dicta which, to say the least, must be taken as strictly limited by their context,' but also as a case where it is certain that some of the reasons were wrong and not clear that any of them were right. This, decision like that of Stuart, V.C. in Vorley v. Cooke (1857) 1 Ciff. 230 : 114 R.R. 413 : (sic) L.J. Ch. 185 : 4 Jur. (N.S.) 3 : 65 E.R. 898 is not easy to reconcile with later cases, such as Hunter v. Walters (1871) 7 Ch. App. 75 at p. 84 : L.J. Ch. 175 : 25 L.T. 765 : 20 W.R. 218 and Howatson v. Webb (1908) 1 Ch. 1 : 77 L.J. Ch. 32 : 97 L.T. 730. Apart from this there is, in our opinion, no room for application of the argument advanced to the facts of the present case. The essence of the matter is that the conveyance was not obtained by a fraudulent contrivance from Karimannessa; it was her design to keep the property in the names of her grand-daughters so as to check the evil propensities of her grandson. The next transfer, that is, by the grand-daughters to her grandsom-in-law, though objected to in the first instance, was ultimately acquiesced in by her as a step in furtherance of the same scheme. The brother of the grandson-in-law acted probably on behalf and for the benefit of the latter, who managed later to obtain the conveyance in his own name, and armed therewith, to hypothecate the property In such circumstances, this case has no analogy to that before the House of Lords in Farquharson v. King (1902) A.C. 325 : 71 L.J.K.B. 667 : 86 L.T. 810 : 51 W.R. 94 : 18 T.L.R. 665 which reversed the decision of the majority of the Court of Appeal in Farquharson v. King (1901) 2 K.B. 697 : 70 L.J. K.B. 985 : 85 L.T. 264 : 49 W.R. 673 : 17 T.L.R. 689. Lord Halsbury, J.C there pointed out that estoppel arisei where you are precluded frota denying the truth of anything which you have represented as a fact although it is not a fact; but the doctrine had no application to the facts of that litigation The Lord Chancellor further adhered to the view he had expressed in Henderson v. Williams (1895) 1 Q.B. 521 : 64 L.J.Q.B. 308 : 14 R. 375 : 72 L.T. 98 : 43 W.R. 274 where he had quoted with approval the opinion of Savagey, C.J. in Root v. French (1835) 13 Wendell. 570 at p. 572 : 28 Am. Dec. 482 on the position of a bona fide purchaser who had purchased property from a fraudulent vendee and had given value for it: 'He is protected in doing so upon the principle just stated, that when one of two innocent persons must suffer from the fraud of a third, he shall suffer; who, by his indiscretion, has enabled such third person to commit the fraud.' This, it will be observed, is a re-statement in a qualified form of the broad principle laid down by Ashurst, J. in Lickbarrow v. Mason (1787) 2 T.R. 63 at p. 70 : 1 R.R. 425 : 5 T.R. 367 at p. 683 : 6 T.R. 131 : 1 H. B1. 351 : 4 Bro. P.C. 57 : 6 East. 20n : 1 Sm. L.C. 11th. Ed. 693 : 100 E.R. 35. 'Wherever one of two innocent persons must suffer by the acts of a third, he who has enabled such person to occasion the loss must sustain it;' The words 'by his indiscretion' added by Savage, C.J., arid approved by Halsbury, L.C. obviously introduce an important qualification in the rule. Judged in the light of these principles, the defendant cannot, in our opinion, be permitted to set up a title to the detriment of the plaintiff as mortgagee.
7. The only matter for further consideration is the form of relief which the plaintiff should, obtain. Prima facie, he is entitled to recover possession of the property at the basis of his purchase at the mortgage sale. A difficulty is, however, created by reason of what took place at the sale; As already stated, Karimannessa insisted that her objection should be announced at the time of the sale. The result was that no purchaser, came forward and the plaintiff bought in the property at the nominal price of Rs. 250. In these circumstances, the justice of the case will be met if the parties are restored to the position they occupied before the sale.
8. The result is, that this appeal is allowed, the decree of the Subordinate Judge set aside and the suit decreed with Costs in both Courts in the manner following. Let Article 1 account be taken of what would be due on the 30th November next on the mortgage-decree obtained by the plaintiff on the 10th January 1916 in his suit against Abdul Kader. If the defendants pay this money together with the costs of this suit into the Court of the Subordinate Judge, on or before the 30th November next the plaintiff will be at liberty to withdraw the money in full satisfaction of his claim, If the money is not so deposited, the mortgaged property will be sold by the Court and the dues of the plaintiff including the costs, of this litigation will be paid to him out of the sale proceeds, the surplus, if any will belong to the defendants.