1. This is an appeal by the first defendant in a suit for recovery of possession, of land upon declaration of title. The litigation has a protracted history, and a formidable list of issues was drawn up in the Trial Court; but many of them were not pressed in that Court and others have not even been mentioned in the course of argument here. The facts material for the determination of the substantial contention which has been advanced before us may be shortly recited.
2. The subject-matter of the litigation is a tract, of land, measuring about 30 bighas, described in Schedule A to the, plaint. The land belonged admittedly to the Sahas, who executed a mortgage in favour of Malik on the 29th September 1900. The mortgagee sued to enforce his Security, and obtained a decree on the 27th September 1902. At the execution-sale which followed in due course, on 14th May 1907, Samalka became the purchaser. He obtained a sale-certificate on the 28th April 1908. Samalka, it is said, was the nominal purchaser and bought in the property, one-third for the benefit of Ramdeo and two-thirds for the benefit of Rooya. On the 3rd June 1910, and on the 8th July 1910, respectively, Rooya and Ramdeo, the beneficial owners, execufcetl two conveyances in favour of Banerjee. The plaintiff Dutt alleges that he was the real purchaser, and the conveyances were taken by him in the name of Banerjee. It would be a needless digression to narrate the story of the dispute between Dutt and Banerjee as to who became the beneficial owner under the conveyances ; it is sufficient to state that Dutt may now be taken to have established his title against Banerjee. who has consequently disappeared from the scene.
3. The history of the title set up by the first defendant who is the rival claimant may now be stated. In 1907, the Chaudhuries, who were the 6-annas co-sharer landlords, obtained against the Sahas. a money-decree for arrears of rent in respect of the disputed lands. This decree was executed and at the sale which followed on the 12th May 1908, the right, title and interest of the judgment-debtors was purchased by one Sarkar. On the 14th Octuber 1908, the first defendant, Agrani, purchased the propeity from Sarkar on the basis, of an alleged agreement for sale, dated 6th July 1908. In the interval, Sarkar had sold to Bose on the 20th July 1908, and on the strength of the title so acquired, Bose sold to the second defendant, Dutt brother of the plaintiff, on the 25th May 1910. These transactions, it has been, held do not affect the purchase by Agrani from Sarkar, and were evidently attempts made by the plaintiff to perfect his title by buying in outstanding claims. The controversy between the plaintiff, and the first defendant must consequently be determined on the following, basis, namely, that the title, of the plaintiff is traced to the mortgage-sale of the 14th May 1907, which itself rests on the mortgage of the 29th September 1900, while, on the other hand, the title of the first defendant cannot be traced beyond, the execution-sale of the 12th May 1908, when the right title and interest of the Sahas was exposed, for sale Before that date, the property had already vested in Samalka by virtue of the mortgage sale and could not again be brought to sale at the instance of the co-sharer landlords in execution of the money-decree they held against the Sahas; we are consequently not called upon to consider what would have been the position, if the so-called rent decree were not a mere money-decree and had the qualities of a true rent-decree. The inference is thus irresistible, that, prima facie, the first defendant has no title which can be successfully set up against the plaintiff. What, than, is his answer to the claim? His defence, as will presently appear, is founded on a clerical error which crept into the mortgage instrument.
4. In the schedule to the mortgage-bond, the boundaries 0f the hypothecated property were described as follows :
Within District Hooghly, Sub-Regisrty Howrah, Station Golabari, Thana Golabari, Pergana Paikan, village Mouza Salikha, lies the Tantipara land measuring about 30 bighas:
East-A place belonging, to us called Bajaldanga.
West-Jatadhari Gaidar's land.
North-Biswambhar Saha's tank.
South-A place called Barabagan.
Malilcs of 10-annas share are the Raja of Dighapatia and Bibi Jarao Kumari the annual rent of Rs. 35 is payable to both Sarkar; and the Malik zemindar of varmas shai is Gurudas Kundu Chowdhury to whom Rs. 40 is payable as annual rent.
4. It has now transpired that, by mistake, the north and south boundaries were inter changed : what is stated as the north boundary was in fact the south boundary and what is stated as the south boundary 'was in fact the north boundary, The scribe evidently made a mistake and wrote ' north' for ' south ' and 'south' for 'north.' This erroneous description of the boundaries was in due course reproduced from the mortgage-deed In to the plaint, from the plaint into the decree, and from the decree into the sale-certificate. The error appears to have been subsequently discovered, and in the conveyance by Rooya to Banerjee, dated the 3rd June 1910,the correct boundary is given in one portion of the deed, though the incorrect boundary is also set out in the Schedule. In the conveyance by Samalka to Banerjee, however, dated 8th July 1910, the incorrect boundary alone is reproduced. On these facts, the first defendant urges that the plaintiff Is not purchased the disputed land at all; and must content himself with such land as may be found to be within the incorrect boundaries set out in the mortgage-deed. It is plain that, if this contention prevails, the plaintiff takes nothing. As the result of the further enquiry which was directed by this Court on the 9th February 192I. it has transpired that there is no land which corresponds to the incorrect boundaries. There is no tract of 30 bighaS which lies in Tantipara and is bounded on the east by Bajaldanga, on the west by Jatadhari Haldar's land, on the north by Biswambhar Saha's tank and on the south by Barabagan. The fact that there has been a misdescription becomes manifest on a local inspection of the place, and this is confirmed when this map is examined. There is further, no plot of 30 bighas except the disputed land which, at stated in the mortgage-bond, was held by the Sahas as tenants, 10-nnna under Dighapatiya and Jarrao Kumari and 6-annas under the ChaudhariS. There is thus not the remotest doubt as to the facts) The only question is whether the first defendant is entitled in aw to take advantage of tba error in the mortgagerteed and thereby to defeat the title of the plaintiff.
5. It is plain that, as the result of the execution-sale, which was held on the 12th May 1908 by the co-sharer landlords on the basis of the money-decree held by them. nothing could vest in the purchaser Sarkar beyond the right, title and interest of the Saha judgment-debtors. The purchaser would thus be bound by the same rule of estoppel as the judgment-debtors. This is clear from the decision of the Judicial Committee in Mahomed Mozuffer Hossein v. Kishori Mohun Roy 22 1 A. 129 : 22 C. 909 : 5 M.L.J. 101 : 6 sar. P. c. j. 583 : 11 Ind. Dec, (N. S)602, (P.C). where Sir Rjchard Couch pointed out that the purchaser at the execution-sale is bound by the same rule of estoppel as the judgment-debtor, on the principle that the former has purchased merely the right, title and interest of the latter and does not consequently occupy a position of greater advantage. The execution-purchaser of the interest of the mortgagor is as much bound by the rule or estoppel not to dispute the validity of the mortgage as the mortgagor himself. The earlier decisions on this subject will be found reviewed in the judgment of this Court in the case of Debendra Nath Sen v, Mirza Abdul Samad 1 Ind. Cas. 264 : 10 C. L. J. 150. Reference is also made therein to Doe v. Stone (1846) 3 C.B. 176 : 17 R. R. 311 : 15 L. J. C. P. 234 : 136 E. R, 71, in which it was ruled that it would be no more open to a person standing in the shoes of the mortgagor than to the mortgagor himself to set up as against the mortgagee any preceding estate which he himself had created. This is in accord with the statement of the rule by Kay, L.J., in Madell v. Thomas (1891) I.Q.B. 230 at P. 238 : 60 L.J.Q.B. 227 : 64 L.T. 9 : 39 W.R. 280, Reference may also be made to the decision of the Full Bench in Ishan Chunder Sirkar v. Beni Madhub 24 C. 62 : 1 C. W. N. 36 : 12 Ind. Dec. (N.S.) 707 (C.F.) where it was pointed out that a contrary view had sometimes been maintained, for instance in Rungo Monee Debia v. Raj Coomaree Bibee 6 W. R. 197, Imrit Koer v. Lalla Debee Pershad Singh 18 W. R. 200; Lala Parbhu Lal v. Mylne 14 c. 401 : 7 Ind. Dec.(N.S) 267, Gour Sunday Lahiri v. Hem Chunder Chowdhry 16 C. 355 : 13 Ind. Jur. 381 : 8 Ind. Dec. (N.S.) 234. and Bashi Chunder Sen v, Enayt Ali 20 C. 236 : 10 Ind. Dec. 90(N.S.) 159-upona misapprehension of the true scope and import of a dictum of James, L. J., in Anundo Moyee Dossee v. Dhonendro Chunder Mookerjee 14 M.I.A. 101 : 8 B.L.R. 122 : 16 W.R.P.C. 19 : 2 Suth. P.C.J. 457 : 2 Sar. P.J.C. 698 : 20 E.R. 724 and of an observation 81 Sir Barnes Peacock in Dinendro nath Sannial v. Ram Kuma Ghose 8 I. A. 65 : 7 C. 107 4 Shome. L.R. 236 : 100 C.L.R. 281 : 4Sar. P.C.J. 231 : 5 Ind. Jur. 376 : 3 Ind. Dec. (N.S.) 619 (P.C.). The matter must, however, be taken to have been settled since then by the pronouncement of the Judicial Committee in Mahomad Muzaffer Hossein v. Kishori Mohun Roy 22 I.A. 129 : 22 C. 909 : 5 M.L.J. 101 : 6 Sar. P.C.J. 583 : 11 Ind. Dec. (N.S,) 602, (P.C.), which affirmed the decision oF this Court in Kishory Mohun Roy v. Mahomed Mujaffar Hossein 18 C 188 : 9 Ind. Dec.(N.S.) 126. This view has subsequently been applied in Kanchan Mandar v. Kamala Prosad Chowdhury 29 Ind. Cas. 734 : 21 C.L.J. 441. Tested in the light of this principle, how does the claim of the contesting defendant stand? As purchaser of the right, title and interest of the Sahas, he can no more chalenge the title of Malik as mortgagee than the Sahas could have done as mortgagors. As explained in the case of Debendra Nath Sen v Mirza Abdul Samed 1 Ind. Cas. 264 : 10 C.L.J. 150, the mortgagors would have been estopped from denying the title of the mortgagee, which they themselves intended to create in his favour; they could not have taken advantage' of the clerical error to nullify the security granted by them. As Iord Mansfield said in Goodtitle v. Bailey (1777) 2 Cowper 597 : 98 E.R. 1260, no man can be allowed to dispute his own solemn deed, and a mortgagor cannot be permitted to dispute the title of his mortgagee ; see also Doe d. Ogle v, Vickers (1836) 4 A. & E. 782 : 6 N. &M.; 437 : 6 L.J.K.B. 266 : 111 E.R. 977. To the same effect are the decisions in Baldeo Narain Jha v. Bhaya Lal Singh 30 Ind. Cas. 47 : 21 C.L.J.574, and Ram Sumran Prosad v. Genda Lal Rai29 Ind. Cas. 841 : 22 C.L.J. 574. It follows that the first defendant is in no better position than the Sahas would have been, if they had endeavoured to defeat the plaintiff by reliance on the clerical error in the mortgage-bond.
7. The defendant has urged, however, that the plaintiff cannot succeed till the mortgage-deed has been rectified : that rectification cannot now be obtained at the mortgage has merged in the decree, and that, in any event, rectification cannot be allowed so as to prejudice his position as a bona fide purchaser for value without notice. We are of opinion that, in the circumstances of this case, the plaintiff is entitled to succeed upon a construction of the conveyance itself; see Sreemutty Puddo Monee Dossee v. Dwarkanath 25 W.R. 335, Mahendra Nath Mukherjee. v. Jogendra Nath Roy Chowdhury 2 C.W.N. 260. and Asitulla v. Sadatulla (41 Ind. Cas. 747 : 28 C.L.J. 197. No advantage would be gained if the parties were driven to a separate suit for rectification to be followed by a suit for possession on the strength of the rectified instrument; and this view finds support from the decisions in Mahomed Bhoy Puddumsee v. Chutterput Singh 20 C. 854 : 10 Ind. Dec.(N.S.) 574 , Dagdu v. Bhana 28 B. 420 : 6 Bom. L.R. 126, Madhavji v. Ramnath 30 B. 420 : 6 Bom. L.R. 354, Karuppa Goundan v. Periathambi Goundan 30 M.397 : 2 M.L.T. 336, Mahadeva IYer v. Gopala Iyer 8 Ind. Cas. 390 : 34 M. 51 : 8 M.L.T. 289 : (1911) 1 M.N. 36, Rangasawmi Aiyangar v. Sowri Aiyangar 29 Ind. Cas 588 : 39 M. 792 : 29 M.L.J. 229 : (1915) M.W.N. 448 : 18 M.L.T. 75, Kota China Mellayya v. Kannekanti Veeriah 31 Ind. Cas. 671 : 3 L.W. 551 , see also Fife v. Clayton (1807) 13 Ves. Jur. 546 : 9R.R. 220 : 33 E.R. 398 : 1 Coop.t. Cott.351, Mitchell v. Lapage (1816) Holt N.P. 253 : 17 R.R. 633 and Steele v. Haddock (1855) 10 Ex. 634 : 102 R.R. 749 : 24 L.J.Ex. 78 : 3 Com. L.R. 326 : 3 W.R. 172 : 156 E.R. 597. This is not a case where ambiguity has been caused by a conflict between the statement of area and the description of boundaries : Watcham V.Attroney-General (1919) A.C. 533 at P. 541 : 87 L.J.P.C 150 : 34 T.L.R. 481 : 120 L.T. 258 and Durga Prasad Singh v. Rajendra Narayan 21 Ind. Cas. 750 : 40 I.A. 223 : 41 C. 493 : 19 C.L.J 95 : 18 C.W.N. 66 : (1914) M.W.N. 1 : 15 M.L.T.68 : 19 C.L.J. 95 : 26 M.L.J. 25 : 16 Bom. L.R. 42(P.C.); this is a case where what was intended by the mortgagor and the mortgagee alike to be included in the security, has been so misdescribed by reason of a manifest clerical error that nothing would pass by the deed and the intention of the parties would be defeated. On proof of this, the Court is competent to give effect to what was indisputably the real agreement between the parties.
8. But even if it were necessary for the plaintiff to take recourse to rectification, the defendant would have no answer to his claim. The principles applicable to cases of this character were reviewed in Bepin Krishna Ray v. Jogeshwar Ray 66 Ind. Cas.345 : 34 C.L.J. 256 : 26 C.W.N. 36. The mutual mistake of the parties to the mortgage transaction, 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 ; see also Jones on Mortgages, 1915, Sections 98, 99 and 1655. The defendant is in no sense a purchaser for value without notice. He made no enquiries as to the title before he purchased from Sarkar, nor did Sarkar make any enquiries before he purchased the right, title and interest of the Sahas at the execution-sale. Enquiry, such as a prudent purchaser would have made, would forth-with have led to the discovery of the existence of the mortgage, while an enquirer 0n the spot could not have been misled by the error in the description of the boundaries. The truth is that Sarkar was a speculative purchaser, and when he bought in a very valuable property for the nominal sum of Rs. 168, we cannot hold that his bona fides were as unquestionable as his good fortune. In less than two weeks from the dates of his sale-certificate, he entered into an agreement with the appellant to convey the property to him for Rs. 2,5oo : this, though 15 times the consideration he had paid, was a disproportionately small sum in view of the real value of the property. We are not convinced that either Sarkar or Agram was a purchaser for value without notice, and we need not consequently consider whether the defence, if established on the facts, would have afforded in law an effective answer to the suit.
9. In our opinion, there is no room for doubt as to where the justice of the case lies. The suit has been rightly decreed and this appeal must be dismissed with costs.