Lancelot Sanderson, C.J.
1. This is an appeal by Beni Rai, the 5th defendant, against the decision of the learned District Judge of Bankura which was in favour of the plaintiff. There is also a cross-objection on behalf of the plaintiff.
2. The facts are as follows:
3. On the 11th November 1898 Girish Roy, the father of defendants Nos. 1 and 2, executed a mortgage in favour of the plaintiff, the land hypothecated being described as panchaki mokarari jamai, which may be translated as a tenancy right held at a fixed 'quit rent,' which is capable of being transferred. The mortgagor at the time had a mere Ghatwali tenure which was not transferable.
4. In August 1910, Girish acquired the 'mokarari' right in the property and at some time between the last-mentioned date and 13th July 1602 Girish died.
5. On the 13th July 1902, defendant No. 1, one of the sons of Girish, sold his share in the property to defendant No. 3 without any mention of the mortgage, and ft has been found that defendant No. 3 had in fact no notice of the mortgage.
6. On the 23rd November 1910, the defendant No. 2, the other son of Girish, sold his interest to the defendant No. 5, who is the appellant in this appeal, without any mention of the mortgage of 1898.
7. On the 8th March 1911, defendant No. 2 executed a usufructuary mortgage of his interest in favour of defendant No. 3.
8. The plaintiff now sues the sons of Girish and the other defendants, who may be described as subsequent purchasers, under Section 43 of the Transfer of Property Act, alleging that he advanced the money relying on the representation contained in the mortgage as to the character of the property. It has been found that the plaintiff's mortgage was made bona fide and for good consideration and in the deed itself the land is described as a transferable interest, viz., panchaki mokarari jamai.
9. Defendants Nos. 3 and 5 contested the suit.
10. It has been held by the District Judge that the sale by defendant No. 2 to the appellant (defendant No. 5) on 23rd November 1910 was fraudulent, and that the plaintiff was entitled to sell the right of redemption inherent in defendant No. 2 in case the decretal amount was not paid in time. This would cover the interest which defendant No. 5, the appellant, alleges he has in the property, and consequently he has appealed against the decision.
11. The first ground urged was that at the time of the mortgage of 1898, the plaintiff knew that the property was inalienable.
12. The lower Appellate Court, however, has found on the facts that there was no proof of this contention and inasmuch as the grounds of appeal did not include this point, we decided during the course of the argument that this was not open to the appellant.
13. The other grounds relied upon were:
(1) That the lower Appellate Court decided the question of title as between defendants Nos. 3 and 5, although this matter was beyond the scope of the suit, which was merely to enforce the mortgage of 1898, and although the Court of the first instance had expressly left open the above-mentioned question between defendants Nos. 3 and 5.
(2) That, the finding of the lower Appellate Court that the sale to the defendant in 1910 was fraudulent was based in the Court of first instance on a presumption which the lower Appellate Court discarded as being unsupportable and that the lower Appellate Court, having so discarded the above-mentioned presumption, was wrong in affirming the finding of the Court of first instance on this point inasmuch as there was no evidence to support it.
14. In my judgment the appellant, defendant No. 5, is entitled to succeed on the last mentioned ground. I think the District Judge was right in rejecting the presumption which the Court of first instance drew, viz., that because the defendant No. 5 was the father-in-law of defendant No. 1, he must be presumed to have known of the mortgage executed in 1898 by Girish, the father of defendant No. 1, and that being so, I cannot find that there was any evidence which would justify the conclusion that the sale of 1910 to defendant No. 5 was fraudulent, except perhaps the fact of the usufructuary mortgage of the same property being executed by defendant No. 2 in March 1911.
15. But the Munsif in the Court of first instance had expressly left open the question of title between the defendants Nos. 3 and 5; a decision on this question would necessarily involve the investigation of the facts relating to the two above-mentioned deeds and this was expressly ruled out and declared not to be material to this suit, and under these circumstances I do not think the finding of the lower Appellate Court can be supported and the case must be remitted for further hearing on the question whether the alleged sale by defendant No. 2 to defendant No. 5 in 1910, was fraudulent or not. The further hearing should be confined to this question only.
16. The learned Vakil who appeared for the plaintiff contended that he need not rely on Section 43 of the Transfer of Property Act, first, because the plaintiff as mortgagee had in the first instance the immovable property and no additional interest was acquired in such property by the transferee, second, that the plaintiff by not repudiating the mortgage when he ascertained that the mortgagor's original interest was merely ghatwali and that he had subsequently obtained a transferable interest, had in fact exercised the option referred to in Section 43 before any of the subsequent transactions and, therefore, the plaintiff's title to the mortgagor's transferable interest had become complete and there was consequently no scope for the application of Section 43.
17. As regards the second point, it is to be noted that in both the Courts below the plaintiff did not at any time allege that he had exercised the option giver by the section and as far as I can ascertain, the case proceeded upon the assumption that the institution of this suit was to be regarded as the exercise by the plaintiff of the option given by Section 43. Otherwise the discussion of any of the matters in both the Courts would have been immaterial and for this reason I think this point cannot prevail.
18. And as regards the first point, Girish the mortgagor had no interest in the property which was capable of transfer at the time of the mortgage, though the deed did erroneously represent it as a transferable interest and consequently the mortgagee obtained no title to the property at the date of the mortgage. In my judgment Section 43 does apply to this case, and the mortgagee's right to the interest subsequently acquired by the mortgagor must be subject to the last clause of the section as to transferees for consideration in good faith without notice of the existence of the option.
19. It is to be noted that the case put forward by the plaintiff in the Court below proceeded on the assumption that the plaintiff could not succeed without calling in aid the provisions of Section 43 of the Transfer of Property Act.
20. As regards the cross-objection raised by the plaintiff as to the title of defendant No. 3, the lower Appellate Court has found on the facts that the transactions entered into by this defendant in 1902 and 1911, were bona fide and without notice of the mortgage of 1893. This defendant seems to have searched the register as far back as the year in which Girish acquired the transferable interest, up to which time it was alleged it was known that the interest was merely ghatwali and consequently there was no reason to search beyond that time. The learned District Judge has adopted this view and I see no reason to differ from him.
21. The result is that the plaintiff's cross-objection as against defendant No. 3 will be dismissed with costs and the appeal of defendant No. 5 will be allowed with costs and the case referred to the District Judge for the trial of the one issue only, viz., the question whether the alleged sale by defendant No. 2 to defendant No. 5 in 1910 was fraudulent or not. The District Judge will act under Order XLI, Rule 28, of the 1st Schedule to the Civil Procedure Code.
Asutosh Mookerjee, J.
22. I agree.