Asutosh Mookerjee, Acting C.J.
1. This is an appeal by the plaintiffs in a suit for recovery possession of land on declaration of title.
2. The defendants resisted the claim on the ground that they had acquired a good title under an exchange.
3. The Courts below have found that is exchange was effected in the manner pro vided by the Transfer of Property Act that is, as the value of the property was less than Rs. 100, the plaintiffs deliverec possession of the disputed land to this defendants. This is prima facie a completi answer to the claim, but the plaintiffs have established that, though at the time of this exchange they were in possession of tb whole of the property, they had not 8 complete title thereto, as they were themselves purchasers from persons who were entitled only to a half share. Their contention, in substance, is that the defendants acquired a good title to that half share alone and have no title to the remainder.
4. The answer of the defendants is that, subsequent to the exchange, the plaintiffs acquired the title of the co-sharers of their vendor, and that as soon as their title to the whole was thereby perfected the benefit thereof accrued to the defendants. The Courts below have held that this is a conclusive answer to the case set up by the plaintiffs. In our opinion, there is no foundation for the claim.
5. Section 43 of the Trasfer of Property Act provides that, where a person erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property, at any time during which the contract of transfer subsists,' This section in substance embodies the rule that the interest when it accrues feeds the estoppel; or, in other word?, that though the assignment was of a defective title, yet, as the assignor afterwards acquired a good title,the Court will make that good title available to make the assignment effectual : Webb v. Austin (1844) 7 man & G. 701 at p. 724 : 8 Scott (N.R.) 419 : 13 L.J.C.P. 203 : 135 E.R. 282 Cuthlertson v. Irving (1859) 4 H. & N. 742 : 28 L.J. Ex. 306 : 5 Jur. (N.S. )740 : 157 E.R. 1034 : 33 L.T. (O.S.) 328 : 118 R.R. 726 'Bow botham v. Wilton (1860) 8 H.L.C. 384 : 30 L.J.Q.B. 49 : 6 Jur. (N.S.) 965 : 2 L.T. (N.S.) 642 : 11 E.R. 463 : 125 R.R. 192, Holroyd v. Marshall (1862) 10 H.L.C. 191 at p. 208 : 33 L.J. Ch. 193 : 9 Jur. (N.S.) 213 : 7 L.T. 172 : 11 W.R. 171 : 11 E.R. 999 : 138 R.R. 108 Booth v. Alkali (1878) 8 Ch. App. 663 : 29 L.t. 231 : 21 W.R. 743 : 42 L.J. Ch. 557 Bridgwater's Settle net, In re, Partridge v. Ward (1910) 2 Ch. 342 : 79 L.J.Ch. 746 : 103 L.T. 421 Qresham Life Assurance, Society v. crowther (1914) 2 Ch. 219 : 83 L.J. Ch. 867 : Affrimed in (1915) 1 Ch. 214 : 84 L.J. Ch. 312 : 111 L.T. 887 : 59 SJ. 103 Poulton v. Moore (1910) 2 Ch. 342 : 79 L.J. Ch. 746 : 103 L.T. 421 Prosonna Kumar Mukerjee v. Srikant Bout 16 ind. cas. 365 ; 40 C. 173 at p. 184 : 16 C.L.J. 202 : 17 C.W.N. 137
5. Dr. Dwarka Nath Mitter has, however contended that, although Section 43 speaks of transfers in general terms, still it is not applicable to cases of exchange by reason of the special provision contained in I Section 119. That section provides that, 'in the absence of a contract to the contrary, the party deprrved of the thing or part thereof he has received in exchange, by reason of any defeat in the title of the other party, is entitled at his option to compensation, or to the return of the thing transferred by him.' But this does not exclude the operation of Section 43; for a similar argument might be advanced in the case of sales, mortgages or leases, where, on proof of deficiency in the subject-matter, the purchaser, mortgagee or lessee may obtain compensation or cancellation.
6. Reference has also been made to the decision in Holroyd v. Marshall (1862) 10 H.L.C. 191 at p. 208 : 33 L.J. Ch. 193 : 9 Jur. (N.S.) 213 : 7 L.T. 172 : 11 W.R. 171 : 11 E.R. 999 : 138 R.R. 108 where Lord Westbury speaks of this principle as applicable cases of sales and mortgages; but this does not indicate that it is not applicable to cases of exchange. It is an elementary proposition that, for purposes, like this, an exchange stands on the same footing as a sale. We are of opinion that the claim put forward by the plaintiffs is not marey unfounded; bat is wholly unjust and has been rightly dismissed. The appeal is dismissed with costs.
Ernest Fletcher, J.