Sen, J.:— This is a plaintiff's appeal which arises out of a suit for recovery of Rs. 1,080 by enforcement of a mortgage for Rs. 135, dated the 28th of August, 1914, executed by one Faqire Lohar in favour of the appellant.
[The judgement then proceeded to set forth the facts in detail, and continued.]
In 1914, when the mortgage was executed in favour of the plaintiff, his security was limited to a katcha tiled house presumably in a dilapidated condition. After the purchase by defendant No. 2 (Musammat Jan Bibi) the property has been improved and its value considerably enhanced. No attempt whatsoever was made by the plaintiff mortgage to secure to himself the title-deeds relating to the house. The defendant on the other hand, had secured the original sale-deed, dated the 20th of November, 1909, and the subsequent title-deeds. It is significant that there is no mention of the plaintiff's mortgage in the subsequent mortgage-deed executed by Faqire in favour of Arjun on the 12th of January, 1915. Nor is there any allusion to it in the sale-deed in favour of Sri Kishun, dated the 22nd of October, 1915. section 51 of the Transfer of Property Act provides that “when the transferee of immoveable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction, either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement.”
Section 51 is based upon the principle that he who seeks equity must do equity. It must distinctly be kept in view that cases founded upon the equitable rule of estoppel are beyond the purview of section 51. The rule of estoppel referred to above has been stated by Mr. Justice Storey in his Equity Jurisprudence, first English edition, paragraph 1237, at page 861: “If the true owner stands by and suffers improvements to be made on the estate, without notice of his title, he will not be permitted in equity to enrich himself by the loss of another; but the improvements will constitute a lien on the estate.” It cannot be said that the prior mortgagee is the true owner who has stood by and it is doubtful if the rule of equitable estoppel can be extended to his case. Assuming that section 51 of the Transfer of Property Act applies to the case of the simple mortgagee seeking to enforce his mortgage, no question arises as to whether he has been sufficiently vigilant in safeguarding his own title or in asserting his right with reference to the property covered by the mortgage security. It is the subsequent transferee who has put up improvements and has to prove her good faith. The true rule has been stated by Dart to be that “when a purchaser for value is evicted in equity, under a prior title, he will be credited with all moneys expended by him in necessary repairs or permanent improvements, except improvements made after he has discovered the defect of title, and will be debited with the rent which he has received” (Dart, 7th edition, page 944). This view seems to be in accord with the rule of law enunciated in Mill v. Hill (1). In the case of Thakoor Chander Poramanick v. Ramdhone Bhuttacharjee (2). Sir Barnes Peacock, C.J, is reported to have observed as follows:—“We think it clear that, according to the usages and customs of this country, buildings and other such improvements made on land do not, by the mere accident of their attachment to the soil, become the property of the owner of the soil, and we think it should be laid down as a general rule that, if he who makes, the improvement is not a mere trespasser, but is in possession under any bona fide title or claim of title, he is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil—the option of taking the building or allowing the removal of the material, remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate the may possess.”
The defendant does not appear to have acted either on the assumption of a risk or under circumstances of doubt relating to the security of her title. Registration does not per se amount to notice. There are no circumstances disclosed by the present case which entail an obligation upon the defendant to search the registry. The crucial question in the case is, did the defendant reasonably and honestly believe that she was absolutely entitled to the property at the time when she put up the new building? If the defendant erroneously but honestly believed that she was absolutely entitled to the property conveyed to her by Sri Kishun and that she was not a trespasser or an assignee from a trespasser and that she had not a limited interest in the property and was not a tenant, she was justified in spending money upon improvements by reason of the principle underlying section 51 of the Transfer of Property Act. The Transfer of Property Act is not exhaustive and does not exclude any equitable principle such as may regulate the rights and liabilities of the parties in a case not specifically provided by the legislature. It is doubtful how far section 51 of the Transfer of Property Act is in terms applicable to the facts of the present case. Musammat Jan Bibi has not been evicted from the premises by a person having a better title. It cannot be said that a prior simple mortgagee seeking to enforce the mortgage has a better title to the property. Nor can it be said that Musammat Jan Bibi is a person evicted from the premises by reason of the institution of the suit, although she might ultimately be evicted at the instance of the auction purchaser. In construing section 51 of the Transfer of Property Act, this Court has to adhere to the natural and etymological meaning which can be assigned to the words “evicted therefrom by any person having a better title.” Musammat Jan Bibi not being a person evicted, and the plaintiff, as prior simple mortgagee having only a right to sell the property for the recovery of his mortgage dues, not being a person having a better title, section 51 of the Transfer of Property Act does not in terms apply, but the rule of equity upon which section 51 is based may very well be extended to the case of Musammat Jan Bibi and upon that basis the decree of the court below may very well be affirmed.
In view of all the circumstances of the case the learned Judge was justified in ordering the plaintiff to pay the cost of the improvements as a condition precedent to bringing the mortgaged property to sale. I would, therefore, dismiss this appeal with costs.
Weir, J.:— I agree.
By the Court:—The appeal is dismissed with costs.