Dhavle, J.:— Brijbehari Lal, the adopted son and Jaibehari Lal, the natural son of Kunjbehari Lal sold to Mohan Ram and three brothers of his their moieties in 16 annas of mauza Misraulia and 14 annas of mauza Khurrhi by two sale deeds of the 25th June, 1905. The vendors also executed an ekrarnama each at the same time guaranteeing a good title and quiet possession, and charging upon his half share in mauza Gheora, tauzi number 5310, pattis nos. 1-3 and certain other properties (among which it is only necessary to mention a house in Arrah in respect of the ekrarnama of Jaibehari Lal) any failure of consideration that may occur ill case of the purchasers' dispossession, together with any costs and damages that they may-incur in defending the title. In 1918 one Mirza Ali Husain Beg succeeded in dispossessing the purchasers from Khurrhi notwithstanding the opposition offered by them in the courts. The purchasers, or rather the joint family of which they are members, thereupon brought the two suits, out of which these present appeals arise, for recovery of the money charged upon Gheora, the house in Arrah and other properties. Jaibehari was upon his death succeeded by Brijbehari who was impleaded as one of the defendants in both the suits. The appellant Musammat Chanda Bibi was also impleaded defendant in the two suits on the allegation that she was a subsequent purchaser of mauza Gheora. In the suit based on Jaibehari's ekrarnama Amir Chand and others were impleaded as defendants 2 to 6 on the allegation that they were subsequent purchasers of the house in Arrah. Musammat Chanda Bibi, whose own purchase of mauza Gheora is dated 1911, set up in defence a usufructuary mortgage taken from the owners by one Srikishan as long ago as 1-899. The lower court held that this defence failed because her vendor Mahabir Chand, son of Srikishan, who had succeeded in 1909 to the mortgagor's interest in the property from his mother, Musammat Dhana Bibi, the purchaser at a court sale in execution of a money decree in 1908, “did not think of keeping alive the rehan right, but extinguished, it clearly as regards the Arrah house, the learned Subordinate Judge held that defendants 2 to 6 of the suit on Jaibehari's ekrarnama were prior purchasers. The suits were accordingly decreed in respect of mauza Gheora; and against this part of the decision, Musammat Chanda Bibi has preferred two appeals, no. 96 of 1929 (out of Title Suit no. 47 of 1927 which was numbered no. 56 of 1928 on transfer) and no. 67 of 1930 (out of Title Suit no. 48 of, 1927 which similarly became no. 57 of 1928). In both these appeals the plaintiffs respondents have filed cross-objections as regards the interest on their money from the, date of institution of the suits up to the date of the decrees which is not to be found in the decrees. In appeal no. 67 of 1930 arising out of the suit on the ekrarnama of Jaibehari, plaintiffs' cross-objection also challenges the finding of the lower court that defendants 2 to 6, who are on the record as co-respondents, are prior purchasers and that plaintiffs cannot therefore proceed against the house for the realization of their claim.
Dealing first with the appeals, two points have been urged on behalf of the appellant, Musammat Chanda Bibi: (1) that she is entitled to stand on Srikishan's mortgage of 1899 and (2) that the ekrarnamas do not entitle the plaintiffs to proceed against mauza Gheora for the dispossession which was admittedly effected by Mirza Ali Husain Beg on the basis of a charge prior not only to the sale of the mauza by Brijbehari and Jaibehari but also to the acquisition of that mauza by them. The argument of the appellant as regards the mortgage of 1899, which itself is undisputed, is that in the circumstances of the, case the lower court was wrong in requiring the appellant to show that the mortgage had been kept a live for use as a shield against the ekrarnamas obtained by the plaintiffs respondents. Srikrishan appears to have died in or about 1905, when, Mahabir got himself entered in the Collector's D register as mortgagee in place of his father “by inheritance”. Dhana Bibi, it is undisputed, purchased the equity of redemption in 1908, and on her death in 1909 Mahabir took that interest as her son and heir and thus became full owner and thereupon got himself entered in the Collector's D register as proprietor of the mauza instead of the former entry of his name as mortgagee. At or after the Combination of the interests of the usufructuary mortgagee and the mortgagor in Mahabir in 1909 there was no declaration by him that the mortgage was to continue to subsist.
Sir Sultan Ahmad, for the appellants, has argued that section 101 of the Transfer of Property Act, as it stood before the amendment of 1929, lays two independent exceptions to the rule of merger when the owner of a charge or other incumbrance on immovable property becomes absolutely entitled to that property, and that the second of these exceptions
“(unless) such continuance would be for his benefit”
will apply, irrespective of any presumed intention, whenever it appears that there was in fact (as there was in these cases) a subsequent incumbrance against which the prior charge would be required as a shield. He has cited Baldeo Prasad v. Uman Shankar and Ram Sarup v. Ram Lal as instances in which a prior mortgage was so used in reliance on the second exception. Against this the respondents have cited Jugal Kishore v. Ram Narain and Bai Rewa v. Vali Mahomed Miya Mahomed, but these cases are easily distinguishable on the facts as there was in fact no subsequent charge or mortgage in them. It is, however, true that in Jugal Kishor's case it was held that the point of time to be regarded in considering the question whether an incumbrance should be deemed to continue to subsist on the ground that its continuance was for the benefit of the person who has acquired the property, is upon the authorities, the date of the acquisition of the property. It is also true that in Bai Rewa's case the words' “continuance would be for his benefit” were taken to be “merely a guide to the intention of the owner”, and it was held that the section throws the onus on the owner to prove circumstances from which it can be inferred that it was to his interest to keep the charge alive, so that it the time of the transaction that was his intention. But these cases were distinguished and doubted in Sonaulla Karikar v. Abu Sayad Muhammad Ismail, where reference was made to Sir Rashbehari Ghose's construction of the section (see page 524 of Ghose's Law of Mortgage, 5th edition), and it was observed that “the cases, which have held that the non-application of the section depends upon the presence of the intention at the date of the combination of the two interests, have overlooked the last clause of the section, which is in the disjunctive” Their Lordships of the Judicial Committee, however, in Malireddi Ayyareddi v. Gopalakrishnayya, construed the section to enact that “if there was no indication to the contrary the owner has intended to have kept alive the previous charge if it would be for his benefit”. If intention is read into the second exception, the question may arise to what point of time the intention is to be referred and whether the exception will apply where the owner has no knowledge of a subsequent charge at the time he acquires the property; on the latter part of this question there seems to have been some divergence of judicial opinion. On the facts and arguments before us, however, the exact construction of the second exception does not really arise, for it is undisputed not only that there was a usufructuary mortgage in 1899 taken by Mahabir's father Srikishan, butt also that Mahabir was aware of it before he succeeded to the equity of redemption purchased by his mother, and that from such knowledge it must be presumed, unless the contrary is shown, that Mahabir did intend to keep the mortgage alive. It is further undisputed that even though the continuance of the mortgage would be for the owner's benefit, there is nothing in the law to prevent him—madly, it may be—from extinguishing the mortgage or surrendering his priority under it; and the position taken up by the plaintiffs respondents is that Mahabir had in fact done so, as has indeed been found by the lower court. In support of this position they have relied on three documents.
The earliest of these documents is Exhibit 4, a compromise of 1907, to which Mahabir was a party and which provides, among other things, that the ekrarnamas of the 25th June, 1905, “may be affirmed as binding and operative” (”ba-har-hal jaez wo qayam rakha jae”). This compromise was arrived at an a title suit no. 146 brought by Mohan Ram and his brothers in 1906 on finding that the properties purchased by them from Brijbehari and Jaibehari had been taken by others. The reliefs claimed in the suit were two-fold; one branch related to the establishment of the plaintiffs' title, to the properties purchased and sought their recovery, and the other asked, only in the alternative, for a refund of the consideration money and its recovery from the properties mortgaged by the ekrarnamas, in priority to Mahabir's claim under, the usufructuary mortgage of 1899 and also to the, purchase of the house in Arrah by the vendor of the present defendants 2 to 6, an item which will have to be dealt with when I come to the plaintiffs respondents' cross-objection. The compromise entitled the plaintiffs to possession of Misraulia and 14 annas of Khurrhi on payment of Rs. 1,500 to certain defendants in that suit. The question, therefore, whether they were entitled in the alternative to recover the consideration money and to do so by proceeding against the mortgaged properties, did not directly arise on the occasion. The compromise, nevertheless, dealt with the claim to this alternative relief to the Extent of providing that the ekrarnamas were to be valid and operative in any event (”ba-har-hal.”). The zerpeshgi deed in favour of Mahabir also was, however, affirmed—declared genuine (”sahih wo asli”)—by the compromise. There is really nothing in the circumstances of the compromise give the ekrarnamas which were affirmed any priority over the zarpeshgi deed which was also affirmed; and it would appear from the compromise that the relative rights of the parties under these documents, whatever they might be, were merely reserved — [compare Ram Bujhawan Prasad Singh v. Natho Ram. It has been urged on behalf of the plaintiffs respondents that Mahabir may have given up his priority because he may not have thought that it would ever be necessary for the plaintiffs to seek their remedy against mauza Gheora, but this contention can hardly be accepted because it is at least as probable that the plaintiffs themselves may have been under a similar impression, and may thus have been content, instead of securing any priority over the zarpeshgi deed, to leave relative priorities alone. It does not, in fact, seem to have been contended in the lower court that this compromise of 1907 had any bearing on the relative priorities under the ekrarnamas and the zarpeshgi deed. In my opinion the compromise in question does not support the contention of the plaintiffs respondents that Mahabir had agreed to waive his priority under his father's usufructuary mortgage in favour of the plaintiffs with their ekrarnamas; the affirming of the sale deeds and ekrarnamas meant no more than that the other parties to the compromise would no longer question the reality of the plaintiffs' title to the mauzas purchased and of their right, should occasion arise, to proceed against Gheora. There was of course no question of any extinction of the usufructuary mortgage under section 101 at that, time, as Mahabir had not yet come into the equity of redemption.
The next document relied upon by the plaintiffs respondents is Exhibit D, the Collector's D register. Here the plaintiffs respondents have in their favour the view of the lower court that the conduct of Mahabir in getting his name as mortgagee removed from the register and getting himself recorded instead as proprietor “shows clearly that he extinguished the rehan right and never thought of its continuance”. It seems to me impossible to accept this view as correct, for the plaintiffs respondents have utterly failed to show how Mahabir could have remained in the register as both mortgagee and proprietor at a time when he was proprietor pure and simple to all the world except of course to holders of mortgages subsequent to that of Sriklshan of whom there is no trace in the register. The lower court has also referred to the failure of the appellant to produce the survey khewat to show that any khewat was prepared in respect of Mahabir's “rehandari interest”, but as it is undisputed that the owner gave a usufructuary mortgage of 1899 to Srikishan and that Mahabir was aware of this mortgage, it was not necessary for Mahabir's purchaser, the appellant, to produce any such paper. The plaintiffs respondents ought to have produced the khewat if they thought that there might be something in it helpful to them. Prima facie, even if the khewat did not mention the mortgage of 1899, that would not go against Mahabir for the same reason as the disappearance of the mortgagee interest on its replacement by the proprietary interest in the Collector's D register. In my opinion the entries in the D register are of no assistance to the appellants and do not warrant the inference that Mahabir extinguished the mortgagee right on succeeding to the equity of redemption. This is rendered all the more indisputable by the fact that the undischarged mortgage bond is produced by his purchaser, the appellant.
The third document that has been relied upon by the plaintiffs-respondents is Mahabir's sale-deed in’ favour of the appellant. This document does not refer to the mortgage lien of 1899, and it has therefore been urged that lien has not in fact been, transferred to the purchaser but the sale-deed conveys to the appellant all the existing rights of the vendor and after reciting that he is in possession and occupation of the property as absolute proprietor, makes the purchaser his representative in interest. It reserves no rights in favour of the vendor and contains nothing from which any intention to do so may be inferred; and, therefore, under section 8 of the Transfer of Property Act, all the rights of the vendor would pass to the purchaser, even apart from the express conveyance of “all the existing rights” under the deed. It is also clear that Mahabir not only put the appellant into possession but also gave her the undischarged mortgage bond. A witness, Bachha Lal, was called on behalf of the appellant to make out that the sale-deed was intended to cover the “rehani right”. This evidence was rightly rejected by the lower court, and is not relied upon by Sir Sultan Ahmad. But Bachha Lal also says that he got the original mortgage bond from Mahabir at the time and made it over to the appellant; And this story stands on a different footing because it is supported by the production of the deed by the appellant, while, on the other hand, the plaintiffs-respondents have not been able to explain how else the mortgage bond could have come into the possession of the appellant. Mr. Sarju Prasad in his strenuous argument, for the plaintiffs-respondents on this point also urged that the right to keep the mortgage alive was personal to Mahabir and incapable of transfer to a purchaser. This contention can be shortly disposed of by considering what would have happened if Mahabir had died without transferring the property. It could not, I conceive, have been said in that hypothetical event that the right, if any, to use the mortgage as a shield, was at an end and could not be availed of by his heir. I see no season why a purchaser for value, like the appellant, or even a donee of all the rights of Mahabir, or any other person standing it his shoes apart from any question of inheritance, should be worse off as against a later mortgagee. According to the plaintiffs-respondents themselves the exercise of the right to keep the mortgage alive depended on Mahabir's intention at the time of the union of the mortgagee and mortgagor interests in him on his mother's death. It is thus not the right to keep the mortgage alive, but the right, should the mortgage have been kept alive by Mahabir (as I have shown must be taken to be the case), to use it as a shield against a later incumbrance, that is really in question. The learned Subordinate Judge considers that
“if there was any term to transfer the rehani right at the time when the kabala was executed, one would expect a clear insertion of those terms in the recitals of, the kabala (Ex. B)”.
In my opinion, no such specific mention of the mortgage in the kabala was necessary, for the reasons already indicated, and the plaintiffs-respondents are not entitled to have the mortgage of 1899 ignored or postponed even though the kabala says nothing about it. It has been pointed out on their behalf that the price mentioned in the sale-deed is much smaller than the amount covered by the mortgage bond; but the sufficiency or otherwise of the consideration is a matter for the parties, and not for strangers like the plaintiffs-respondents. The transaction does not, having regard to the close relations between the parties, appear to have been on a business footing entirely, and the absence of the reservation of any rights in favour of Mahabir in his sale-deed together with his delivery of the mortgage bond to the appellant shows clearly enough that the appellant was in fact placed in the same position as Mahabir and is entitled to set up the mortgage bond as a shield against the claim of the plaintiffs-respondents.
The result is that the decree passed by the lower court in favour of the plaintiffs-respondents must, be made subject to their repaying to the appellant the amount of the mortgaged 1899, as in a suit, by a mesne mortgagee against a prior mortgagee as well as the mortgagor.
The second point urged on behalf of the appellant does not in this view require elaborate consideration. The contention of the appellant is that the ekrarnamas secure the purchasers, not against prior liens such as what was enforced by Mirza Ali Husain Beg, but only against such as were created by the vendors or parties claiming under them. This is rested on the provision in the ekrarnamas relating to the property sold passing out of the possession of the vendees
“by reason of any claim (based) on the right of inheritance or minority, or brought under any deed of sale……………………zarpeshgi deed………………….temporary lease……………in short, finder any deed or due to anything (“karrawai”, literally any act or proceeding)………. done by me or my heirs (or) representatives………………………”.
As a matter of ordinary Urdu, I believe, the word “hamare” (rendered “by me” in the translation) goes not only with “anything” but also with “deed”; but this does not by any means conclude the matter. The vendors have said a little earlier in “the ekrarnamas that the roperty is” so far (“is waqt tak”) free from defects and is subject to no incumbrance, is free from mortgage incumbrance in every way and none but ourselves is the heir and claimant (Sic. in the official translation “Haqdar” in the original means rather “entitled to”) to the same”. It is thus plain that the vendors set out to guarantee a title free from all defects whether or not they themselves had anything to do with them. There is also no dispute that in a subsequent clause the ekrarnamas do secure the purchasers from dispossession under a title paramount to that of the vendors. The learned Subordinate Judge rightly read each ekrarnama as a whole on the principle that “every part of the agreement should agree with every other and no part should be taken as meaningless or redundant”. When this is done, it seems clear that the plaintiffs' claim cannot be defeated on the ground that their dispossession, was due to the acts of a third party and not of their vendors. The failure of the appellant on this point does not, however, make any difference to her success on the first point which entitles her to priority over the plaintiffs-respondents and to an appropriate modification of the decree of the lower court.
Coming now to the plaintiffs-respondents' cross-objections, it appears from the decrees that they have been given interest at the bond rate up to the date of suit only and that no interest has been allowed to them from the date of suit to the date of judgment, viz., from 10th of August, 1927, to the 27th February, 1929. All that has been said in answer to the plaintiffs-respondents' claim to interest for this period of over 18 months is that the matter is one of discretion. One looks in vain in the judgment of the lower court for any indication that court, assuming that it had any discretion on the point, chose in fact to exercise it. None of the respondents has been able to point to any circumstances in the case why the plaintiffs-respondents should be deprived of interest at the bond rate for this period. The cross-objections as regards the interest must, therefore, be allowed, and the decrees of the lower court modified by including interest on the principal at the bond rate for the period indicated.
I now come to the cross-objection filed by the plaintiffs-respondents regarding the house in Arrah to which, according to the findings of the learned Subordinate Judge, those respondents who were defendants 2 to 6 in suit no. 57 below are entitled as prior purchasers. It has been urged on behalf of these respondents that such a cross-objection does not lie under Order XLI, rule 22, which entitles any respondent, though he may not have appealed from any part of the decree, not only to support the decree on any of the grounds decided against him in the court below, but also to take any cross-objection to the degree which he could take by way of appeal. It has been often pointed out that, the word “cross-objection” seems appropriate as regards a question between the appellant and a respondent but inappropriate as regards a question between two co-respondents. As Jessel, M.R pointed out in In re Cavander's Trusts, an appeal on a point which does not affect the original appellant cannot be a cross-appeal. The word “cross-objection” appears, moreover, to have been deliberately substituted by the legislature for the word “objection” that occurred in the older provision—section 561 of the Code of 1882. Had the matter rested here, the conclusion would perhaps have been irresistible that Order XLI, rule 22, is confined to a respondent's objection against the appellant and does not extend to his objections against co-respondent. A plausible ground for arguing that the respondent is not so restricted is furnished by the fact that the legislature at the same time extended the service of notice of such objection from the appellant to “the party who may be affected by such objection” —(see sub-rule 3). This alteration does not, however, seem sufficient to make that a cross-objection which is not a counter-attack to the appeal. The extension of service of notice to “the party who may be affected by such objection” is not unintelligible in view of the fact that from their presence on the record, the corespondents may be presumed to be interested in the appeal and thus in some cases at any rate to be also interested in the cross-objection (properly so-called) of another respondent. The High Courts of Calcutta, Bombay and Allahabad are not the only superior courts in the country that have held that even under Order XLI, rule 22, of the present Code the right of a respondent to urge cross-objections should, as a general rule, be limited to his urging them against the appellant. The contention of the plaintiffs-respondents that they are entitled, as a matter of right, to urge a cross-objection against another respondent is clearly “inconsistent with this view. In Madras it has been definitely ruled by, a Full Bench—see Munisamy Mudali v. Abbu Reddi that under the present rule a respondent can claim relief against a co-respondent by way of cross-objection; but this was on the footing that it is in accordance with the Madras practice under the old section 561 and that their Lordships did not read Order XLI, rule 22, as indicating that the framers of the rules intended to make it clear that the practice should be otherwise. It will, moreover, appear from the judgment of Bakewell, J. in referring the matter to the Full Bench, that the question was regarded as “one not of the jurisdiction of the Court but of practice”. The matter was considered in this Court in Official Trustee of Bengal v. Charles Joseph Smith where Dawson Miller, C.J (Mullick, J. concurring) pointed out that the Madras decision does not refer to Order XLI, rule 33, (which was added by the legislature in 1908) or its bearing on Order XLI, rule 22. The Calcutta decisions in Jadunandan Prosad Singh v. Koer Kallyan Singh, Mathura Mohan Saha v. Ram Kumar Saha and Shib Chandra v. Dulcken, which were referred to in Official Trustee of Bengal v. Charles Joseph Smith do not appear very clearly and definitely to lay down that Order XLI, rule 22, does not enable a respondent as a matter of right to urge cross-objections against a co-respondent. But it still seems clear enough that what was held in the case of Official Trustee of Bengal v. Charles Joseph Smith is that a respondent has no such right, though the very wide discretion given by Order XLI, rule 33, will entitle the court, in those exceptional cases where justice requires it, to entertain objections by one respondent against another Mr. Mullick for the plaintiffs-respondents has endeavoured to distinguish the ruling in. Official Trustee of Bengal v. Charles Joseph Smith by pointing out that the cross objection sought to be urged in that case came not from the plaintiff (as in the cases before us) but from a defendant. I am not impressed by this distinction; and in Gopal Misser v. Partap Mandal another Bench of this Court declined to entertain a cross-objection by the plaintiffs-respondents against a co-respondent. A cross-objection against the appellant stands on a different footing from an objection against a co-respondent; the former comes from a party who is content with the decree of the lower court provided his opponent does not appeal, while the respondent who wishes to urge an objection against a co-respondent is, as a general rule, merely availing himself of an appeal by another party relating to other matters to urge at a late stage what he could and should have urged by way of appeal earlier. There is a little reason to drive the former to file an unnecessary appeal as there is to let the latter act beyond the period of limitation prescribed for appeals; and yet these would be the results if cross-objections were not permitted against the appellant or objections were permitted as a general rule between co-respondents. I would, therefore, hold that the plaintiffs-respondents are not entitled, as a matter of right, to urge their so-called cross-objection against those respondents who were defendants 2 to 6 in suit no. 57 below. But objections of this kind, not coming under Order XLI, rule 22, have been entertained under Order XLI, rule 33, in cases of an exceptional kind. In Maharaja Bahadur Kesho Prasad Singh v. Narayan Dayal* the object of Order XLI, rule 33, was stated speaking generally, to be to enable the appellate court, where its decision interferes with or modifies or extends the decision of the lower court, to give effect to that decision by interfering, if necessary, even with the rights and liabilities of those who are not in fact appealing from the decision of the trial court in view of this decision it is unnecessary to deal in detail with a, large number of cases cited by the learned Advocate for defendants 2 to 6 on the scope of Order XLI, rule 33. Much stress (was laid by him on Rukia v. Mewa Lal, in which the learned Judges, after referring to several English and other cases, observe that “the rule is restricted to cases where, without disturbing the grounds upon which the judgment of the trial court proceeds, the appellate court considers that the decree should be modified in order to do justice to all the parties concerned, including such as have not set the law in motion”. It is, however, not clear from the cases referred to by their Lordships that the rule is so restricted for they themselves seem, to have recognized (see page 71 of the report) that the jurisdiction conferred by the corresponding English rule. Order LVIII, rule 4, will be exercised “where the result of the conclusions at which a court of appeal has arrived affects the legal rights of the parties to the appeal in such a way as to demand a more extensive readjustment of those rights than that for which any of them had asked”. The interpretation adopted in the cases of Official Trustee of Bengali and Maharaja Bahadur Kesho Prasad Singh (already referred to) does not confine the rule to cases where the grounds of the judgment below are left undisturbed; and in the same volume there is the case of Madan Lal v. Gajendra Pal Singh, in which one of the propositions laid down by the learned Judges regarding Order XLI, rule 33, in Rukia's case was doubted. Order XLI, rule 33, is undoubtedly expressed in wide terms and must be applied with caution, so as not to enable a litigant to avoid the provisions of other statutes such as the Limitation Act or the Court-fees Act. There can, however, be no hard and fast rule regarding the cases to which Order XLI, rule 33, may be applied; but one of the tests that may be usefully applied is, in the words of Mookerjee, J. of the Calcutta High Court, “whether the questions which arise between the several sets of parties are so connected that one of them ought not to be allowed to reopen matters so far as he is concerned without opportunity allowed, in the interests of justice, to another to protect himself by urging his objections, even though they may be directed, not against the appellant, but against a co-respondent”—[see Jadunandan Prasad Singh v. Koer Kallyan Singh already referred to]. In the present case the plaintiffs-respondents were content with the mortgage decree given to them by the lower court with priority over the mortgage of 1899 set up by the appellant, though it negatived their superior claim to the house in the possession of defendants 2 to 6. If the appellant's mortgage is now to be held to prevail over that of the plaintiffs, this conclusion itself plainly makes it necessary in the interests of justice that the claim of the plaintiffs to the house should be re-investigated here. It was pointed out on behalf of these defendants-respondents that the plaintiffs would have had to pay court-fees if, instead of being content with the decree of the lower court, they had chosen to appeal in respect of the house. This was undeniable, and the plaintiffs have now, with our sanction paid the necessary court-fees. It cannot be said that they were evading the law of limitation, for there was nothing in law and reason alike to prevent them from being content with the decree of the lower court, and it is only when that decree is disturbed as against them that it becomes necessary for them to ask for a re-investigation of their claim to the house. This, therefore, is a case of an exceptional kind in which we ought, in my opinion, to act under Order XLI, rule 33, and entertain the plaintiffs' objection as regards the house at Arrah.
Corning now to the facts involved in this part of the plaintiffs' cross-objection, all that was said in the plaint was that these defendants were impleaded as parties to the suit on the ground that they were subsequent purchasers (of the house mortgaged by the ekrarnama) with knowledge of the prior encumbrance of the plaintiffs but that if they had no objection to the claim made by the, plaintiffs, they need not enter into defence. The reply, of these defendants is to be found in paragraph 14 of their written statement, where they point out that while the plaintiffs' ekrarnama is dated the 25th of June, 1925, the house in question had been mortgaged in 1894 to one Ramkumar Prasad who obtained a decree on the mortgage in July, 1904, and that in execution of this decree the house was sold by auction and purchased on the 3rd of July, 1905, by one Damri Chaudhuri who sold it to these defendants on the 22nd June, 1907. About these transactions and dates there is no dispute. The only issue on the point raised below was whether these defendants were prior purchasers. Shortly before the trial in the lower court, the plaintiffs applied for leave to amend the plaint for raising issues about the farzi character of the sales of the house and estoppel. This application was refused on the day of trial. The learned Subordinate Judge discussed all the principal issues in the two suits together, but his judgment shows that as regards the house the plaintiffs did argue both the contentions referred to, namely, that the sales were farzi on behalf of Jaibehari and Brijbehari and that the defendants were estopped by the compromise of 1907 from claiming priority over the plaintiffs' ekrarnama. On both these points he held against the plaintiffs. Reference has been made before us to the evidence of Rajaram and Mohan Ram, two of the plaintiffs, and Dukhit Lal their servant, as against that of Basudeo Baid, D.W 1, who attested the kabala executed by Damri in favour of defendants or their farzidar Bulakchand. It is plain that this evidence is utterly insufficient to establish that Damri had purchased the house as a farzidar for Jaibehari and Brijbebhari or that the defendants has done so later on. The three witnesses for the plaintiffs referred to have plainly no knowledge of the real character of the purchase, and though two or three circumstances of a suspicious character were established, the lower court did not feel justified in concluding from them that the purchases were farzi on account of the mortgagors. It has not been urged before us that the suspicious circumstances found by the lower court conclusively establish a case of farzi, but Mr. Mullick has argued that there is an estoppel in the case by reason of the compromise of the 16th July, 1907, in Title Suit No. 146 of 1906 to which I have already referred when dealing with the priority of the mortgage held on mauza Gheora by Musammat Chanda Bibi's predecessors in title. Mr. Mullick urges that but for this compromise of 1907, the plaintiffs would have produced in the suit of 1906 sufficient evidence to establish the farzi character of Damri's purchase of 1905. He also contends that in observing that Damri, though a party to the suit of 1906, did not join in the petition of compromise, the learned Subordinate Judge has not paid sufficient attention to the fact that about three weeks before the compromise Damri had parted with his interest in the house in favour of the defendants (or their farzidar Bulak-chand). We thus come to the terms of the compromise, Exhibit 4, itself. I have already, when dealing with the case of the appellant, referred to the object of the suit of 1906 and quoted the terms in which plaintiffs' sale-deeds and ekrarnamas were affirmed along with the mortgage of 1899 then held by Mahabir. The compromise is silent about the house in Arrah, though in paragraph 19 of their plaint in that suit, the plaintiffs had stated that their vendors had
“fraudulently and collusively got sold at auction and purchased farzi in the name of Damri Chaudhuri, defendant no. 8”,
the house in Arrah. It has been urged on behalf of the plaintiffs that the failure of the compromise to deal specifically with the house as contrasted with its mention of the Gheora mortgage of 1899, taken with the affirming of plaintiffs' ekrarnamas, astablishes the plaintiffs' priority over the mortgage of 1894. Bnt as I have already shown, the object of the suit of 1906 was to get possession of Misraulia and Khurrhi from defendants 2 to 6 and failing this, to get a mortgage decree against Damri in respect of this house and against defendants in respect of other properties. The compromise have to the plaintiffs possession of the two mauza purchased by them, on payment of Rs. 1,500 to defendants 2 and 6, and thus no question arose directly about the house at that time; the plaintiffs' sale-deeds and ekrarnamas were affirmed—in the sense that as regards Misraulia and Khurrhi defendants were no longer to challenge the plaintiffs' title as purchasers, and as regards the properties covered by the ekrarnamas, plaintiffs' right to proceed on those ekrarnamas was also no longer to be questioned. The affirming of the zarpeshgi deed of 1899 appears, on a reference to paragraph 5 of the compromise petition, to be merely an after-thought inserted in order to get Mahabir to join in the compromise; no question of priority in respect of the mortgages had arisen at the time and it is as improbable that the plaintiffs had any in mind, after they secured possession of the purchased properties by paying Rs. 1,500 to these defendants, as that these defendants who by that time had taken a conveyance of the house from Damri (in the name of their farzidar Bulakchand) should have agreed, for no apparent reason, to surrender their priority under the mortgage of 1894 and the sale that followed it. In the circumstances it is a point against the plaintiffs that the petition of compromise does not in fact contain one word against or about the title of these defendants to the house. I am, therefore, unable to accept the plaintiffs' contention that in respect of the house in Arrah they are entitled to priority over these defendants. This part of the cross-objection fails.
The result is that the appeals are allowed and the cross-objections allowed in part. The decree of the lower court will be modified in two respects: (1) plaintiffs to have interest at the bond rate on the amounts decreed in their favour from the date, of suit to the date of judgment and (2) the mortgage decrees in favour of the plaintiffs to be made subject to their repaying to the appellant the amount of the mortgage 1 of 1899 in favour, of Srikishan, namely, Rs. 8,000. The appellant will be entitled to her costs in this and also in the lower court from the plaintiffs who, in their turn, will be entitled to the costs of their cross-objection in respect of the interest from defendant no. 1 in each of the suits. Defendants 2 to 6 in suit no. 57 of 1928 will also be entitled to their costs in respect of the plaintiffs' cross-objection regarding the house in Arrah.
Saunders, J.:— I agree.
Appeals allowed.
Cross-objections allowed in part.