Wort, J.:— This is the defendants' appeal in an action brought by the plaintiff in which he claimed a mortgage decree and also a right to redeem a mortgage decree passed in suit no. 500 of 1921. It raises three questions: the first is a question of law which relates to the doctrine of lis pendens. The question is whether that doctrine as set out in section 52 of the Transfer of Property Act affects the transaction under which the plaintiff got his title. The second question is a question of fact whether that transaction is a real one or merely a colourable one; and the third question raises a number of points as to the respective rights of the parties in the following circumstances.
The owner of six villages executed a mortgage to the predecessor in title of the defendants of one village, namely, Darail, and subsequently, that is, on the 9th of November, 1914, and on the 4th August, 1915, he executed other mortgages of the whole six villages to the predecessor in title of the plaintiff. An action was brought by the mortgagee under a prior mortgage of the 28th January, 1913. The subsequent mortgagee was not joined as a party until the 17th February, 1922. In the meantime on the 4th October, 1921, he had assigned his mortgage to the plaintiff. Judgment was obtained in the suit of 1921 against the mortgagor but Sukhdeo, who had not been a warty, having parted with his interest presumably, did not exercise any right, if he had such at the time, to redeem. I have stated that he was made a party on the 17th February, 1922; but as a matter of fact that was the date upon which the plaintiff made an application to the Court to make him a party, and presumably, therefore, it was some days subsequent to that he was actually joined as defendant. This suit brought by the assignee of Sukhdeo was brought on the 20th of May, 1927.
The first question that is argued by Mr. Khurshed Husnain on behalf of the defendants is that the transaction, that is to say, the assignment of the 4th of October, 1921, gives the plaintiff no title. section 52 of the Transfer of Property Act is as follows:
“During the pendency in any Court having authority in British India, or established beyond the limits of British India by the Governor-General-in-Council or of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court.”
Now so far as regards the rights of Sukhdeo himself are concerned, it is clear, I think, that they disappeared by reason of the judgment and decree in the suit brought by the prior mortgagee, and it is contended that the same results would follow with regard to the rights of Sukhdeo's assignee, namely, the plaintiff.
Mr. Husnain seeks to read the Words of section 52 of the Transfer of Property Act “by any party” as being merely descriptive and having no reference to the time at which the transaction took place by the person who could be described as a party to the suit.
It is contended that the doctrine of lis pendens as set out in section 52 is wider than that of the English doctrine itself to this extent that under the present law of England the doctrine has no effect unless there is registration of the judgment under the Act of 1839. But the English Law is stated by the Lord Chancellor in the case of Bellamy v. Sabine. He says in the course of his judgment—
“It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts of ten so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party”.
In my judgment it is impossible to read the words in section 52 of the Transfer of Property Act “by any party” in the way in which Mr. Husnain seeks to read them and it can have reference only to the date upon which the transaction which it is sought to assail actually took place. In October of 1921 it is obvious from the facts which I have stated that Sukhdeo was not a party to the suit. He was at liberty, therefore, to assign the property to the plaintiff which he did, and in my judgment the transaction is in no way affected by section 52 of the Transfer of Property Act.
The next question is whether the transaction was a genuine one. Mr. Husnain says that it was merely colourable and he relies on a number of facts upon which he bases his argument, the first being that in this suit the plaintiff claims a mortgage decree in respect of Rs. 7,000 only; the consideration for the assignment is said to have been a debt owed by Sukhdeo to his father-in-law amounting approximately to Rs. 17,000. But that point, if it has any significance in regard to the question with which I am dealing, seems to me to be answered by an investigation of the deed of assignment in which we not only find the mortgage of which the plaintiff is an assignee of a part of the consideration but of a large number of other bonds amounting in all to Rs. 16,669-14-0, the amount which it is said that Sukhdeo owed to his father-in-law. That point, therefore, is of no assistance to the defendants.
There is another matter relied upon. A partition had taken place between Sukhdeo and his brothers and one of the witnesses called on behalf of the defendants stated that this transaction was then characterised as being a fictitious one. It is impossible in my judgment on these somewhat flimsy facts to come to the conclusion that the transaction was nothing more than a colourable one.
Now the plaintiff, as I have stated, claimed in his plaint that he may be authorised to redeem the mortgage decree in suit no. 500 of 1921. The learned Subordinate Judge decided the case in favour of the plaintiff, but in his decree he merely gives him a decree for sale of the mortgaged property Darail; he makes no mention of the plaintiff's right to redeem the prior mortgage.
Now there can be no doubt that in the present state of the law the plaintiff has such a right. That right existed was decided in the case of Umes Chunder Sirkar v. Zahur Fatima. Subsequent to that the Transfer of Property Act was enacted and under section 89 it was held that the execution of the mortgage decree had the effect, if I may use the expression, of merging the mortgage in the decree, and to that extent the law as laid down in Umes Chunder Sircar's case was altered. Then section 89 of the Transfer of Property Act was repealed and substituted therefor was Order XXXIV of the Civil Procedure Code. It has now been decided in the case of Sukhi v. Ghulam Safdar Khan that the law is now as it was prior to the passing of the Transfer of Property Act and, therefore, the defendant in this case being the purchaser of the decree in suit no. 500 of 1921 can use his prior mortgage as a shield against the subsequent mortgagor. Therefore, the plaintiff must redeem his mortgage before he can bring the property, namely, the village Darail, to sale.
It is contended by Mr. Husnain that although the plaintiff has a right to redeem he must redeem, to use the expression at the Bar, over against the plaintiff. That contention is based upon the observation of Lord Haldane in the case of Yadalli Beg v. Tukaram. That was a case in which the owner of sixteen fields had mortgaged them in 1893 to the defendant in the action; in 1896 the mortgagor had sold and conveyed one of those fields to the plaintiff in the action; in 1899 the first mortgagee brought a suit against the original mortgagor not impleading the purchaser of 1896 and obtained a decree by consent, and ultimately in execution of that decree the plaintiff mortgagee had purchased nine out of the sixteen fields. The plaintiff purchaser in the sale of 1896 then brought his action for redemption, and it was held that he had a right to redeem the whole mortgage, and, in the course of the judgment, Lord Haldane makes this statement:
“According to English law the respondents would have been entitled to redeem the mortgage in its entirety subject only to the safeguarding of the equal title to redeem of any other person who had a right of redemption”.
It is to be noticed from the fact which I have already stated that the purchase of the mortgagee decree-holder was confined to nine only of the sixteen fields, and, therefore, presumably the right in the other seven fields may have passed to a third party. That point is not dealt with by Lord Haldane specifically. He states that point had not arisen in the case then before them; but the words “the safeguarding of the equal title to redeem of any other person”; it is contended, have been construed, in this Court as referring to the rights of the first mortgagee and, therefore, the first mortgagee, namely, the defendant in this case has a right to use again the expression at the Bar, to redeem over against the plaintiff.
The most important case in this Court is the case of Musammat Azizun-nissa v. Komal Singh. In the meantime there had been a decision of Adami and Macpherson, JJ. in the case of Rai Promotha Nath Mitter v. Ram Kishan, but a perusal of that judgment; in my opinion, does not go beyond the decision in the case of Yadalli Beg v. Tukaram decided by the Privy Council.
We come then to the case to which I have just made reference—Musammat Azizun-nissa v. Komal Singh. The facts that are necessary to notice in that case are these. In 1907 there had been a mortgage of three villages described as NO and P to what I may describe as the first mortgagee Y. Subsequently in 1908 village P had been mortgaged to Z: in 1915 the first mortgagee instituted a suit on his mortgage without impleading the puisne mortgagee Z, and in execution of that decree he had purchased village N. Subsequently the second mortgagee instituted a, suit without impleading the first mortgagee and in execution of his decree village P was purchased by him and subsequently sold to A, a third person. In the meantime the first mortgagee had taken out a further execution and had put up for sale the other villages N and O. Then came the action of A the purchaser in the decree obtained by the second mortgagee for possession of village P. But it is contended that the observations of Mr. Justice Kulwant Sahay in that case bears out the contention of the defendant. The observations to which I refer are these:
“The purchaser of the mortgaged properties in execution of a, mortgage decree acquires not only the interest of the mortgagee but also the equity of redemption of the mortgagor, and he is entitled to redeem other mortgages on the same property created by the mortgagor. The defendant no. 1 as a purchaser of one of the mortgaged properties has acquired the equity of redemption of Jawad Hussain and can claim a right to redeem the entire mortgage of the plaintiffs inasmuch as he is not bound by the decree obtained by the plaintiffs in the suit on their mortgage as her predecessor in title was not made a party thereto”.
But the decision of the Court clearly appears to be that the right to redeem by the person who is in the position in this action of the defendant was limited to the village that had been mortgaged to the subsequent mortgagee. In my judgment, therefore, the case of Musammat Azizun-nissa v. Komal Singh does not bear, out the contention that the words of Lord Haldane in the case of Yadalli Beg v. Tukaram intended to refer to a person in the position of the defendant in this action. I think it is obvious, as contended by the learned Advocate on behalf of the plaintiff, that if the defendant had such a right, the plaintiff's rights arising as a subsequent mortgagee to redeem would be utterly destroyed.
Therefore, the decree of the learned Subordinate Judge must be modified by allowing the plaintiff to redeem the prior mortgage of village Darail which, in execution of his decree, as I have already stated, the predecessor in title of the defendant had purchased and of which he was ultimately given possession. In taking the accounts, therefore, the interest which the defendant is entitled to will be at the bond rate up to the date of possession; but from the time of the delivery of possession, possession must be deemed to be equivalent to interest.
There was one other point which I should have dealt with. It was contended by the plaintiff that he was entitled to redeem by paying the amount which the defendant paid for the property in the execution sale. But it is quite clear on the authorities—and there can be no doubt of that—that the mortgage is still subsisting. The plaintiff can redeem the defendant only on the payment of the amount due under the mortgage. In this case it must be remembered that there was a consent decree, that is to say, the parties had come to terms as to what was due upon the mortgage and it is that amount together with interest which the plaintiff will be under liability to pay in redeeming the defendants.
With these modifications the appeal is dismissed with, costs.
James, J.:— I agree.
Decree modified.