PURAN MAL Vs. SHIVA LAL

JUDGEMENT

(1.) This is a plaintiffs appeal under the Letters Patent from a judgment of a learned Judge of this Court reversing the decree of the lower Appellate Court.

(2.) It appears that one Inayat Khan and his three brothers were entitled to 5-6th share in a village, the remaining l-6 belonged to a lady. Instead of mortgaging his l-4 out of the 5-6th, Inayat Khan made a mortgage of 1-4 share in the village to the present plaintiffs. This came to about 17 bighas odd and the remaining l-4 of l-6 came to about 2 bighas. Subsequently a sale-deed was taken from the lady in the names of the sons of Inayat Khan and their wives whose names were entered in the revenue papers. The defendants, in execution of a money decree against the sons and their wives, got 1-4 of l-6 share belonging to the lady attached and put up for sale, and they purchased it themselves. Now, the plaintiffs have brought this suit for sale on the basis of their mortgage-deed and wish to enforce the security against the extra share, namely 1-4 of 1-6 which had been included in the mortgage, but which at that time did not belong to Inayat Khan. In the plaint there was no reference to Section 43, Transfer of Property Act, and accordingly there was no issue on this point, but the point appears to have been pressed before the trial Court which went into the question. The point was again considered by the lower Appellate Court and the lower Appellate Court came to the conclusion that the plaintiffs were entitled to enforce their equitable right under Section 43 against the defendants auction-- purchasers. On appeal a learned Judge of this Court felt that the question of Section 43 being a mixed question of law and fact ought to be investigated. He accordingly sent down two issues to the Court below for determination with liberty to the parties to produce fresh evidence. The findings returned by the lower Appellate Court were to the effect that Inayat Khan was the real owner and that his sons and their wives were mere benamidars and that the plaintiffs were entitled to enforce their rights against the defendants.

(3.) The learned Judge of this Court , on the basis of these findings, came to the conclusion that in spite of them the suit should fail as regards this extra share. The basis of this decision is that the word "transferee" in the proviso to Section 43 is wide enough to cover an auction-purchaser and that therefore the present defendants who purchased the property for consideration and in good faith and without notice of this equitable charge are protected. He further expressed the opinion that the defendants, having purchased the supposed interests of the benamidars who were the ostensible owners of the property with the implied consent of Inayat Khan, are entitled to protection on account of Inayat Khan's conduct. In appeal it is urged before us that neither Section 41 nor the proviso to Section 43 can apply to an auction--purchaser.