Raj Kishore Prasad, J.@mdashThis is an appeal on behalf of defendants 1 to 8, who are described as defendants 1st party in the suit, out of which the present appeal arises against the judgment and decree dated 24-9-47 of Mr. S. Saghir Hussein 1st Additional Subordinate Judge at Arrah, decreeing the suit of the plaintiffs respondents 1 to 3.
2. The plaintiffs'' suit was for a declaration that the properties mentioned in Schedule A of the plaint belonged to them, and the defendants first party, who are the appellants before this Court, had got no title thereto, and as such the possession and occupation of defendants first party were wrongful.
3. The plaintiffs'' case was that defendant 1 on 14-7-20 executed a mortgage bond in favour of the defendant 9. On the basis of this mortgage bond the defendants 2nd party, who are members of a joint Hindu Mitakshara family with defendant 9 as its karta, obtained in 7-8-35 a final mortgage decree against defendants first party, who also form a joint Mitakshara Hindu family with defendant 1 as its karta, and in execution of that decree purchased the properties mortgaged to them on 10-2-36, and got delivery of possession, over the same through Court on 20-6-36, and thereafter the defendants 2nd party sold the lands in suit, which are 8.90 acres of raiyati lands, under a registered sale deed dated 16-6-43 executed by defendants 9 and 10 in favour of the. plaintiffs, and thereafter they came in possession of the same, but subsequently the defendants first party began to create trouble against the plaintiffs., which led to a proceeding u/s 144, Criminal P.C., which was decided on 9-1-44 in favour of the plaintiffs, and another, proceeding u/s 107, Criminal P.C., in which the defendants first party were bound over, and thereafter in November 1945 the defendants first party dispossessed the plaintiffs from the lands mentioned in Schedule A of the plaint.
The plaintiffs therefore, brought the present suit on 9-7-46 or a declaration of title and possession, and also for recovery of Rs. 2,534-8-0 as past mesne profits and Rs. 400 as value of the sugar-cane alleged to have been looted by the defendants first party on 5-4-45, which led to their prosecution under Sections 143 and 379, I.P.C., in which they were ultimately acquitted. The plaintiffs further prayed for future mesne profits till the date of recovery of possession.
4. The defendants first party appeared in the suit, and filed a joint written statement on 4-11-46, and contested the suit. Their main defence is to be found in paras 12, 13, 22 and 23 of their written statement. The substance of their defence was that, when defendant-9 wanted to take possession of the lands already sold and purchased by them in execution of their mortgage decree the defendants first party objected to their taking possession of the property and as such there arose a dispute between the defendants first party and defendant 9.
Ultimately there was an arbitration in which it was decided that defendant 9 should take Rs. 2,500 by instalments in respect of the lands purchased at auction, and leave the lands in possession of defendants first party, and accordingly the defendants first party paid Rs. 200 as the first instalment, out of Rs. 2,500, to defendant 9 on 28th Jeth, 1936, corresponding to 3-8-36, and defendant 9 wrote out a receipt for the payment of Rs. 200, which was marked Ex. G in the suit.
The defendants first party thereafter paid some more instalments amounting to Rs. 800, but when they went to pay the sixth instalment in 1941, defendant 9 refused to accept it at the instigation of plaintiff 1, which led to a proceeding u/s 144, Criminal P.C., in which the defendants first party were found in possession, and the order u/s 144 was made absolute against the defendants second party. The defendants first party, therefore, said that they were and are always ready to pay the remaining amount of Rs. 1,500 to defendant 1 as settled by the arbitrators.
5. The further defence of defendants first party was, as is to be be found in paras 12 and 13 of their written statement, that plots 1128, 427 and 175 were in usufructuary mortgage with other creditors, who were not parties to the mortgage suit of the defendants 2nd party, and therefore, they cannot get possession of these lands. They further said that the defendants 2nd party did not get khasra Nos. 1043 and 1060 sold by auction, rather they got khasra Nos. 179, 143 and 425 sold with wrong boundaries, which were quite illegal; & instead of khasra Nos. 170 & 1170 which were the mortgaged properties in the final decree, they got khasra Nos. 175 and 1175 sold by auction, on account of which the entire auction sale became illegal.
6. The learned Subordinate Judge found that the story of the Panchayati put forward by the defendants first party was false; Exs. G series, relied upon by them in support of this story, were not genuine documents; they never paid anything to defendant 9; and that the defendants second party auction purchased plots 1943, 1060 and 175, and got dakhaldehani over the same. He further found that the plaintiffs were entitled to mesne profits, which he directed to be determined subsequently in a separate proceeding.
On these findings the learned Subordinate Judge decreed the suit on contest against the defendants first party and ex parte against the defendants second party. Against this judgment and decree the defendants first party, as stated before, have preferred the present appeal.
7. Mr. G.P. Das, appearing for the appellants, has put forward three contentions before us, namely, (1) that there was an agreement between the defendants first and second parties, on account of which it was decided that the consideration money, for which the defendants 2nd party purchased the lands, amounting to Rs. 2,500 should be paid in instalments by defendants first party to defendants 2nd party, and accordingly in pursuance of the panchayati the defendants first party paid to defendants second party Rs. 1000 in five instalments, and they were ready to pay the rest, and as such the plaintiffs were not entitled to possession over the lands in suit; (2) that plots 175, 427 and 1128 were in possession of usufructuary mortgagees, who were not made parties to the mortgage suit by defendants second party, and as such they were not entitled to possession ever these plots as long as the usufructuary mortgagees were not redeemed by the plaintiffs; and (3) that the plaintiffs had acquired no title by virtue of the auction sale to plots Nos. 106, 1043, 1060, 427, 1175 and 175 due to mistake of Khata and plots numbers in the final decree as well as in the sale certificate, and as such these plots must in law be deemed not to have been sold at all.
8. As regards the first contention of Mr. G.P. Das I must at once say that I entirely agree with the Court below that the story of pan-chayati put forward by the defendants first party is a pure concoction, and the receipts, Exs. G series, which have been filed to show payments of five instalments of alleged agreed money, are all forged and have been fabricated for the purpose of the present suit to support their false story, (After discussing the evidence, the judgment, proceeded :)
9. The next contention of Mr. G.P. Das is that the prior and the subsequent mortgagees who were in possession of plots Nos. 427, 175 and 1128 were not made parties to the mortgage suit brought by the defendants second party, and as such they were not entitled to get possession over these plots as against them unless they were redeemed. In order to appreciate this argument it is necessary to mention a few facts. On 7-6-20 a rehan deed was executed by defendant 1 Sheodheyan Singh in favour of defendant 9 Ramlakhan Mahto for Rs. 400 in respect of plot 175, khata 97, with an area of 2.14 acres, Ex. H.
On the same day another rehan bond was executed by Sheodheyan Singh in favour of Ramlakhan Mahto in respect of three plots, out of which one of them was plot No. 427 under khata 51 with an area of 0.59 acres, Ex: H1. After these rehan bonds the mortgage in dispute was executed on 14-7-20 by the defendants first party in favour of the defendants second party in respect of 8 plots of land in khata 97, including plots Nos. 1128 and 175, and two plots of land in khata 51 including plot No. 427.
This mortgage bond, on the basis of which the defendants second party got a mortgage decree, and in execution of which they purchased the disputed plots, is not on the record. The final decree, Ex. 18 however, is on the record, and it shows that in all ten plots were mortgaged, including plots Nos. 1128, 175 and 427, out of which plots Nos. 175 and 427 were in ijara of Ramlakhan, defendant 9, from before. On 6-7-21 the defendants first party executed another rehan bond in favour of Tula Ahir, D. W. 10 for Rs. 400 in respect of the plots in khata 97, including plot No. 1128, Ex. H3.
On 18-6-27 the defendants first party executed another rehan bond in favour of Ramzan Mian and Sk. Rahimuddin for Rs. 2500/- in respect of several plots, including plot No. 427 with an area of 0.56 acres Ex. H2, On 9-7-27 Ramlakhan received Rs. 400 covered by his Ijara'' bond Ex. H, from Nazimuddin and Shamsuddin, as will appear from the endorsement made by Ramlakhan on Ex. H, which was marked as Ex. L. On the same day, that is, 9-7-27, there is another endorsement marked Ex. L1 in the pen of Ramlakhan on Ex. H1 reciting that Ramlakhan had received Rs. 400/-the amount covered by the second bond, Ex. HI, from Nazimuddin and Shamsuddin on that day.
The mortgage suit was brought by the defendants second party against the defendants first party on the basis of the simple mortgage bond dated 14-7-20 after the above transaction, that is, on 21-12-32. To this mortgage suit Nazimuddin or Shamsuddin or Tula Ahir were admittedly not parties. It is, therefore, contended by Mr. G.P. Das that as Nazimuddin and Shamsuddin redeemed the two prior mortgages dated 7-13-20, therefore they were in position of prior mortgages in respect of plots Nos. 175 and 427, and Tula Ahir was a subsequent mortgagee in respect of plot No. 1128, which are the three plots in dispute out of the lands in suit, and, therefore, they were necessary parties to the suit, and when they have. not been made parties to the suit, the decree passed in that suit and the same held in the execution of that decree, are not binding on them, and therefore, the plaintiffs cannot get possession over these plots, in spite of the fact that they have got delivery of possession over the lands in suit through Court.
The first answer to this question is that if the contention of Mr. G.P. Das is correct, then this is a question between the defendants second party and Nazimuddin and Shamsuddin and Tula Ahir, and when they are not disputing the right of the plaintiffs or their vendors, defendants second party to get possession over these lands, how can the defendants first party do so.
I will show later on that the reason why these persons are not objecting to defendants second party, or plaintiffs getting possession over these lands in that as a matter of fact these lands were in possession of the defendants first party themselves when the mortgage suit was brought, and as such the decree and the sale as against the defendants first party are binding on them. In view of my finding hereafter that plot Nos. 175, 427 and 1128 were in possession of the defendants. 1st party themselves, it is unnecessary to consider the objection of Mr. G.P. Das, regarding the alleged non-joinder of party, because this objection does not arise at all.
10. Mr. P.R. Das has contended that the three plots, namely, plots Nos. 175, 427 and 1128, were in possession of the defendants first party themselves at the time when the mortgage suit was brought, and therefore there was no question , of making Nazimuddin, Shamsuddin or Tula Ahir a party to their mortgage action by the defendants, second party.
11. As regards plot No. 175 which was in Ijara under Ex. H with Ramlakhan and, which was redeemed, as will appear from Ex. L, by Nazimuddin and Shamsuddin, Mr. P.R. Das contends that these two persons who paid the money to Ramlakhan were mere volunteers, and as such they could not stand in the shoes of the prior mortgagee. He refers to the following passage in Ghose''s Mortgage, Vol. 1, Edn. 5, page 355:
"I now pass on to the kind of subrogation of which I am mainly going to speak to you today, namely, the substitution of one creditor for, another, not by virtue of any actual assignment, but by operation of law, a right which does not depend upon a mere legal fiction, but upon the most obvious principles of justice and equity and which is recognised in one form or another in almost every system of law. You must not however, suppose that every person, who discharges a mortgage debt is entitled to the benefit of the security held by the mortgagee. As a rule in the absence of an assignment of the security, the person by whom the debt is discharged has no right to avail himself of it. And even a right to claim, an assignment of the. debt does not necessarily carry with it a right to the securities held by the creditor.
''It is one thing to say'', remarks Vaughan Williams, L.J., ''that the debt of the creditor who has been paid off is to be treated as assigned to the lender, who provided the money, and another thing to say that the securities which may be held by the creditor as well as his priority over other creditors should be ceded''. Speaking generally, the right to a cession or assignment of the security can be claimed only by a person who, though not primarily liable to discharge a debt, or liable only in part, -is obliged to pay if for his own protection. It cannot, therefore, be claimed either by the mortgagor himself, or by any person who has assumed the payment of the mortgage debt; nor it would seem, by a purchaser who agrees to buy the property free of encumbrances and undertakes to discharge them all out of the purchase money, but fails to do so."
The third paragraph of Section 92, Transfer of Property Act provides that a person, who has advanced to a mortgagor money, with which the mortgage has been redeemed, shall be subrogated to the rights of the mortgagee, whose mortgage has been redeemed, ''if the mortgagor has by a registered instrument agreed that such persons shall be so subrogated''. Subrogation means substitution, for the person redeeming is substituted for the incumbrancer, whom he has paid off.
To entitle one to invoke the equitable right of subrogation under the Act, as it stood beore the amendment of 1929, he must either occupy the position of a surety to the debt, or must have made the payment under an agreement with the debtor or creditor that he should receive and hold an assignment of the debt as security, or must stand in such a relation to the mortgaged premises that his interest cannot otherwise be protected. Thus a mere stranger who had lent money to the mortgagor to redeem the mortgage debt, but who was neither a surety of the debt, nor interested in the property, had in order to succeed on the equitable doctrine of subrogation to prove that there was an agreement between him and the debtor or creditor that he should receive and held an assignment of the debt as security.
After the amendment of the Act the right of subrogation can be claimed by the lender u/s 92, para. 3, only if the mortgagor has in a registered instrument agreed that he should be so subrogated. The right can no longer be claimed or granted as before, on any slight evidence, or what may be described as the semblance of an agreement. Subrogation is either conventional, or legal. It has been said that subrogation is conventional, when there is an agreement, express or implied, that the person making the payment shall exercise the rights and powers of the original creditor, and that very slight evidence is sufficient to establish such an agreement.
But the law as to conventional subrogation has been amended as stated before, by para. 3 of Section 92, which requires (1) that the agreement of subrogation should be in writing, and (2) that the writing should be registered (see Mulla''s Transfer of Property Act, Edn. 3). Therefore, if even a volunteer, or a mortgagor, pays the mortgage money, he does not stand in the shoes of the mortgagee. Any person, who discharges a mortgage debt, is not entitled to the benefit of the security held by the mortgagee.
In the absence of a registered document, as provided by the third para of Section 92, Transfer of Property Act, no person, merely discharging a mortgage debt, can be entitled to the benefit of mortgagee''s security. Mr. P.R. Das, therefore, contends that it appears from Ex. H2, the rehan bond, executed by the defendants first party in favour of Ramzan Mian and Sk. Rahimuddin, whose heirs and successors in interest are Nazimuddin and Shamsuddin, that Ramzan Mian, and Sk. Rahimuddin, were not given the right to redeem the mortgage, Ex. H, nor any part of the consideration money of Ex. H2 was left with the mortgagees of Ex. H2 to redeem Ex. H and as such there, was no obligation on the mortgagees, or their heirs and successors under Ex. H2 to redeem fix. H, and if they have done so the money paid by them would be considered to be payment made on behalf of the defendants 1st party, and, therefore, plot No. 175, which was in ijara under Ex. H, would no doubt be redeemed by the payment of Nazimuddin and Shamsuddin, but that would enure for the benefit of the defendants first party, and this plot No. 175 will come in possession of the defendants first party, and not of Nazimuddin and Shamsuddin, who paid the money.
These two persons, therefore, were mere volunteers, and by making the payments and redeeming Ex. H they did not stand in the shoes of the prior mortgagee. This contention of Mr. P.R. Das is well founded, and must be given effect to I, therefore, find that by the payment of the money due under Ex. H by Nazimuddin and Shamsuddin the defendants first party were benefited, and plot No. 175 which was in possession of the mortgagee under Ex. H came in possession of the defendants first party on 0-3-27, when Ex. II was redeemed under Exhibit L, that is, long before the institution of the mortgage suit in 1932. (After discussing the evidence the judgment proceeded:)
12. For the reasons given above, I hold that plots Nos. 175, 427 and 1128 were in possession of the defendants first party, and as such there is no question of any other person being in possession of these plots, and not having been made parties to the mortgage action, and therefore the defendants second party got possession against the defendants first party over these three plots also and the plaintiffs can as well without any difficulty get possession over these plots.
13. The third contention of Mr. G.P. Das is that the defendants second party did not ac-quire title to plots Nos. 106, 143, 160, 427, 1175 and 175 and khata 51. In this connection it would be useful to know (sic) specific defence of the defendants first party was in respect of these plots, from para 12 of the written statement the defence of the defendants first party, which we get, is that: (1) plots NOS. 170 and 1170 were the mortgaged properties in the final decree, but the defendants second party got plots Nos. 175 and 1175 sold, (2) plots Nos. 1043 and 1060 were not sold at all, and (3) plots Nos. 179, 143 and 425 were sold, but with wrong boundaries.
14. As regards the objection that plots Nos. 170 and 1170 were mortgaged but Nos. 175 and 1175 were sold, it will appear from Ex. 18, the final decree, that plots Nos.-170 and 1170 were not mortgaged at all, whereas plots Nos. 175 and 1175 were mortgaged, and therefore, they were sold. This objection, therefore, fails.
15. As regards the second objection that plots Nos. 1043 and 1060 were not sold, it appears that in the filial decree as well as in the sale certificate plots Nos, 1043 and 1060 are not mentioned. Instead of these two plots the plots mentioned are Nos. 143 and 160. As far as plot No. 1060 is concerned it appears that the area, the khata number ana the boundaries given for plot No. 160 tally with the area, the khata number and the boundaries of plot No. 1060.
There is, therefore, no doubt that it was a mere scribe''s error, due to which one nought was deft out from 1060. In the writ of delivery of possession, Ex. 4, and in the sale deed of the plaintiffs, Ex. 5, however, the correct plot No. 1060 is mentioned.
16. As regards plot No. 1043, the area and khata number of plot No. 143 tally with the area and the khata number of plot No. 1043. In the final decree the correct boundaries of plot No. 1043 are given. But in the sale certificate the boundaries of plots Nos. 143 and 160 are the same. There is no plot Under khata 97 with the areas and boundaries given in the sale certificate. In the writ of delivery of possession and in the sale deed of the plaintiffs the correct plot No. 1043 is mentioned.
But in the absence of the khatian of the entire village it cannot be said definitely that there is not plot No. 143 with the boundaries given in the sale certificate belonging to the mortgagors under any other khata in this village. It cannot therefore, be said that really plot No. 1043 was sold, and not plot No. 143. If the boundaries would have tallied then I could find like plot No. 1060 that plot No. 143 was a mistake for plot No. 1043. I, therefore overrule the contention of Mr. P.R. Das regarding plot No. 143.
17. Mr. P.R. Das contends that the mistake in the final decree and the sale certificate in mentioning plot No. 160, instead of plot No. 1060, is not sufficient to affect the title of the defendants 2nd party, or of the plaintiffs. He contends that here is a case of mere misdescription, and there is no question of identity, because if there had been an existing property known as plot No. 160, under khata 97 with the areas and boundaries given, then it could have been said that what was sold was No. 160 and not No. 1060 but there is no such existing and identifiable property known as plot No. 160 under khata 97 with the areas and boundaries given. He relies on ''Thakur Barmha v. Jiban Ram Marwari 41 Ind. App. 38 (PC) (A), in which it was laid down that if there is a case of misdescription, it could be treated as a mere irregularity. A property fully identified in the schedule may be in some respects misdescribed, and in such a case the Court has to deal with misdescription, and not identity.
The mistake is not one of identity of the property, but a mistake of description. If there Is an existing property, accurately described in the schedule, then it will be considered that the property in question passed by the sale, in spite of a little misdescription. In the case of Thakur Barmha (A), referred to above, their Lordships of the Judicial Committee of the Privy Council had to deal with identity; and not description, and, therefore, their Lordships held that there was no power to sell in judicial proceedings a property different from the property attached. In such a case decree-holders could not turn an authority to sell one property into an, authority to sell another and a different one.
Mr. P.R. Das also relies on
It was held in this case that where a property has been accidentally misdescribed in the mortgage bond and the mistake has been repeated throughout the proceedings to enforce the mortgage, but where there is no doubt as to the identity of the property mortgaged and the property sold at auction, the Court has ample power to amend the decree, and such a case is eminently one in which the powers of amendment should be exercised.
The rule is clearly settled, that in construing a deed purporting to assure a property, if there be a description of the property sufficient to render certain what is intended, the addition of a wrong name, or of an erroneous statement as to quantity, occupancy, locality, or an erroneous enumeration of particulars will have no effect. When there is a sufficient description set forth of premises by giving the particular name of a close, or otherwise, we may reject a false demonstration.
Where the description is made up of more than one part, and one part is true and the other false, there, if the part which, is true describes the subject with sufficient legal certainty, the untrue part will be rejected as falsa demonstratio, and will not vitiate the grant or devise. The doctrine of falsa demonstratio non nocet is not to be confined to cases where the first part of the description is true and the latter untrue, it being immaterial in what part of the description the falsa demonstratio occurs.
If in the words of description there is a sufficiently certain definition of what is conveyed, inaccuracy of dimensions, or of plans as delineated will not vitiate or affect that which is there sufficiently defined (see ''Cowen v. Truefitt, Ltd. (1898) 2 Ch. 551 (C); ''Cowen v. Truefitt, Ltd. (1899) 2 Ch. 309 (D); and ''Mellor v. Walmesley (1905) 2 Ch. 164 (E).
The real test in cases of this description is what did the Court intend to sell, and what did the purchaser understand that he bought (see Pettachi Chettiar v. Sangili Veera Pandia Chinnathambiar 14 Ind. App. 84 (PC) (F). ) If there is a property existing and identifiable, accurately described and fully identified in the schedule, but in some respects it is misdescribed, it will be a case of misdescription, which would be treated as a mere irregularity, and it will not affect the title of the purchaser.
The question really, in such cases, is whether the defect is of the nature of a misdescription of the property, or a case of a non-existent property. Where, therefore, there is no doubt as to identity of the property mortgaged, and the property sold at court auction, it will not be a case of identity, but of mere misdescription.
18. In the present case, for the reasons given above, I find that there is an existing and identifiable property with khata 97 and with areas and boundaries given, which answer the descriptions of plot No. 1060, whereas there is no existing property known as plot No. 160 under khata 97 with the areas and boundaries given. Therefore, the mistake in omitting the nought from 1060 will not affect the title of the defendants 2nd party. I, therefore, hold that plot No. 1060 was sold at the auction, which was purchased by the defendants 2nd party. (After discussing, the third objection the judgment proceeded).
19. In the result, the appeal is partly allowed, the plaintiffs'' suit in respect of plot No. 1043 is dismissed and the decree of the Court below is modified accordingly. Plaintiffs will get future mesne profits as indicated above. Plaintiffs'' claim for price of sugarcane is disallowed. In the circumstances of the case, each party will bear its own cost of this Court.
Rai, J.
20. I agree
