Prinsep and Banerjee, JJ.
1. Amirunnessa, though made a defendant, has made no defence. Her son Abdul Hye, another defendant, has set up his own right as one of the heirs of his brother Wahed Ali, to whom he states his father Abdul Ali made a gift of the properties in suit. This part of the case it will be unnecessary to consider as no question of Abdul Hye's right has been raised before us.
2. The lower Court has given the plaintiffs a decree, holding that the conveyances to Amirunnessa set up by the Roys were not real but benami; that the properties in dispute continued in Abdul Ali's possession, and at his death formed portion of his estate up to the date of the plaintiffs' purchase, and that consequently they passed to the plaintiffs.
3. Against that decree the Roys have preferred this appeal, and the points urged on their behalf are:
First, that the plaintiffs have acquired no title by their purchase at the execution sale, as that sale was invalid by reason of there having been no attachment.
Secondly, that the Court below was wrong in holding that the Roys were bound by the result of the claim case instituted by Amirunnessa, or, in other words, that the doctrine of lis pendens was applicable here.
Thirdly, that the plaintiff, on whom lay the burden of proof, has not made out the benami character of the conveyances from Abdul Ali to Amirunnessa, but, on the contrary, it was established by evidence that they were real, bond fide, and valid; and that in the determination of this matter the Court below has referred to documents which were inadmissible in evidence.
Fourthly, that even if the said conveyances were benami and fictitious, still the Roys, who had advanced money to, and taken the mortgage from, the ostensible owner, Amirunnessa, in good faith, without any notice of Abdul Ali's secret title, are entitled to succeed as against the plaintiffs, who are the representatives of Abdul Ali; and
Fifthly, that the Court below was in error in holding that the plaintiffs were second mortgagees in respect of the properties in suit.
4. We shall consider these points in the order in which they have been stated above.
5. We do not think there is much force in the first contention of the appellants. To prove the fact of attachment, the plaintiffs have put in attested copies of prohibitory orders of the Judge, dated the 3rd May 1872 (Exhibit III-A), of an order of the Judge, bearing the same date, directing the affixing of the notice of attachment in the Collectorate (Exhibit II); and of the reports of the serving peons (Exhibits I and IV), stating that the properties have been duly attached; and they have examined the serving peon, Dagu Singh. It is true that the peon could say nothing as to the service of the processes from memory; and the reports having been neither written nor read by him, and he being able only to attest his signatures to those documents, he could not be allowed, under Section 159 of the Evidence Act, to refresh his memory by referring to them. But whatever defect there may be in the evidence of the peon is fully cured by the statement of Amirunnessa, the predecessor in title of the Roys, made before the execution of the mortgage to them in her petition of objections, dated the 11th July 1872 (Exhibit E), in which she admitted that the properties in dispute had been attached. It is argued, however, that the subsequent order of the Judge, dated the 28th December 1872 (Exhibit Z4), releasing the properties had the effect of removing the attachment, and as it was never afterwards renewed, the sale in execution of the plaintiffs' decree took place without any attachment. But then it should be borne in mind that the order of the Judge was set aside on appeal, and the case was remanded for further investigation; and it was settled between the plaintiffs and their judgment-debtors, on this amongst other conditions that the properties now in dispute should continue under attachment until the satisfaction of the decree. We do not say that the appellants are bound by that arrangement; that is a point which requires further consideration, and we shall come to it presently. All we now say is that that arrangement which was certainly binding as between the parties to the execution proceedings would be a sufficient answer to the appellant's objection, that the sale in execution of the plaintiff's decree was not valid even as a sale of the right, title, and interest of their judgment-debtors, by reason of want of previous attachment.
6. Nor are we satisfied that a sale in execution of decree after it is confirmed and after a sale certificate is granted to the purchaser, is nevertheless to be regarded as a nullity by reason of absence of attachment. In Sharoda Moyee Burmonee v. Wooma Moyee Burmonee 8 W.R. 9 Jackson, J. held that an attachment was not an essential preliminary in an execution sale. In Luchmiput v. Lekraj Roy 8 W.R. 415 the Court held that a sale without attachment was irregular; but as that was a case of sale of moveable property, and the suit was one for damages, the Court was not called upon to decide whether the sale should be regarded as a nullity. In Macnaghten v. Mohabir Prosad I.L.R. 9 Cal. 656 the question whether want of proper service of the notice of attachment would affect the sale was raised, but was not gone into, as the point had been given up in the First Court. A Full Bench of the Allahabad High Court has, it is true, held in the case of Mahadeo Dubey v. Bhola Nath Dichit I.L.R. 5 All. 86 that a regular attachment is an essential preliminary to a sale in execution of a money decree; but with all respect for the learned Judges who decided that case, we think we ought to follow the view taken by this Court in Sharoda Moyee Burmonee v. Wooma Moyee Burmonee 8 W.R. 9. We quite agree with Jackson, J. in thinking that an attachment is a measure resorted to for the protection of the decree-holder and the purchaser against intermediate alienations, and we see no sufficient reason why its absence should render a sale void after it has been duly confirmed and a sale certificate granted to the purchaser.
7. The second contention of the appellants, that they are not bound by the compromise entered into between the plaintiffs and Amirunnessa in the claim case, is, we think, perfectly sound. The facts bearing upon it stand thus: The plaintiffs having in execution of the decree held by them against Abdul Ali's estate, attached the properties now in dispute along with other properties, Amirunnessa, the widow of Abdul Ali, and one of his heirs, put in a petition of objection, on the 11th of July 1872, claiming those properties as her own, by right of purchase from her husband in lieu of her dower; and her claim was allowed by the District Judge, and the properties ordered to be released from attachment on the 28th December 1872. After that order was passed, Amirunnessa, on the 14th of Joist 1280, corresponding to some time in May 1873, by a registered deed mortgaged the properties in dispute to the Roys. An appeal was preferred against the Judge's order of the 28th December 1872, but whether before or after the mortgage to the Roys it is not quite clear. In the view we take of the matter, as will appear presently, the exact date of filing the appeal, however, becomes immaterial. On the hearing of the appeal the case was, on the 10th of July 1873, remanded to the First Court for further investigation (see Exhibit 35); and after remand the case was, on the 30th of May 1874, settled by a compromise between the plaintiffs and Amirunnessa, by which, amongst other conditions, time was granted to Amirunnessa to pay off the decree, a 12 annas share of the properties claimed was released from attachment, and a 4 annas share thereof (including the properties, now in dispute) was continued under attachment and declared to be liable under the decree; the properties, however, being described both by the plaintiffs and by Amirunnessa in their respective petitions as having been obtained by Amirunnessa from her husband, under the two kobalas, dated the 29th Pous 1266 and the 25th Kartick 1269; and the order of the Court was simply that the case be struck off. The decree not being satisfied, the plaintiffs took out execution, and after some fruitless opposition by Amirunnessa, the properties now in dispute were on the 27th of November 1882 sold and purchased by the plaintiffs. It is worthy of notice here that in the sale proclamation prepared at the plaintiff's instance and pursuant to which the properties were sold, those properties were described as subject to the mortgage created by Amirunnessa in favour of the Roys (see Exhibit Z2).
8. Upon these facts it was contended for the plaintiffs that the Roys, whose mortgage was created during the pendency of the claim case, were bound by the result of that case; and consequently by the execution sale which eventually took place and at which the plaintiffs have become the purchasers. On the other band, it was urged on behalf of the Roys that they were not so bound, first, because at the date of their mortgage the claim case had terminated by the release of the properties by the First Court, and there was nothing to show that any appeal against the First Court's order was then pending; secondly, because the proceedings terminated by a compromise and not by a decision of the Court; and thirdly, because the final order of the Court was that the case be struck off, and the compromise, if it is to be regarded as the result of the claim proceedings, was not such a result as might be expected to take place from the nature of the case.
9. There is some conflict of authority touching the soundness of the first two reasons; see Inderjeet Koer v. Pooti Begum 19 W.R. 197; Chunder Kumar Lahori v. Gopee Kristo Gossamee 20 W.R. 204; Gobind Chunder Roy v. Guru Charan Karmokar I.L.R. 15 Cal. 94 and Sugden on Vendors and Purchasers page 758 upon the question whether the possibility of an appeal is a sufficient lis pendens so as to bind a transferee by the result of the appeal; and Nadarunnessa Bibee v. Azhur Ali Chowdhury 7 W.R. 103; Raj Kissen Mukerjee v. Radha Madhub Haldar 21 W.R. 349; Monohur Chowdhury v. Hurryhur Dull 3 Shome 23; and Vithonadayyan v. Subrarnanya I.L.R. 12 Mad. 439 upon the question whether a purchaser pendente lite is bound by a consent decree. If the matter had been untouched by authority, we should have felt inclined to answer both these questions in the negative. As, however, the appellant's contention is, in our opinion, fully borne out by the third reason advanced in support of it, we do not think it necessary to pronounce any decision as to the correctness of the other two reasons. In Kailash Chunder Ghose v. Ful Chand Jahari 8 B.L.R. 474 Couch, C.J. in considering the liability of a purchaser pendente lite, observed: 'Then the question is by what proceedings in the suit is he bound? Is he bound by the proceedings which arose from the nature of the suit, and from the case set up, and the relief prayed in the bill, or is he to be bound by any order which the Court may be induced by the parties to make in the course of the suit? I can find no authority which goes to the extent of saying that because he does not think fit to become a party to the suit, he is to be hound by any order whatever that may be made. It seems to me that he ought only to be bound by proceedings which from the nature of the suit, and the relief prayed, he might expect would take place.' These observations were followed in the case of Kaseemunnissa v. Nilratna Bose I.L.R. 8 Cal. 79, and we think they are applicable to the present case. Here the final order of the Court was that the case be struck off; and that in itself was perfectly harmless so far as the rights of the Roys were concerned. The compromise did not contain any admission that the 4 annas share of certain properties that was to continue under attachment, and to be answerable for the decree, formed part of the estate of Abdul Ali; on the contrary, it proceeded upon the basis of the said properties being the properties of Amirunnessa by purchase, and being liable to be sold in satisfaction of the plaintiff's decree only by virtue of Amirunnessa's consent. Amirunnessa, who claimed the properties in her own right, was also, as one of the heirs of Abdul Ali, a judgment-debtor under the decree; under the compromise she obtained time to pay off the decree; and in consideration of that and upon the immediate release from attachment of a 12 annas share of the properties claimed by her, she consented to the remaining 4 annas share being made liable under the decree. Such being the nature of the arrangement by which the claim case was settled, we do not think that the Roys as alienees pendente lite are bound by it.
10. [Their Lordships then considered the facts necessary for the decision of the third question which are immaterial to this report, and continued:]
11. Upon all the foregoing grounds we think the conclusion arrived at by the Court below, that the kobalas in question are benami documents, is correct.
12. It remains now to consider the last two grounds urged on behalf of the appellants, and upon those two grounds we think they are entitled to succeed. It is not denied that the mortgage bond, dated the 14th Jaista 1280, in favour of the Roys (Exhibit G), was duly executed by Amirunnessa; and that the money for which they obtained the decree, dated the 28th March 1878 (Exhibit Z5), was really due. Amirunnessa was the ostensible owner of the properties in dispute. Her name was registered in the Collectorate in respect of one of these properties (see Exhibit T), and Abdul Ali by a petition (Exhibit 2) admitted before the Collector that she was the owner of it. And she mortgaged them as properties which she had acquired by purchase. There is nothing to show that they had any notice of the benami character of the conveyances in Amirunnessa's favour or of the secret title of Abdul Ali. On the contrary, the plaintiffs in the sale proclamation, prepared at their instance (Exhibit Z2), caused to be inserted a notice that those properties were subject to the mortgage in favour of the Roys; and this affords the strongest possible evidence of the bona fides of the mortgage. On the 28th March 1878, the Roys obtained a decree on their mortgage; and in execution of that decree they purchased the properties in dispute on the 14th of November 1884. The decree was clearly a mortgage decree declaring the liability of the mortgaged properties for the satisfaction of the judgment debt. It was argued that as the plaintiffs had become second mortgagees of the same properties, under the compromise of the 30th May 1874, made in the claim case, they were necessary parties in the suit of the Roys upon their mortgage, and not having been made parties to it, they were not bound by the decree made in it. This argument would have been correct if the compromise had been duly registered or embodied in the decree. As that was not done, the plaintiff's cannot claim the position of second mortgagees; and as they had acquired no other interest in the properties before the date of the mortgage decree, the decree is not defective by reason of their not being parties to it.
13. That being the state of facts, as against Abdul Ali, who allowed Amirunnessa to hold herself out to the world as the owner of the properties in dispute and against persons claiming through him, the Roys have a good title, as bond fide mortgagees, and auction purchasers, in execution of their mortgage decree see Ram Coomar Koondoo v. McQueen 11 B.L.R. 46; 18 W.R. 166; L.R.I.A. Sup. Vol. 40 and Luchmun Chunder Geer Gossain v. Kali Churn Singh 19 W.R. 292.
14. It has been argued that the plea of bona fide purchase for value without notice has neither been raised in the defence, nor made the subject of an issue; and so the appellants are not entitled to succeed upon it. But this objection is sufficiently answered by the case of Luchmun Chunder Geer Gossain v. Kali Churn Singh cited above. In that case the Judicial Committee observe: 'Now, the defendants had purchased under a deed representing that this property had been purchased out of the wife's stridhan. They knew nothing as to the real facts of the case; they stated what they believed the facts to be, taking the facts as they ware represented at the time of the purchase. They believed the deed which represented that the purchase money was the wife's stridhan, and they believed the representations which had been made by the husband in his life time They stated in their defence what they found represented upon the purchase deed of the wife. They merely stated what they were led by the representation to believe, namely, that the property was purchased by means of the stridhan funds of the wife; and that, consequently, it did not pass to the sons upon the death of their father; but that the wife, having purchased the property out of her stridhan, was entitled to sell it. It appears then to their Lordships that the pleadings were sufficient to raise the question.' And then, after noticing the issue raised in the case, which was, whether the property belonged to the husband or to the wife, their Lordships go on to say: 'If the defendants were entitled to avail themselves of the estoppel in consequence of the misrepresentation of the husband, they are entitled to use that estoppel as matter of proof, and they use it to prove that the durputnee was not purchased out of the father's own property, but that it was obtained by the mother Ulpa with her own stridhan, and that she herself held possession of it. So they prove the issue on their part by means of the estoppel.' We think these observations are fully applicable to the facts of this case as given above.
15. But then it was further contended that the plaintiff's, as execution purchasers of Abdul Ali's interest, were not his representatives and that an estoppel that would bind Abdul Ali would not necessarily bind them; and in support of this contention Richards v. Johnston 4 H. & N. 660 and Lala Parbhu Lal v. Mylne I.L.R. 14 Cal. 401 were relied upon as authority. On the other hard, the case of Paresh Nath Mukherji v. Anath Nath Deb I.L.R. 9 Cal. 265 was cited for the appellants, to show that a mortgagee who had purchased in execution of his decree on the mortgage was bound by an estoppel that was operative against the mortgagee. We may observe that Richards v. Johnston was cited in the argument before the Judicial Committee in the last-mentioned case, but their Lordships did not apply the rule there laid down to that case. Now in the present case, though the plaintiffs were not mortgagees from Abdul Ali or his heirs, yet as their right to hold the properties in dispute liable for the decree resulted from compromise between them and Amirunnessa, we think their position is more analogous to that of the auction-purchaser in the case of Paresh Nath Mukherji v. Anath Nath Deb than to the position of the execution purchaser in Lala Parbhu Lal v. Mylne; and we therefore hold, upon the authority of Paresh Nath Mukherji v. Anath Nath Deb that the plaintiffs are estopped from questioning the title of the Roys in this case.
16. That the application of the doctrine of estoppel in this case does not lead to any injustice will be further seen from the following considerations. The heirs of Abdul Ali are undoubtedly estopped from denying the title of the Roys. As for the plaintiffs, they not only allowed Amirunnessa to state in her petition of compromise in the claim case, that the properties in dispute had been obtained by her from her husband by purchase, and accepted the compromise upon the basis of that statement; but in the sale proclamation pursuant to which they made their purchase, they caused a notice to be inserted that those properties were liable under the mortgage to the Roys; and that a decree had been obtained under that mortgage. They had the benefit of that notification, which obviously enabled them to purchase properties yielding, according to their own witness, Anand Mohun, upwards of Rs. 1,200 a year for the grossly inadequate sum of Rs. 900; and they cannot now be heard to say that the mortgage is not binding on them. They cannot be allowed to affirm and disaffirm the same transaction just as it suits their purpose.
17. The result is that this appeal must be allowed, and the decree of the lower Court reversed, and the plaintiff's suit dismissed, with costs in both Courts.