JUDGMENT
Jwala Prasad, J.
1. The appellant seeks to redeem a mortgage over 1 bigha, 2 kathas, 10 dhurs of kasht land, part of a holding of 2 bighas, 5 kathas.
2. This holding originally belonged to three brothers, Tulsi Prasad, Lakshmi Prasad and Gobindjee. On the 3rd of June 1896 they execrated two mortgage-deeds by conditional sale for Rs. 400 each: one in favour of two brothers, Narain Das and Iser Das, defendant No. 2, and the other in favour of Liakat Hussain and Rajab Ali in respect of the remaining moiety of the holding 1 bigha, 2 kathas, 10 dhurs, and the mortgagees same into possession thereof.
3. On the 1st July 1901 these mortgagees executed a simple sub-mortgage in respect of their rights under the deeds of the 3rd June 1895 in favour of Sahebzada Singh, brother of Isri Singh defendant No. 1, for Rs. 700.
4. On the 19th January 1912 Lakshmi Prasad and Gobindjee, after the death of their brother Tulsi Prasad, executed a sale-deed in respect of 1 bigha, 2 kathas, 10 dhurs of their holding, which was in the mortgage of Narain Das and Iser Das by the deed of conditional sale of 1896, for Rs. 500. Us. 100 was paid in cash to the vendors and the balance Rs. 400 was kept in deposit with the plaintiff vendee for payment to the mortgagees Narain Das and Iser Das. The plaintiff’s case was that this money was paid to the mortgagees per registered receipt, dated the 9th February 1912.
5. On 2nd June 1913 Sahebzada Singh, brother of defendant No. 1, purchased the prior baiulwafa mortgage right of Narain Das and Iser Das defendant No. 2 in the entire 2 bighas, 5 kathas, in execution of his decree passed on simple mortgage of the 1st July 1901. On the strength of this purchase he dispossessed, on the 29th July 1913, the plaintiff from 1 bigha, 2 kathas, 10 dhurs purchased by him. But upon an objection filed by the plaintiff under Order XXI, rule 100, he recovered possession, Sahebzada Singh then brought a regular Suit No. 145 of 1914 for possession over 1 bigha, 2 kathas, 10 dhurs and obtained a decree. In that suit he claimed to have purchased under his simple mortgage decree not only the baiulwafa or mortgage right of Narain Das and Isar Das of 1896 but also the entire kasht right of the original tenants Tulsi Prasad, Lakshmi Prasad and Gobindjee It was, however, held that Sahebzada Singh had purchased only the said prior mortgage right, but that the plaintiff’s plea of payment was not proved and, therefore, Sahebzada Singh got possession of the 1 bigha, 2 kathas, 5 dhurs in question as a prior mortgagee under the baiulwafa of 1896.
6. The term of this baiulwafa or mortgage by conditional sale was from 1303 to 30th Jaith 1323 and, therefore, on the expiry of the term the plaintiff as purchaser of 1 bigha, 2 kathas, 5 dhurs deposited in Court on the 20th May 1916 the mortgage money Rs. 400 for its redemption. Notice of the deposit was served upon Sahebzada Singh, the purchaser of the mortgage right. He declined to take the money and redeem the mortgage. Hence the plaintiff as purchaser of 1 bigha, 2 kathas, 5 dhurs kasht right of the original mortgagors under the sale-deed, dated the 19th January 1912, brought the present suit for redemption and recovery of possession against Isri Singh, the surviving brother of Sahebzada Singh now deceased, who is in possession of the property as purchaser of the baiulwafa or mortgage right by conditional sale of Narain Das and Iser Das. Narain Das is dead. Hence Iser Das, a sole surviving brother, has been made a party as defendant No. 2. The suit is, therefore, against the mortgagee Narain Das and the purchaser of the mortgage right Isri Singh.
7. Iser Das, the original mortgages, did not appear in this litigation although summons was served upon him. Defendant No. 1, Isri Singh, as purchaser of the mortgage right, only contested the suit. He pleaded inter alia that the sale-deed, dated the 19th January 1912, propounded by the plaintiff was without consideration and was a collusive transaction; that the plaintiff acquired no right under the sale to redeem or to recover possession of the property: that Lakshmi Prasad and Gobindjee had no right to execute the sale-deed in the plaintiff’s favour inasmuch as after the baiulwafa, the mortgage by conditional sale of 1896 sought to be redeemed, the mortgagors sold their kashtkari right in the land in dispute to the mortgagees Narain Das and Iser Das and the said mortgagees became absolute purchasers of the kashtkari rights and that the entire holding, including the land in dispute, was purchased by the defendant in execution of a simple mortgage decree against his mortgagor a Narain Das and Iser Das. The following issues were laid down for trial by the Munsif :
Is the sale-deed, dated the 19th January 1912, genuine and for consideration (Issue No. 1.)
Is defendant No. 1 a tenant of the land in suit, or is he only a mortgagee? If the latter, is the plaintiff entitled to possession of the disputed land on redemption of the mortgage debt? (Issue No. 2).
8. Issues Nos. 3 and 4 relating to mesne profits and other reliefs that the plaintiff might be entitled to need not be referred to for the purposes of this appeal.
9. The Munsif decided the aforesaid issues in favour of the plaintiff and against the defendant and decreed the plaintiff’s suit.
10. Defendant No. 1 appealed to the District Judge of Chapra making the plaintiff and defendant No. 2 Iser Das as respondents. The appeal was heard by the Subordinate Judge.
11. The finding of the Munsif on issue No. 1 that the plaintiff’s sale deed, dated the 19th January 1912, is genuine, and on the first part of issue No. 2 that defendant No. 1 was not a tenant of the land but was only a mortgagee thereof by virtue of his purchase of the prior mortgage by conditional sale of 1896, was accepted as correct by defendant No. 1. The contest before the Subordinate Judge was only with respect to the second part of issue No. 2 “Is the plaintiff entitled to possession of the disputed land on redemption of the mortgage-debt?”
12. The contention of defendant No. 1 was that long before the sale-deed of 1912 Exhibit 3 propounded by the plaintiff, the kashtkari right in the disputed land had been conveyed away by the plaintiff’s vendors Lakshmi Prasad, Tulsi Prasad and Gobindjee to the mortgagees Narain Das and Iser Das under the deed of conditional sale by means of a sale deed executed in their favour of 12th February 1902 (Exhibit 1). So the plaintiff acquired no right to the property by virtue of his sale.
13. The Munsif and the Subordinate Judge have differed in their decision on this point, the former holding that the sale-deed of 1902 (Exhibit 1) was not given effect to and acted upon and the latter holding that it was. It appears that after the execution of the sale-deed, Tulsi Prasad the vendor and Iser Das the vendee applied to the Hathwa Raj, proprietor of 8 annas of the land, for mutation of names on the strength of the sale-deed and the Manager, Hathwa Raj, sanctioned the same and issued a hukumnamah to the Sajawal and the Patwari for entering the purchaser Iser Das’s name in the jomabandi and realising rent from him (vide applications Exhibit D-I and M of July and September 1902 and Office Note Exhibit K and hukumnamah Exhibit D). This was done and an account of rent due from Iser Das was prepared (vide Tirij Wasil Bakis and Hisabs Exhibits E-l to E-4 and J-l to J-4 for the years 1311, 1313–1316), but no rent ever appears to have been paid.
14. In rent suits brought by the proprietor of the other 8 annas Misri Bibi against the original tenant Lakshmi Prasad in the years 1905 and 1907, Lakshmi Prasad stated that he had sold the property to Iser Das and Narain Das by the sale-deed of February 1902 and that he was not liable for the rent as the purchasers were in possession (Vide Exhibits G and G-1). Iser Das also filed a petition (Exhibit C-l) to be added as a defendant in the suit of 1907 and in 1904 he had applied for depositing money due under a rent-decree so as to protect the property from being sold in execution (vide Exhibit N-l). Both the Courts below have considered these documents but have come to different conclusions. The Munsif held that these are paper transactions, that the vendor and the vendee were trying to have the sale recognised, but the 8-annas proprietor Musammat Misri Bibi persistently refused to do so and the Hathwa Raj, although it ordered the name of the purchaser Iser Das to be entered, there is no evidence that it ever realised any rent from the purchaser. Not a single rent receipt has been filed nor has any counterfoil been called for from the Raj. On the other hand the Subordinate Judge holds that the aforesaid documents shew that Lakshmi Prasad admitted the sale and Iser Das asserted his right under it and the 8 annas proprietor Hathwa Raj recognised it. and hence the deed was acted upon.
15. Even if this finding of the learned Subordinate Judge be accepted the difficulty arises as to the effect of the finding upon the suit in question. This leads to the consideration of Exhibits F and F-l. Both the Courts below have relied upon these Exhibits for their respective conclusions. These are two petitions, dated the 22nd November 1913, filed by Lakshmi Prasad in the claim case No. 19 of 1913 under Order XXI, rule 100, brought by the present plaintiff against Sahebzada Singh, brother of defendant No. 1, who after the purchase of the prior mortgage of 1896 at an auction-sale in execution of his simple mortgage-decree had dispossessed the plaintiff. By means of these petitions Lakshmi Prasad produced two sale deeds, dated the 11th February 1902, by himself and his brothers Tulsi Prasad and Gobindjee, one executed in favour of Iser Das and Narain Das in respect of the land in suit 1 bigha, 5 kathas, 10 dhurs and the other executed in favour of Liakat Hussain and Rajab Ali in respect of the remaining 1 bigha, 5 kathas, 10 dhurs. In Exhibit F-l, Lakshmi Prasad stated that as the sale-deed of Iser Das and Narain Das of 1902 (Exhibit 1) with which we are concerned was returned to him by them at their request for the reasons best known to them, he executed on 19th January 1912 another sale deed in their favour in the name of the plaintiff. He made a similar statement in Exhibit F-l with respect to the sale in favour of Liakat Hussain and Rajab Ali, saying that they got another sale-deed in respect of the lands conveyed to them executed in the name of their own man Mohammed Hussain.
16. The Munsif argues that there being no explanation why the sale-deed was left in the possession of Lakshmi Prasad and was not in the possession of Iser Das where it naturally ought to have been, the sale-deed in question was not acted upon. The Subordinate Judge apparently accepts the statements contained in the petition as to how the document came to be in possession of the vendor and attributes it to collusion between Lakshmi Prasad the vendor, Iser Das, the vendee under the deed of 1902 and Bisudhanand the plaintiff vendee under the deed of 1912. He also attributes the attitude of neutrality taken by Iser Das in the present litigation to the same collusion. If the statement in petition Exhibit F-l is correct, Iser Das and Narain Das the vendee under the deed of 1902 are either the real purchasers of the property also under the subsequent sale-deed of 1912 in the name of the plaintiff or they abandoned their rights under the sale-deed and allowed the plaintiff to purchase the property. In either case the suit for redemption cannot fail, for a benamidar is as much competent to bring an action in his own name in respect of the property as the beneficial owner, whether he is a party to it or not. The beneficial owner is bound by the decision in the case in the same way as if he were a party, the decision operating as res judicata. This principle has been well settled, vide the two resent decisions of their Lordships of the Judical Committee in the case of Bilas Kunwar v. Desraj Ranjit Singh 30 Ind. Cas. 299 : 37 A. 557 : 19 C.W.N. 1207 : 29 M.L.J. 335 : 2 L.W. 830 : 18 M.L.T. 248 : 13 A.L.J. 991 : 17 Bom.L.R. 1006 : 22 C.L.J. 516 : (1915) M.W.N. 757 : 42 I.A. 202 (P.C.) and Gur Narayan v. Sheo Lal Singh 49 Ind. Cas. 1 : 46 C. 566 : 17 A.L.J. 66 : 36 M.L.J 68 : 9 L.W. 335 : 23 C.W.N. 521 : 1 U.P.L.R. (P.C.) 1 (P.C.). The present case is stronger, inasmuch as Iser Das the sole surviving vendee under the deed of 1902 was made a party to this and the previous litigation concerning this property. He does not repudiate the sale in favour of the plaintiff nor does he set up his own right under the previous deed, the reason being as given by the Court below that he was himself the author of the sale-deed in plaintiff’s favour. Collusion or no collusion, he is estopped from disputing the validity and the bona fides of the plaintiff’s sale deed. The defendant, who is simply a mortgagee, cannot set up jus tertia that is the right of Iser Das, when the latter himself abandons it. The petition, Exhibit F, is a document relied upon and used as evidence by the defendant himself and he has proved it to be the statements of Lakshmi Prasad. He is bound by those statements. Even if the statements in Exhibit F-l be of doubtful character or their admissibility be in any way questionable, the astounding fact remains that the deed of 1902 was in the possession of the vendor since the execution of the subsequent sale-deed in favour of the plaintiff. The Courts below have held it to be so. The oral evidence has conclusively established it: vide the evidence of plaintiff’s witness No. 1.
17. Another important fact is that on 1st July 1901 they had to take loan from defendant No. 1, pledging their prior mortgage right under the deed of 1896. They were not in a position to pay part of the consideration money of the sale-deed of 1902, said to have been paid in cash. They could not also discharge the sub-mortgage of defendant No. 1, who was compelled to enforce it by a suit and to purchase the prior mortgage in execution of his decree on 2nd June 1913. The finding of the Munsif that not a single farthing out of Rs. 500, the consideration of the sale-deed of 1902, was paid and that no passing of consideration at all took place is borne out by facts and circumstances in the case. This finding of fact has not been upset by the learned Subordinate Judge in appeal. He has not addressed himself to it, as perhaps it was not disputed before him. In fact there is no evidence on record about payment of consideration. None of the defendants’ witnesses speaks about it.
18. There was no question of possession under the sale-deed of 1902, for the vendees under it were in possession of the property under a prior mortgage by conditional sale, so the question of possession is immaterial in this case. No doubt one of the vendors Tulsi Prasad and one of the vendees Iser Das have been trying from 1902 to 1909, as is obvious from the defendants’ Exhibits C to N. to have the sale-deed recognized. In that sense only the finding of the Court below that the sale-deed of 1902 was acted upon can be appreciated.
19. It is noticeable that the “hukumnamah, Exhibit D, dated the 8th April 1905, upon which the recognition by the Hathwa Raj of the tale-deed of 1902 is based, mentions the name of Iser Das only, and ‘ not that of his joint vendee Narain Das in respect of 3 kathas, 12 dhurs, whereas the sale deed Exhibit 1 covers 1 bigha, 5 kathas, 10 dhurs and the share of the Hathwa Raj is about 11 kathas. There if, as held by the learned Munsif, no evidence of payment of rent. Neither defendant No. 2 nor the Patwari of the Hathwa Raj defendants’ witness No. 3 speaks about it. Be that as it may, there is absence of any evidence of the deed being acted upon after the year 1909. This bears out the fact already noticed that (he vendees were unable to pay the mortgage of defendant No. 1’s brother Sahebzada Singh, that their prior mortgage right was in danger of being sold and hence they returned the sale-deed of 1902 to the vendors and joined in the execution of the sale-deed in favour of the plaintiff. This points to the fact that the plaintiff is the real purchaser.
20. Both the Courts below have held that the plaintiff’s sale deed of 1912 is for consideration; in fact the payment of Rs. 100 to the vendors has been established and found as a fact. He has deposited Rs. 400 in Court. The deed expressly gives him right to redeem. The effect of the possession of the sale deed of 1902 with the vendors and the legal position of the plaintiff and that of Iser Das, defendant No. 2 in the case, have been misconceived by the Court below. I therefore, disagree with the view taken by the learned Subordinate Judge and hold that the plaintiff is entitled to redeem the mortgage of defendant No. 1 of 3rd June 1896. The decree of the Subordinate Judge must be set aside and that of the Munsif restored.
21. There is yet another fatal difficulty in the decree made by the learned Subordinate Judge. It appears from the affidavit filed in this Court on behalf of the plaintiff appellant that Iser Das, defendant No 2 died on the 1st January 1918 and on the 8th August 1918 his widow Musammat Kawli alias Bahisi was substituted by an order of this Court. There was no counter-affidavit and this fact was not disputed The appeal in the Court below was decided on the 1st June 1918, long after the death of defendant No. 2. Isri Singh, who was the appellant in the Court below came to know of the death at least when the substitution was made in this Court on the 8th August. Inspite of that he did not apply in the Court below to substitute the legal representatives of the deceased and to re-hear the appeal against the heirs and legal representatives of defendant No. 2 respondent in the Court below, or take steps to have the abatement set aside within the time allowed by law nor did he make any application to this Court for sending back the case to the Court below to re-hear the appeal after proper substitution, as was done in the case of Abhoya Charan Ghosh v. Rai Kumar Ghosh 42 Ind. Cas. 506. More than six months have elapsed since the death of Iser Das who was respondent No. 1 in the Court below and the appeal against him in that Court, therefore, abated. Upon the pleadings in this case and also because he was a mortgagee under the deed of 3rd June 1896 sought to be redeemed and was set up by the appellant as a purchaser under the deed of 1902, he was a necessary party to the suit and also to the appeal in the Court below under Order XXXIV, rule 1, of the Code of Civil Procedure, under which every person interested in a mortgage property is a necessary party. There is no doubt that the appeal in the Court below abated not only against the deceased defendant No. 2 under Order XXII, Rule 4(3), but also against the plaintiff who was respondent No. 1 in the Court below.
22. The result is that the decree of the Court below is set aside and that of the Munsif is restored with costs throughout.