JUDGMENT
Kumaraswami Sastri, J.
1. Defendant 5 is the appellant. He purchased the property in dispute in execution of a mortgagee decree in Suit No. 464 of 1919. This was a. suit filed by the second mortgagee impleading the first mortgagee and the mortgagor and his sons. The sale certificate issued to the appellant says that the property was sold to him for Rs. 500 in execution of the decree in that suit. Then a note is made in the sale certificate that the plaint item properties were sold after giving notice of the fact of the hypothecation thereof Rs. 1 000, by defendant 1 to one Subba Goundan. I have little doubt that the sale was subject to the first mortgage as there was nothing to show that the sale was free from the first mortgage, a fact that ought to have been stated in the sale certificate if this were so. The present suit is by the first mortgagee against the mortgagor and his sons, defendant 1 being the mortgagor, defendants 2-4 his sons, and defendant 5 being the present appellant impleaded as party because he purchased an interest in one of the items of property. Defendant 5 in that suit raised an objection that the first mortgage not being binding on defendants 2-4, the sons of defendant 1, the first mortgage could not be enforced against him, the purchaser of the property in the previous suit.
2. The Subordinate Judge, though he was of the opinion that the first mortgage as regards ‘this item was not binding on defendants 2-4 held that defendant 5 could not take advantage of this as he purchased the property subject to the mortgage and was estopped from disputing its validity as the truth and validity of this mortgage was in issue in the previous Suit No. 467 of 1919. The proceedings in the prior suit have not been filed, but it is clear that in the prior suit the first mortgage not being in question, unless there is something in the pleadings in that suit to raise in issue the validity of the first mortgage, it is difficult to see how there can be any res judicata in this case, much less any estoppel against the purchaser in the previous suit. He may be bound by the proceedings under the ‘ second mortgage or a declaration relating to that mortgage, but there was nothing to put in issue the first mortgage. It is difficult to see how he is estopped from disputing the first mortgage. It is not argued before me that if the first mortgage was invalid in law owing to want of registration or attestation or any other cause it would not be open to the purchaser in the second mortgage who bought it subject to the first mortgage to set up the invalidity and thus acquire a title free from that mortgage. I would only refer to Issat-un-nissa Begum v. Partab Singh [1909] 31 AIL 583, Mr. Govindaraghava Ayyar’s contention is that as this transaction is not void but on the finding of the Subordinate Judge only voidable at the instance of the sons, defendants 2-4, it is a purely-personal right to them which a transferee cannot avail himself of. The second argument is that it must be deemed that in the previous suit the sons having elected not to avoid the first mortgage and as the property was sold subject to the first mortgage, it is not open to the purchaser to avoid it.
3. I am of opinion that if the contract is voidable and if defendants 2-4 had prior to the purchase by defendant 5 done anything to show that they have elected to affirm the transaction, defendant 5 as the purchaser subsequent to the ratification cannot reopen the question on the ground that he is a purchaser. Mr. Govind-raghava Ayyar’s argument is that they have done so or should be deemed to have done so by reason of the proceedings in the first suit. There is nothing in the record from which I can come to any conclusion and I think the proper course will be to call for a finding as to whether in the previous suit by reason of the pleadings, the evidence or any other circumstance in connexion with that suit defendant 2-4 can be said to have elected to ratify this mortgage and to be bound thereby. I may say that so far as the father’s share at least is concerned there can be no question that the purchaser is bound by the first mortgage and as he is bound by the mortgage there is no question of ratification by the father. Findings in one month and objections in two weeks.
4. (The finding of the Subordinate Judge was as follows:)
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** ** I therefore submit a finding that there is no ratification, express or implied, so far as defendants 3 and 4 are concerned and that as regards defendant 2 ratification may be inferred from his not having contested the present suit. Findings accordingly.
(After the return of the finding of the lower appellate Court, the Court delivered the following judgment.)
5. I find it difficult to see how ratification can be inferred by defendant 2 not having contested the present suit. He has no interest and therefore did not contest this suit. The finding I called for is as regards the previous suit and the finding is that nothing in the record of the previous suit shows ratification. I accept the finding that defendants 3 and 4 did not ratify and hold that defendant 2 did not ratify.
6. The property was sold by Court in execution and the purchaser has a right to sue to set aside transactions connected with the property which the judgment-debtor had. The transfer is not merely of the right to sue, but the transfer is of the property with all the rights which the judgment-debtor had; Dickinson v. Burrell, Anne Dickinson v. Burrell, and Stutton v. Burrell [1866] 1 Eq. 337, are in point. I modify the decree of the lower Court by confining the decree only to 2/5ths of the property. The parties will pay and receive proportionate costs throughout.
