JUDGMENT : BURKITT, J.:— This is an appeal against a decree of the learned Subordinate Judge of Bareilly, dismissing the plaintiff's suit. 2. The suit was one against vendees to recover unpaid purchase money. The prayers for relief, as set forth in the plaint, are (I) for a declaration that a sum of Rs. 1,61,776-11-0 (or any less sum the Court finds due) is “payable to the plaintiff as part of the unpaid vendor's purchase money by the defendants” who are described as the owners and in possession of villages of which they had purchased the equity of redemption; (2) “for a declaration that the plaintiff has a lien for the said amount against the villages” now in the possession of the defendants, and (3,) “for an order for sale of the villages if the amount found due be not paid.” The facts on which the prayer for these relief's depend are briefly as follows:— One Musammat Intizam Begam, now deceased, whose representatives and transferees are the defendants-respondents, obtained a decree for sale on a mortgage held by her, bearing date October 17th, 1878, from Raja Lalji and others now represented by the plaintiff-appellant. Musammat Intizam Begam preferred a suit on her mortgage in January, 1887. A decree for sale in default of payment was passed on the 25th February, 1889. In the sale proclamation it was notified that there were two mortgage encumbrances aggregating Rs. 30,000, existing on the property about to be sold. The Court gave permission to the decree-holder to bid at the auction on her representation that on account of the heavy encumbrances bidders might not come forward. In the result at the auction sale held on 20th April, 1894, Musammat Intizam Begam purchased for Rs. 64,100 eight out of the nine villages put up for sale, and the sale was confirmed by the Collector (to whom the execution proceedings had been transferred under sections 320, et seq., of the Code of Civil Procedure) on June 29th, 1894. 3. There is no information on the record as to whether the sum of Rs. 64,100, the price paid by Musammat Intizam Begam, for eight villages and of Rs. 3. There is no information on the record as to whether the sum of Rs. 64,100, the price paid by Musammat Intizam Begam, for eight villages and of Rs. 7,100 paid by the highest bidder, Abdul Kayum, and Abdul Hafiz, for the ninth village, sufficed to discharge the mortgage (admittedly a good and valid encumbrance) held by Musammat Intizam Begam, and whether anything remained to be handed over to the mortgagors (now represented by the plaintiff-appellant here) after the decree-holder's claim had been satisfied. 4. Nearly seven months after the confirmation of the sale it was decided by this Court on January 15th, 1895, that one of the two mortgages mentioned above, a mortgage for Rs. 10,000 bearing date December 2nd, 1877, was invalid, having been executed by a person not authorised in that behalf by the parties in whose names he professed to act. The decision of this Court was on appeal affirmed by their Lordships of the Privy Council (L.R., 25 I.A., 183) on June 27th, 1898. Similarly, as to the second mortgage (for Rs. 20,000 bearing date May 25th, 1877), which was notified in the sale proclamation in the present case, it was decided by this Court on appeal on May 3rd, 1899, (affirming the decree of the Court of first instance dated June 5th, 1896) that mortgage also was invalid and did not create any encumbrance on the property which it purported to affect. In consequence of the two decrees of this Court mentioned above, namely those of January 16th, 1895, and May 3rd, 1899, the purchasers (Musammat Intizam Begam, as to eight villages, and Abdul Kayum and Abdul Hafiz as to the ninth) were about to obtain possession of those villages without having to discharge the encumbrances which; had been notified in the sale proclamation. 5. Thereupon the plaintiff, Rajah Inayat Sing, son of the late Rani Achhan Kunwar (who was the principal defendant in the suits mentioned above), instituted the present suit in July, 1901, against the representatives of Musammat Intizam Begam, and another suit against Abdul Kayum and Abdul Hafiz, to compel them to pay to him, as unpaid purchase money, the sums which the invalid mortgages of May 25th, 1877, and of December 2nd, 1877, had purported to secure. By the 12th paragraph of the plaint the plaintiff alleges that “the real purchase money of the property sold at auction as aforesaid and which the defendants, purchasers, ought to have paid was the amount paid by the purchaser on the completion of the sale together with the amount which was due under the above-mentioned deeds, dated respectively the 25th May, 1877, and 2nd December, 1877, subject to which encumbrances the sale was made,” and urges that as in consequence of the decree mentioned above, the defendants are now in possession of the property free from any liability to pay the amount of the above-mentioned mortgages and “had not to pay the same, nor will they ever be called upon and made to pay the same, and therefore the amounts thereof, viz., ‘Rs. 1,61,776-11-0, are now due to the plaintiff as unpaid vendor's purchase money.” In the 21st paragraph of his plaint the appellant sets forth as the date of the accrual of his cause of action, the dates on which Her late Majesty in Council on July (a mistake for June) 27th, 1896, and this Court on 3rd May, 1899, exonerated the defendants from payment of the charges created by the mortgages of the 2nd December, 1877, and of 25th May, 1877. 6. In their written statement the defendants admitted the facts as to the preceding litigation stated by the plaintiff. In paragraph 5 they allege “that in consequence of the purchase at auction on 20th April, 1894” the plaintiff or his ancestor had no longer any right in the said property, and the purchaser has become the absolute owner of the property purchased by him (evidently mistranslation for her). The sixth and seventh paragraphs of the written statement are as follows:— 6. “The allegation of the plaintiff that the sum of Rs. 1,61,776-11-0 is due and is payable to the plaintiff as unpaid purchase money, is entirely wrong. No private sale was ever made by Rani Achhan Kunwar or by the plaintiff to the ancestor of the defendants and no contract or agreement was made between the parties for the payment of any money. No contract for the payment of any money was or could be entered into between the auction purchaser and the ancestor of the plaintiff or the plaintiff's judgment-debtors. No contract for the payment of any money was or could be entered into between the auction purchaser and the ancestor of the plaintiff or the plaintiff's judgment-debtors. The plaintiff is not entitled to get the money which has been notified.” By this last sentence the defendants refer to the encumbrances of Rs. 30,000 notified at the auction sale on April 20th, 1894. 7. “The fact of the properties being sold subject to the encumbrances, if any, created by Rani Achhan Kunwar and the plaintiff, and which encumbrances were afterwards declared invalid, would not entitle the plaintiff to claim the amount of these encumbrances from the auction purchaser.” 7. On these pleadings the parties went to trial. The plaintiff claimed as unpaid purchase money, the amount of the two fictitious mortgages mentioned above, while the defendants denied that they were so liable. The suit was fought out in the court of first instance as one to recover “unpaid purchase money,” and it was so understood by the learned Subordinate Judge, who dismissed it holding that “the rules of a vendor's lien for the unpaid purchase money do not apply to the case of a sale in invitum, and this suit therefore fails.” The plaintiff appealed to this Court contending in his memorandum of appeal (1) “that the Subordinate Judge was wrong in holding that the doctrine of unpaid vendor's lien does not apply to sales in execution of decrees of courts;” (2) “that the consideration for the sale was the price paid at the sale plus the money due to the prior mortgagees, whose mortgages the purchaser had himself (sic) virtually acknowledged to be subsisting and which he (sic) was aware, he (sic) would have to satisfy;” (8) “that the plaintiff was in law and equity entitled to a charge or lien on the property sold for the amount which the respondent purchaser was to have paid, and from payment of which* they (sic) were exonerated by decrees which declared the prior mortgages on the property to be void.” This memorandum of appeal, it will be observed, again raises only the question of unpaid purchase money. 8. 8. At the first hearing of this appeal before the learned Chief Justice and myself the learned advocate for the appellant contended that the view taken by the lower court was wrong, that the price at which Musammat Intizam Begum purchased the property was the amount of her bids, Rs. 64,109 plus the sums then believed to be due on two mortgages which afterwards were discovered to be void. That amount, the learned advocate contended, his client was entitled to recover as unpaid purchase money from the respondents, the representatives of the auction purchaser, The learned advocate admitted he was unable to cite any reported case in point. On the other hand, the learned advocate for the respondents con-tended, and in my opinion conclusively showed by referring to the use of the words “purchase money” in sections 294, 306, 307, 308, 309 and 310A of the Code of Civil Procedure, that the words, “purchase money” import only the sum offered by the highest bidder and accepted by the Court conducting the sale, and do not include the amount of any encumbrances which the Court acting on the best information it has been able to obtain, has, at the time of sale, notified as existing burdens on the property put up for sale. 9. In reply the learned advocate for the appellant abandoned the claim for “unpaid purchase money, “but claimed to recover the amounts of the two invalid mortgages as being money due in equity from the respondents to the appellant, as in fact, to use the learned advocate's own words “money which the defendants ought to pay.” 10. In consequence of the difficulty of the case and for other reasons the appeal was reheard before a larger Bench. 11. In order to explain why I am still unable to concur in the opinions of the other members of this Bench, it is necessary for me briefly to refer to the two void mortgage bonds of December 2nd, and May 25th, 1877. They both were prior in date to the Musammat Intizam Begam's mortgage—admittedly valid—which bears date of October 17th, 1878. She was the first to sue, her plaint having been filed on January 27th, 1887. She obtained the usual mortgage decree for sale in default of payment which was affirmed by this Court on the 25th February, 1889. They both were prior in date to the Musammat Intizam Begam's mortgage—admittedly valid—which bears date of October 17th, 1878. She was the first to sue, her plaint having been filed on January 27th, 1887. She obtained the usual mortgage decree for sale in default of payment which was affirmed by this Court on the 25th February, 1889. She applied for execution by sale on June 30th of the same year, and eventually at an execution sale held on April 20th, 1894, she (having obtained permission of the Court under section 294 of the Code) purchased for Rs. 64,100 eight out of the nine villages which had been mortgaged to her, and that sale was confirmed on June 29th of the same year. 12. As to the other two mortgages, the first put into Court was that of December 2nd, 1877, a suit for sale was instituted on it on June 2nd, 1890. To that suit Musammat Intizam Begam was not a party. The claim was decreed in favour of the alleged mortgagee-plaintiff by the Court of first instance on January 9th, 1892, but was dismissed by this Court on appeal as already mentioned on January 15th, 1895, i.e., nearly nine months subsequent to Musammat Intizam's purchase on the 20th April, 1894, and some seven months after the confirmation of that sale on June 29th of the same year. This then was the first intimation that Musammat Intizam Begam had that the Rs. 10,000 encumbrance, which the instrument of December 2nd, 1877, purported to create, was not a valid encumbrance. 13. No suit was instituted on the mortgage of May 25th, 1877, the Rs. 20,000 mortgage, till May 24th, 1894, i.e., more than a month after the date of Musammat Intizam Begam's purchase on April, 20th of that year. In this suit an order was passed under section 32 of the Code, adding Musammat Intizam as a party defendant (probably because of her purchase on April 20th). This order was passed on June 26th of the same year. Whether it was served on her before the confirmation of the sale on June 29th, if is impossible to say, the record having been weeded out and destroyed. Eventually this suit was dismissed by this Court on May 3rd, 1899, affirming the decree of the Subordinate Judge of June 5th, 1896. Whether it was served on her before the confirmation of the sale on June 29th, if is impossible to say, the record having been weeded out and destroyed. Eventually this suit was dismissed by this Court on May 3rd, 1899, affirming the decree of the Subordinate Judge of June 5th, 1896. This latter decree was the first intimation Musammat Intizam had that the mortgage of May 25th, 1877, was created as vaild encumbrance. 14. Now the grounds on which, as I understand, it is sought to fix the respondents with a liability in equity to pay the plaintiff the amount of these invalid encumbrances are firstly that they formed part of the purchase money at the sale of April 20th, 1894. This contention I cannot accept. I am clearly of opinion on a review of the sections of the Code of Civil Procedure mentioned at an earlier portion of this judgment, that those encumbrances formed no part of the purchase money. No doubt that which Musammat Intizam Begam purchased and that which was sold and that which she believed she was purchasing, was the equity of redemption of the eight villages. She purchased those villages subject to any existing encumbrances. The execution court, when selling immoveable property, does not guarantee that the encumbrances notified in the sale proclamation are vaild charges or that they are the only encumbrances chargeable on it. If in this case it had turned out that there were other encumbrances not notified at the sale, affecting the property, the vendee could not have obtained possession without first discharging them, Here the case is the opposite, as the encumbrances notified at the sale, which at the date of the sale every one including Musammat Intizam Begam believed and for good reasons to be valid encumbrances turn out to be void. This fact was discovered in one case (Rs. 10000 mortgage) some nine months, and in the other (the Rs. 20,000 mortgage) more than two years after Musammat Intizam Segam's purchase of April 20th, 1894. Does this fact then give plaintiff a right to put himself into the shoes of the holders of the two mortgages which the Courts have declared to be void, and to call on the respondents as representatives of the auction purchasers to pay to him the sums which Raja Lalji had borrowed on invalid mortgages from Mohan Lal, Magni Ram, and Gobind Parshad? I cannot, see that inequity he is entitled to succeed in such a claim. No doubt, the auction purchaser made a lucky purchase. Musammat Intizam Begam expected to have, and no doubt was prepared to pay off any vaild encumbrances existing on the eight villages she purchased.’ It turns out that there were no valid encumbrances and in my opinion she and her representatives are not liable to be deprived of the fruits of her bargain, at least in a suit framed like the present suit. It is perhaps possible that in a properly framed suit tendering payment of the Rs. 64,100, and of the amount due on Musammat Intizam Begam's mortgages of October 17th, 1878, the plaintiff may be able to recover possession of the eight villages sold on April 20th, 1894. But the present suit is, I think, misconceived. On this part of the case, I would add that if no suit had been instituted by the alleged mortgagees to enforce payment of the sums which purported to be secured by the instruments of May 25th and December 2nd, 1877, and the latter had been notified in the sale proclamation in Musammat Intizam Begam's suit, and if she after her purchase in a suit for possession on her purchase of April 20th, 1894, had been successful in establishing the invalidity of those two mortgages, could the plaintiff have successfully claimed from her the amount of the two invalid mortgages on the ground that as auction purchaser, she was bound to pay off the invalid charge notified in the sale proclamation? I think not, and think it makes no difference that after the sale to Musammat Intizam Begam had taken place, plaintiff's predecessors-in-title succeeded in establishing the invalidity of those two instruments. It surely is open to an auction purchaser to dispute successfully the validity of charges notified at the auction sale without thereby rendering himself liable to pay those charges to the mortgagor. This suit seems to me to be simply one to compel the representatives of the auction purchaser to redeem two mortgages which the Lords of the Privy Council and this Court have declared to be invalid. 15. Then the conduct of Musammat Intizam Begam in the matter of the notification of the existence of the two invalid mortgages was animadverted on, it was argued that she was in some way estopped by her conduct. 15. Then the conduct of Musammat Intizam Begam in the matter of the notification of the existence of the two invalid mortgages was animadverted on, it was argued that she was in some way estopped by her conduct. Now as to the notification of encumbrances at a sale of immoveable property, it is the duty of the Court to obtain from all available sources a list of existing encumbrances but the Court does not and cannot guarantee that the list it publishes contains all existing encumbrances or that the encumbrances it notifies are valid. It gives to intending bidders the best information it can procure, and leaves the bidders to take the risk. The preparation of this list is not the act of the parties; though the Court, no doubt, may and does obtain information from them. In this case the list prepared by the Court showed encumbrances to the amount of Rs. 92,000. To this an objection was raised on behalf of Musammat Intizam Begam, who through her pleaders informed the Court that the real encumbrances were only Rs. 30,000. The Court accepted this and struck out the Rs. 62,000. The history of the litigation about this sum of Rs. 62,000 will be found in the judgment of their Lordships of the Privy Council in the case Lala Amarnath Sah v. Rani Achhan Kunwar : [1892] L.R., 19 I.A., 196; S.C.I.L.R., 14 All., 420. If Musammat Intizam Begam wanted to purchase the property cheap, she was unwise in having that item struck out of the list of encumbrances. I cannot see that by her act in this matter she incurred an implied liability to pay the Rs. 30,000 in any case, whether the two mortgages were valid or not. Nor can I see where the estoppel comes in. She did not by any act of hers or of her agent induce any person to change his position injuriously to himself. 16. Again strenuous arguments were addressed to us as to the language used by Musammat Intizam Begam when she applied for leave to bid at the sale as permitted by section 294 of the Code of Civil Procedure. It was practically contended that she thereby guaranteed the existence and validity of the mortgages and undertook to pay them in any event, if she were declared to be the purchaser at the sale. It was practically contended that she thereby guaranteed the existence and validity of the mortgages and undertook to pay them in any event, if she were declared to be the purchaser at the sale. That petition (No. 8 of the record) was presented on September 10th, 1892. It is in these words: “In the above case the decree is for a considerable amount. Perhaps there might not be forthcoming any purchaser, for the property is encumbered with heavy debts. Formerly this decree-holder obtained permission from the Court twice. As fresh notifications have been issued, this application is made and it is prayed that permission to purchase the property on presentation of a receipt for the amount due under the decree (be given).” 17. Now all the statements made in that petition were at dates wholly and literally true. On the 9th of June, 1892, the Subordinate Judge of Bareilly had found in favour of the mortgage of December 2nd, 1877, and had given a decree for sale on foot of it. It was not till January 15th, 1895 (nine months after sale of April 20th, 1894) that this Court reversed that decree. So, in September, 1892, Musammat Intizam Begam had judicial authority for believing that the mortgage of December 2nd, 1877, was a valid and binding instrument. As to the other mortgage, that of May 25th, 1877, it was not put in suit till May, 1894. So, in September, 1892, Musammat Intizam had no reason to believe it to be other than a good and binding mortgage. I cannot understand how on the facts just detailed, I can be called on to hold that by reason of her petition of the 10th September, 1892, Musammat Intizam Begam undertook in any case to pay the amounts supposed to be secured by the two invalid instruments in case she should be the purchaser at the impending auction sale. She took the risk of having to pay and no doubt was prepared to pay those encumbrances if valid, and as they turned out to be void, I fail to see why in a suit like the present her representatives should be compelled to discharge them. We are familiar with the maxim “coveate emptor” but in this suit I would vary it by suggesting “gandeat emptor” 18. We are familiar with the maxim “coveate emptor” but in this suit I would vary it by suggesting “gandeat emptor” 18. The reasons given by the Collector in his order of June 29th for rejecting an objection to the confirmation of the sale, filed on May 19, 1894, are in my opinion immaterial in this suit. The objection had reference only to the price realized at the sales. Nothing was said as to the validity of the two mortgages which every one then believed to be binding instruments. The Collector (like every one else) believed those bonds to be good, and therefore held that the objectors had been lucky in getting so good a price. 19. I would also point to the extraordinary nature of the claim made by the plaintiff. The two invalid mortgages purported to affect 18 villages. Out of them Musammat Intizam Begam purchased only eight, and yet the plaintiff claims to recover from her representatives the whole sum with compound interest which those invalid instruments purported to secure. Such a claim is absurd, and all the more so seeing that nine out of the villages affected by those instruments are now admittedly in the hands of the plaintiff-appellant. Finally I reiterate my opinion that the plaintiff-appellant has misconceived his remedy, if he have any. If it be con-cidered inequitable that the respondents should continue to enjoy the fruits of Musammat Intizam Begam's lucky purchase, then possibly the appellant's true remedy is by a suit for recovery of possession of the eight villages as suggested at an earlier portion of this judgment. 20. I deeply regret that I have the misfortune to be unable to concur in the opinions to the contrary which, having had an opportunity of perusing the judgment of the learned Chief Justice, are I understand, entertained by him and by my learned brother BLAIR. 21. I would affirm the decree of the lower court and would dismiss this appeal with costs. STANLEY, J.:— The question raised in this appeal is one of novelty and considerable difficulty. The facts are as follows:— The late Raja Khairati Lal was the owner of considerable property in the district of Bareilly. He died in the year 1866, leaving his widow, Rani Hulas Kunwar, and a daughter, Rani Achhan Kunwar, him surviving. STANLEY, J.:— The question raised in this appeal is one of novelty and considerable difficulty. The facts are as follows:— The late Raja Khairati Lal was the owner of considerable property in the district of Bareilly. He died in the year 1866, leaving his widow, Rani Hulas Kunwar, and a daughter, Rani Achhan Kunwar, him surviving. Rani Achhan Kunwar was married to Raja Lalji and by him had two sons, namely, the plaintiff Raja Inayat Singh and Kumar Shamsher Bahadur, the latter of whom died on the 9th of July, 1889. On the 25th of May, 1877, Raja Lalji purporting to act as attorney of Rani Hulas Kunwar, Rani Achhan Kunwar and Raja Inayat Singh, as also on his own behalf, executed a mortgage in favour of Mohan Lal, Magni-Ram-and Gobind Par-shad, hypothecating 13 villages which had belonged to Raja Khairati Lal, to secure a principal sum of Rs. 20,000-0-0. Again, on the 2nd of December, 1877, Raja Lalji purporting to act on behalf of the same persons, executed in favour of the same mortgagees an other mortgage affecting 6 of the villages which had belonged to Raja Khairati Lal, including Girdharipur which was comprised in the first mentioned mortgage, to secure a principal sum of Rs. 10,000-0-0 and interest. Raja Lalji, as events proved, had no authority to execute either of these mortgages. At the date of their execution, Rani Hulas Kunwar was alone entitled to the mort-gaged property and Raja Lalji had no interest whatever in it. Rani Huias Kunwar died on the 22nd of June, 1878, whereupon her daughter, Rani Achhan Kunwar, succeeded to the property of Raja Khairati Lal. On the 17th of October, 1878, she, in conjunction with her husband and her son, the plaintiff, executed in favour of Musammat Intizam Begam a mortgage of nine of the villages, which Raja Lalji had purported to mortgage to Mohan Lal and his co-mortgagees, to secure the principal sum of Rs. 30,000-00 and interest. Musammat Intizam Begam instituted a suit on the 27th of January, 1887, for recovery of the amount due to her on foot of her mortgage, and ultimately, on the 25th of February, 1889, obtained the usual mortgage decree, and on the 30th of June, 1889, she obtained an order for sale of the mortgaged villages. 30,000-00 and interest. Musammat Intizam Begam instituted a suit on the 27th of January, 1887, for recovery of the amount due to her on foot of her mortgage, and ultimately, on the 25th of February, 1889, obtained the usual mortgage decree, and on the 30th of June, 1889, she obtained an order for sale of the mortgaged villages. Before any sale was carried out, namely, on the 2nd of June, 1890, Mohan Lal and his co-mortgagees brought a suit for sale of the villages comprised in their mortgage of the 2nd of December, 1877, and obtained a decree for sale from the court of the Subordinate Judge of Bareilly on the 9th of June, 1892, but this decree was set aside by the High Court on appeal and the suit of the plaintiffs dismissed on the 15th of January, 1895, on the ground that Rani Hulas Kunwar had not given any authority to Raja Lalji to execute the mortgage. The decision of the High Court was confirmed by the Privy Council on the 27th of July, 1898. Pending these proceedings, namely, on the 24th of May, 1894, Govind Parshad and his co-mortgagees instituted a suit for recovery of the amount due to them on foot of the mortgage of the 25th of May, 1877. But this— suit was also dismissed by the court of first instance and also by the High Court on appeal; On the ground that Raja Lalji had no authority to execute the mortgage. Pending the proceedings taken on foot of the mortgage of the 2nd of December, 1877, in which the validity of that mortgage was impeached, Musammat Intizam Begam proceeded with the execution of her decree, and after an investigation of the encumbrances” affecting the property a sale proclamation was prepared and issued, pursuant to the provisions of section 287 of the Civil Procedure Code. This proclamation is dated the 2nd of March, 1894, and in the schedule to it is distinctly stated that the property is and will be sold subject to the two mortgages of the 25th of May, 1877, and the 2nd of December, 1877, and that the amounts due on foot of these mortgages, respectively, for principal are Rs. 20,000 and Rs. 10,000. 20,000 and Rs. 10,000. In the body of the proclamation is the following statement:— “The sale will be of the property of the judgment-debtor above-named, as mentioned in the schedule, and the liabilities and claims attaching to the said property, so far as have been ascertained, are those specified in the schedule against each lot.” Then in the schedule under the heading. “Detail of encumbrances, if any, to which the property is liable as far as they have been ascertained by the Court,” is set forth the liabilities. The words are. “The liabilities are as follows,” and underneath are set forth the two mortgages in question, with the name of the mortgagors, the mortgagees, and the principal amounts due on foot of them. 22. It would, appear that as originally settled, encumbrances to the extent of Rs. 92,000 were inserted in the sale proclamation, but upon representation of Mr. Bamanji, pleader for Musammat Intizam Begam, the amount was reduced to Rs. 30,000. On the file is a statement of Mr. Bamanji made on the 6th of January, 1893, in the following words:— “My plea is to the effect that Rs. 30,000, the amount of this decree entered as hypothecation lien may be excluded, and that Rs. 32,000 entered as due to Moti Ram Sahu, may also be taken out, i.e., of Rs. 92,000 the whole of the hypothecation lien, Rs. 62,000 have been entered by a mistake. This sum may be excluded, and the balance of Rs. 30,000, the correct amount of the hypothecation lien may be entered in the Notification” Up to this time it will be noted that Rani Achhan Kunwar had been unsuccessful in her impeachment of the mortgage of the 2nd of December, 1877. The mortgagees had obtained a decree against her on foot of that mortgage on the 9th of January, 1892, and it was not until the 15th of January, 1895, that that decree was reversed, and the mortgagee's suit dismissed. So far, therefore, as was known at the time,’ the mortgages of the 25th of May, 1877, and the 2nd of December, 1877, were valid and subsisting mortgages, but litigation in regard to the last mentioned mortgage was proceeding. So far, therefore, as was known at the time,’ the mortgages of the 25th of May, 1877, and the 2nd of December, 1877, were valid and subsisting mortgages, but litigation in regard to the last mentioned mortgage was proceeding. There can be no manner of doubt that what the Court intended to sell and expressly offered for sale was the equity of redemption in the property, and that an intending purchaser must have been aware that he could acquire such equity only. This being the state of things Musammat Intizam Begam proceeded with the execution of her decree, and she obtained liberty from the Court to bid for the property on the representation that the property was so heavily mortgaged that purchasers would not readily be found. She filed an application on the 10th of September, 1892, in which she asked for permission to purchase on the ground that her decree was for a considerable amount, and that “perhaps there might not be forthcoming any purchaser, for the property is encumbered with heavy debts” On this representation she obtained leave to bid, and at the sale, which was held on the 20th of April, 1894; she purchased all the villages offered for sale, with the exception of one village. It will be remembered that her pleader, Mr. Bamanji, in the statement which he presented to the Court on the 6th of January, 1893, on her behalf, said that the correct amount of the hypothecation lien was Rs. 30,000, and that this amount might be entered in the sale notification. Musammat Intizam Begam was, on the 20th day of June, 1894, added as a party to the suit which had been instituted on foot of the mortgage of the 25th of May, 1877, but we have been unable to discover when the summons to appear in that suit was served upon her. That portion of the record appears to have been destroyed. 23. Rani Achhan Kunwar objected to the carrying out of the sale-on the ground that the officer conducting the sale stated when selling that there were loans amounting to Rs. 30,000 on the villages taken together, but her objection was disallowed on the 29th of June; 1894. The Collector in his order disallowing the objection says:— “It was distinctly stated in the sale proclamations that there was a lien of Rs. 10,000 on Girdharipur and of Rs. 30,000 on the villages taken together, but her objection was disallowed on the 29th of June; 1894. The Collector in his order disallowing the objection says:— “It was distinctly stated in the sale proclamations that there was a lien of Rs. 10,000 on Girdharipur and of Rs. 20,000 on the other villages proposed for sale. Even supposing the officer conducting the sale to have stated when selling that there were liens amounting to Rs. 30,000 on the villages taken together, I do not see how this would effect the’ prices bid for each village and each has been put up separately. Intending purchasers would surely consult the published notification for details before bidding. Then as to the value estimated, I do not see that the Court con-ducting the sale is bound to make any estimate or rather to publish any. It makes an estimate merely to satisfy itself whether sale can be awarded or not. It is bound to notify such particulars as the Government revenue and the liens because they are necessary to enable purchasers to know what they are bidding for, and in this instance the price realised Rs. 71,200 is, considering the lien of Rs. 30,000 plus interest, a very good one, and it is nonsense for the judgment-debtors to complain of it” The italics are mine. Now it is obvious that the Court firmly believed that the property was subject to the mortgages mentioned in the proclamation, and that the purchasers were purchasing the property subject to them. What was offered for sale was the equity of redemption only. It is also clear that the decree-holder, Musammat Intizam Begam, at whose instance the sale took place, and her pleader represented to and led the Court to believe that these were valid and subsisting charges. On the strength of her allegation that there were existing charges, she got permission to bid. The sale to her was confirmed on the 29th of June, 1894, in view of the existence of these encumbrances, and she got possession of the property. On the strength of her allegation that there were existing charges, she got permission to bid. The sale to her was confirmed on the 29th of June, 1894, in view of the existence of these encumbrances, and she got possession of the property. The litigation in respect of this validity of the mortgages proceeded from Court to Court, in one case up to the Privy Council, with the result, as we have stated that Rani Achhan Kunwar was successful in establishing that they were not binding upon her, and having established this she not unnaturally expected to obtain some fruits from her victory. Musammat Intizam Begam died in 1897, and Rani Achhan Kunwar died on the 7th of June, 1898. The defendants-respondents are the heirs and donees of Musammat Intizam Begam with the exception of the defendant No. 3 who is a purchaser of one village from the defendant No. 2. The plaintiff, Raja Inayat Singh, who was the heir of Rani Achhan Kunwar, applied to the defendants for payment of the amount of the mortgages, but was promptly met with a refusal and told in effect that Musammat Intizam Begam having purchased the property subject to encumbrances which are proved to be valueless, became and was entitled to the fruits of the successful litigation of Rani Achhan Kunwar, i.e, to hold the property free from the encumbrances; that in fact Rant Achhan Kunwar was fighting the battle of Musammat Intizam Begam and spending money in litigation in her interests. The plaintiff thereupon brought this suit, which is for recovery of the amount of the money expressed to be secured by the two mortgages, which have been found to be invalid as against the true owner of the mortgaged property. The plaintiff thereupon brought this suit, which is for recovery of the amount of the money expressed to be secured by the two mortgages, which have been found to be invalid as against the true owner of the mortgaged property. “In the claim in paragraph 12 the plaintiff states that “the real purchase money of the property sold at auction as aforesaid and which the defendants, purchasers, ought to have paid, was the amount paid by the purchaser, on the completion of the sale, together with the amount, which was due under the above-mentioned deeds, dated respectively the 25th of May, 1877, and 2nd of December, 1877, subject to which encumbrances the sale was made and as the decree of Her Majesty in Council and the decree of the Hon'ble High Court above-mentioned, have exonerated the property purchased at auction and now in possession of the defendants, from the liability to pay the amount charged thereupon by the aforesaid deeds the above named defendants had not to pay the same, nor will they ever be called upon to pay the same.” The first prayer in the plaint is that “it be declared and decreed that a sum of Rs. 1,61,776-11-0 or any less sum that the Court may find due is payable to the plaintiff as part of the unpaid vendor's purchase money by the defendants, and that it be declared and decreed that the plaintiff has a lien for such amount against the villages purchased at auction in the possession of the defendants” and for other relief. It is obvious that the plaintiff has asked for too much. If the defendants are’ under any liability in respect of the two mortgages in question, it is clear that they are only liable to pay the proportionate share of the amounts secured by them, which is properly attributable to the villages purchased by Musammat Intizam Begam. Musammat Intizam Begam only purchased eight villages and her liability if any must be limited to the proportion of the shares of the mortgage debts attributable to those eight villages. Musammat Intizam Begam only purchased eight villages and her liability if any must be limited to the proportion of the shares of the mortgage debts attributable to those eight villages. The man defence to the suit is that by reason of the auction sale, Rani Achhan Kunwar and the plaintiff ceased to have any interest in the property sold and the purchasers became the absolute owner, that the fact that the properties were sold subject to the encumbrances created by Rani Achhan Kunwar and, the plaintiff and which encumbrances were afterwards declared invalid, would not entitle the plaintiff to claim the amount of these encumbrances from the auction purchasers. The learned Subordinate Judge yielded to this contention and dismissed the plaintiff's suit and hence the present appeal. 24. The case is one of considerable difficulty, but after the best consideration which I have been able to bestow upon it, I have come to the conclusion that the decree of the court below cannot be supported, The case may be looked at from two points of view. First of all it may be contended that Musammat Intizam Begam having represented to the court which was executing her decree that the property was subject to the two mortgages in question and having got liberty to bid for it upon this representation is estopped from denying the truth of the representation and must make it good to the best of her ability, that is, must pay to the judgment-debtor the amount of the encumbrances represented by her to be subsisting. 25. The other view is that Musammat Intizam Begam only acquired by her purchase the interest in the property which the Court purported to sell, and which she understood she was purchasing and so having purchased from the Court property expressly stated to be subject to specified encumbrances, cannot hold the property without making good the amount of those encumbrances. 26. I shall now consider the case from the first point of view. Musammat Intizam Begam got liberty to bid for the property on the express representation that the two mortgages in question were subsisting mortgages. Her pleader in the statement which he presented to the Court, informed the Court that Rs. 30,000 might be taken as the amount owing on foot of these mortgages. Musammat Intizam Begam got liberty to bid for the property on the express representation that the two mortgages in question were subsisting mortgages. Her pleader in the statement which he presented to the Court, informed the Court that Rs. 30,000 might be taken as the amount owing on foot of these mortgages. The Court acting on this, and it may be other, information, issued the proclamation for sale in which it is stated in the most distinct manner that the property was subject to the two mortgage debts in question, Musammat Intizam Begam, at whose instance the sale took place, got leave to bid on the representation that the mortgages were subsisting mortgages and on no other ground, The property, the subject matter of this appeal, was purchased by her. Furthermore, when the judgment-debtor objected to the sale on the ground that the price was inadequate, the Court disallowed the objection on the ground that having regard to the existence of the encumbrances in question, the price was fair and reasonable. Can Musammat Intizam Begam, or her representatives, be heard to say that she was not liable to make good her representation? In my opinion she cannot. It no doubt may be the case that the representation was made by her and her pleader under the belief that it was true and so was an innocent representation. It seems to me, however, that it is immaterial in a case of this kind whether the representation was innocently made or otherwise. It was intended that the Court should act upon the footing of its truth, and the Court did act upon that basis. She is now in my opinion estopped from taking advantage of the successful litigation of her judgment-debtor and from setting up the decisions of the High Court and the Privy Council, and relying on them as relieving her from the liability which she led the Court to believe she was undertaking when she purchased the property. It was the duty of the Court to sell the property to the best advantage. It was the duty of the decree-holder, particularly if she sought from the Court the privilege of bidding and purchasing, to abstain from making any representation, however innocent it might be, which would have the effect of damping the sale or otherwise injuriously affecting the interests of the judgment-debtor. It was the duty of the decree-holder, particularly if she sought from the Court the privilege of bidding and purchasing, to abstain from making any representation, however innocent it might be, which would have the effect of damping the sale or otherwise injuriously affecting the interests of the judgment-debtor. It was on the representation that the property was burdened with the mortgages in question, that liberty was given to Musammat Intizam Begam to bid, and subject to these mortgages she purchased. She must in such a case, as it seems to me, make good her representation so far as it is possible for her to do so. Now it has been said that the judgment-debtor ought to have pressed the Court to postpone the sale pending the determination of the appeal proceedings, No doubt she would have been in a better position before us if she had done so, but she may well have thought that inasmuch as the property was being sold expressly subject to the encumbrances in question, if she was ultimately successful in her litigation, she would without doubt be placed in the position of the mortgagees and obtain payment of the mortgage-debts, as part of the consideration for the sale. “It is said that the plaintiff has not in his plaint put forward any other claim than a claim for unpaid purchase money, and that it is impossible to regard the sums stated to be secured by the two mortgages in question as purchase money, and that the suit must therefore fail, This appeals to me to be a mere quibble over words. What he claims is that the defendants should fulfil the engagement which Musammat Intizam Begam impliedly entered into and pay the amount of the encumbrances subject to which she, purchased the property, not, it is true, to the mortgagees of the property, but to the representative of the mortgagor, who, after protracted litigation, established her title to the property free from these encumbrances. It is immaterial to the defendants to whom the money is paid. They are not asked to undertake any burden which Musammat Intizam Begam did not agree to undertake. It is immaterial to the defendants to whom the money is paid. They are not asked to undertake any burden which Musammat Intizam Begam did not agree to undertake. If the transaction had been carried out by a deed of conveyance, there can be no doubt, but that provision would have been made in the deed for payment of the amount of the mortgage debts by the purchaser to the mortgagees, if the mortgages were found to be binding on the judgment-debtor, but if they were found not to be so binding, then to the judgment-debtor. Unfortunately in these cases it is not usual to have any conveyance executed the result being, that the rights and liabilities of the purchasers must be ascertained so far as they can be from the records of the proceedings. In this case as I have pointed out, the records disclose that a representation was made by the decree-holder as also by her pleader that the encumbrances in question existed and were valid encumbrances, which has turned out to be a false representation, and the only question is whether or not in a court of equity she can be held bound to make good that representation. It is impossible in my opinion to reconcile the view taken by the Court below with any principle of equity or justice. It seems to me that a Court of equity can without offending any principle or rule of law, give redress in such a case and prevent what would from at least a common sense point of view be a palpable wrong. My brother BURKITT, in his judgment, has commented at considerable length upon the frame of the suit and appears to attach weight and importance to the fact that the plaintiff in his plaint seeks payment of the sum which is the subject matter of the suit as purchase money. He seems to think that if the suit had been differently framed, the plaintiff might possibly have been entitled to some redress. He does not clearly at least specify the nature of the redress. He seems to think that if the suit had been differently framed, the plaintiff might possibly have been entitled to some redress. He does not clearly at least specify the nature of the redress. In a passage in his judgment he says that the plaintiff cannot get redress “in a suit framed like the present suit.” Now it appears to me that it is not material in what language a plaintiff's claim is couched, provided that he set forth his claim with sufficient clearness and state all the facts necessary, if proved, to entitle him to the relief which he claims. If the prayer of his plaint does not accurately describe the relief which he seeks, that appears to me to be no reason for refusing to give him redress. What the plaintiff really asked for is that the defendants as representing Musammat Intizam Begam, should satisfy a claim which at the time of the purchase by her she held out to be an existing claim on the property and subject to which she purchased the property. The statement of facts contained in the plaint and the prayer to the plaint afford adequate means as it seems to me for rendering justice. I may observe that the learned Subordinate Judge did not treat the claim as a claim for purchase money in the strict sense. In the course of his judgment he says, “Now what does the plaintiff claim in this case? He claims the principal and interest of the aforesaid two prior mortgages proclaimed at the time of sale on the ground that the amount claimed by him should be considered as part of the purchase money which the purchaser undertook to pay to encumbrances and which he had not to pay because the said prior mortgages were subsequently held to be invalid.” He says in effect that the plaintiffs contention was that the amount of the mortgage debts proclaimed at the time of the sale as binding on the property should be considered not as part of the purchase money which the purchasers undertook to pay. It seems to me that there is no such vice in the pleading as prevents us from dealing with the case on broad principles of equity, and that we are not hindered from applying to the case the principles of justice, equity,” and good conscience by any inapt or inappropriate words which may have been,—I do not say have been,—used by the plaintiff's pleader. 27. But there is the other point of view from which this case may be regarded, and that is this: the interest of the judgment-debtor which was put up for sale by the Court was the equity of redemption in the property. What the Court professed and purported to sell was this equity of redemption, and what it must be taken the decree-holder understood that she was purchasing was this equity and this equity alone. In such a case the purchaser will not ordinarily get a greater interest than that which Court intended to sell and that which the purchaser understood he bought. In the case of Simbhu Nath Pande v. Golap Singh : [1887] L.R., 14 I.A., 77, at 83, in which the father and head of a joint Hindu family mortgaged some joint family property, and in a suit by the mortgagee, a decree for sale of the property was passed and it was sold, it was held by their Lordships of the Privy Council, affirming the decision of a Bench of the High Court at Calcutta, that whatever was the nature of the debt for which the mortgage was executed, only the right and interest of the father in the joint family property was intended to pass by the certificate for sale. In the course of their judgment, their Lordships say:— “Each must depend on its own circumstances. In the course of their judgment, their Lordships say:— “Each must depend on its own circumstances. It appears” to their Lordships that in all the cases—at least the recent cases—the inquiry has been what the parties contracted about if there was a conveyance, or what the purchaser had reason to think he was buying if there was no conveyance, but only a sale in execution of a money decree.” In the course of the argument in the case of Pettaclii Chettiar v. Sangili Vira Pandia Chinnathambiar: [1903] L.R., 31 I.A. 1, Lord WATSON observed, in regard to the case of a sale in execution of a money decree the question being as to what the right, title and interest sold were, as follows:— “The questions are what did the court intend to sell and what did the purchaser understand that he bought.” In that case the suit ‘was brought by the appellants to recover the zamindari of Sivagiri which was purchased by their predecessor in title at an auction sale held in execution of various decrees obtained against the late zamindar, father of the respondent, and under which the zamindari had been attached during his life, but the actual sale took place after his death. The District Court, as also the High Court at Madras, held that nothing passed under the sale but the right to recover the rents due and unpaid at the death of the late zamindar. The plaintiffs claimed that the right to the whole zamindari passed to the auction purchaser. The defence was that the debts were not contracted for the benefit of the zamindari, and affected only the life interest of the late zamindar, and………………………and that what was sold at auction, was in substance the arrears of rent which were then due to the late zamindar up to his death and nothing more. In delivering the judgment of their Lordships, Sir BARNES PEACOCK, at page 88 of the report, remarks:— “If the whole estate could have been put up for sale, it was not put up. It is not a question of what the Court could have done, or what they ought to have done, but what they did, what was put up for sale and what was purchased. It is not a question of what the Court could have done, or what they ought to have done, but what they did, what was put up for sale and what was purchased. If what was put up for sale was merely the estate which the father had in his life-time, then what the purchaser purchased was only that interest. The High court having carefully reviewed the whole of the evidence and the whole of the documents came to the conclusion that the first Court was right in finding that all that was intended to be sold and all that was sold was the life interest of the father and not whole interest in the zamindari.” The rulings in these cases appear to me not to be inapplicable in the present case. What was put up for sale here and what the Court intended to sell and what the purchaser understood she was purchasing, was the, equity of redemption of property which was subject to two mortgages which were specified’ in the same proclamation. In the very recent case of Abdul Aziz Khan v. Appayasami Naickat, [1887] L.R., 14 I.A., 84, at 85, a question somewhat similar to that which is before us, was considered and determined by their Lordships. It was held that where the right, title and interest of a judgment-debtor, owner of an impartibly zamindari, was sold in 1873 and 1876 in execution of a decree for debts for which the debtor's joint family was not liable, and the accepted interpretation of the law at the time was that an impartable estate was inalienable, except for the life of the holder, or under special circumstances the Courts must be deemed to have intended to sell and the purchaser to buy the right, title and interest as then understood, namely, as one which ceased at the debtor's death; and this notwithstanding that the interpretation of the law then prevailing has been subsequently over-ruled”. Applying the principle of these cases to the present case it seems to me impossible to hold that Musammat Intizam Begam, the decree-holder, who admittedly intended to buy the property in dispute subject to two mortgages which were specified in the sale proclamation, can successfully claim to have purchased an unencumbered estate. Applying the principle of these cases to the present case it seems to me impossible to hold that Musammat Intizam Begam, the decree-holder, who admittedly intended to buy the property in dispute subject to two mortgages which were specified in the sale proclamation, can successfully claim to have purchased an unencumbered estate. She was entitled to obtain from the Court that which the Court purported to sell and that which she agreed to purchase, that is, the property which she purchased subject to the payment of the principal sums and interest which were stated by her before the sale to be validly charged on the property, and subject to which the court sold the property. The amount of the encumbrances which the Court was led to believe were existing encumbrances, and subject to which the sale was expressly made must, I think, be paid, and I also am of opinion that the appellant is entitled to a lien on the property in respect of this amount. As I have pointed out, it was quite immaterial to the purchaser to whom the money is paid; the purchaser is in no way prejudiced inasmuch as she gets all that she bargained for. 28. For these reasons I would allow the appeal and set aside the decree of the Court below and give a decree to the appellants for such proportionate part of their claim as may fairly be attributable to the villages purchased by Musammat Intizam Begam. This would necessitate the taking of an account as to the respective values of the villages comprised in the two mortgages, so as to ascertain the proportion of the debts which is properly attributable to the villages purchased by Musammat Intizam Begam. BLAIR, J.:— It is needless to recapitulate in detail the admitted facts set forth in the judgment of the Chief Justice and my brother BURKITT. To avoid explanation and prolixity I shall without following the devolutions of interest, speak of the mortgagor's interest in the series of mortgages, with which we have to deal, as Khairati's estate. Those mortgages are three in number; The first was executed on the 25th of May, 1877, in favour of Govind Parsad and others. The second was executed on December 2nd, in favour of the same mortgagees. The third was executed in favour of one Musammat Intizam Begam on October 17th, by Khairati's then representatives. Those mortgages are three in number; The first was executed on the 25th of May, 1877, in favour of Govind Parsad and others. The second was executed on December 2nd, in favour of the same mortgagees. The third was executed in favour of one Musammat Intizam Begam on October 17th, by Khairati's then representatives. On January 27th, 1887, Intizam Begam sued to enforce her mortgage and got a decree on February 25th, 1889, for sale of the mortgaged property. At that date no suit had been instituted for the enforcement of either of the other mortgages. Musammat Intizam Begam did not implead the mortgagees under either of the other mortgages. On June 30th, 1889, Musammat Intizam Begam applied for the execution of her decree by the sale of the villages included in it, all of which villages were included in one or both of the prior hypothecations. Before the issue of a proclamation of sale under Musammat Intizam's decree, to wit, upon the 2nd June, 1890, a suit was instituted to enforce the mortgage of December 2nd, 1877, and on the 24th of May, 1894, after the sale held under Musammat Intizam's decree, another suit was filed to enforce the mortgage of May 25th, 1877. Both these suits were finally dismissed at dates posterior to the date of the confirmation of the sale held under Musammat Intizam's decree upon April 20th, 1894. After the mortgage of, May 25th, 1877, was put in suit, the name of Musammat Intizam Begam was included by the Court in the array of defendants, but she was not made a party to the suit on the mortgage of December, 1877, upon June 26th, 1894. 29. Upon the 10th of December, 1892, Musammat Intizam Begam had presented a petition to the Court executing her decree for leave to bid at the sale. The reason given was that the decree is for a considerable amount, perhaps there might not be forthcoming any purchaser, for the property is encumbered with heavy debts. On January 6th, 1893, the proclamation of sale not having then been issued, Mr. Bamanji, pleader for the decree-holder, filed what is described as a deposition alleging that the encumbrances on the property for the sale of which his client had got a decree, were mortgaged to the aggregate extent of Rs. On January 6th, 1893, the proclamation of sale not having then been issued, Mr. Bamanji, pleader for the decree-holder, filed what is described as a deposition alleging that the encumbrances on the property for the sale of which his client had got a decree, were mortgaged to the aggregate extent of Rs. 30,000 only, and not to such larger amount as had been by mistake alleged.’ In the proclamation of sale the encumbrances are specifically set forth as Rs. 10,000 on Mauza Girdharipur, and Rs. 20,000 on the aggregate of all the other hypothecated villages. On this basis the sale took place, as is shown from a proceeding recorded by the officer conducting the sale and which is set forth on page 6 of the appellant's printed book and also from an order of the Collector printed on page 25 of the same book. There is nothing to show that upon any other representation than that of Musammat Intizam, the two sums of Rs. 10,000 and Rs. 20,000 were so allocated to the different villages in the proclamation of sale. There is no such specification to be found in the bonds. In accordance with her request, Musammat Intizam Begam was permitted to bid at the auction sale and became the purchaser of eight of the hypothecated villages for the aggregate sum of Rs. 64,100. Such purchases were made subject to the notification in the proclamation of sale of the encumbrances above specified and no doubt, to such interest as might have become due upon such encumbrances and remained unpaid. The total alleged by the plaintiff in this suit to have been due upon the footing of the two prior mortgages, assuming that they were valid and binding instruments, was Rs. 1,61,766-11-0. These mortgages having been since declared to have been invalid and in no way binding upon the estate of Khairati in the hands of the plaintiff, Musammat Intizam had not, nor after her death had her representatives made any payment whatever upon account of such encumbrances. 1,61,766-11-0. These mortgages having been since declared to have been invalid and in no way binding upon the estate of Khairati in the hands of the plaintiff, Musammat Intizam had not, nor after her death had her representatives made any payment whatever upon account of such encumbrances. The plaintiff seeks to recover the whole of that sum as ‘part of the unpaid vendor's purchase money,’ and also claims a decree declaring that he has a lien for the said amount against the villages purchased at auction and now in possession of the defendants.’ The first question arising in this suit is whether the plaintiff is entitled to recover such amount if at all as ‘vendor's unpaid purchase money,’ The answer depends upon whether the purchaser at the auction sale intended to buy and the Court holding the sale intended to sell the interest in the property of which the sum claimed is sought to be recovered by the plaintiff as the contractual price either actual or constructive. In my opinion that question admits of but one answer. The executing court and the purchaser both assumed the validity of the two prior encumbrances notified in the proclamation of sale, and both of them believed that what was bought and sold was the equity of redemption and no more. If that be so, the plaintiff's claim has been wrongly formulated, and we have now to consider whether the plaintiff possesses any other equity more applicable to the facts of the case on which we can and ought to give him relief. It was, I think, admitted in argument that this case falls within no precedent set forth in the records either of the English Courts or our own. I am not aware of relief in any such case having been either granted or refused or indeed of any similar case having been litigated at all. Upon the question whether the plaintiff ought to be strictly bound by the form in which he has asked for relief, I think it lies in the discretion of the Court to grant an alternative relief not formulated in the plaint, if the, facts set forth in the plaint and established disclose a right to such other relief; and if the defendant has not been deceived or otherwise injuriously affected by the, form of the plaint; such relief may properly be granted. In this case I am unable to see that the defendants have been prevented from setting up any facts material for their defence or have been otherwise prejudiced. No doubt, the plaintiff's advisers have found themselves much hampered in the framing of their suit, by the absence of an appropriate precedent. Having already expressed my opinion that what was purchased by Musammat Intizam Begam was an equity of redemption only, it follows that what site undertook to pay and did pay to the executing court was the price of the equity of redemption only, no part of which price is now unpaid. It seems to me, therefore that the form of the suit was misconceived, and that we cannot grant the plaintiff relief, as for unpaid purchase money. But if upon the facts before us, sitting as a Court bound to apply to the facts the principles of justice, equity and good conscience, we find that the plaintiff has an equitable claim, we ought to pause long before refusing to grant relief. As an illustration only I may instance the usual practice of the equity courts in suits brought for the enforcements of contracts, as summarized on page 209 of Leak on Contracts, edition of 1902, where a party claims specific performance of a contract upon a construction which is decided against him, he may in general waive his construction and obtain performance according to the construction found by the court or that admitted by the defendant.’ In other words he may succeed upon a contract different from that he sued upon. To my mind there is no substantial difference between a mistaken construction of the terms of a contract and a mistaken construction of facts, and in the latter as in the former case, I would hold that a plaintiff should be granted such relief as he is entitled to upon ‘a true construction of the facts, and if, in the increasing complexity of modern times cases arise to which no existing formula is strictly appropriate, it was for the repairing of such omissions that the equity courts came into existence and developed that far-reaching series of doctrines which has now been incorporated as the dominant factor in the English law. Every formula must have had as its progenitor some single case which fitted into no then existing formula. Every formula must have had as its progenitor some single case which fitted into no then existing formula. The very essence of equity has been elasticity, and I am of opinion that this, admittedly unique, case discloses facts upon which the plaintiff is in equity entitled to relief. 30. I have not failed to observe that the plaintiff has not in his plaint imputed any misrepresentation, intentional or otherwise, to Musammat Intizam Begam, although she through her pleader represented to the executing court the existence of the encumbrances afterwards set forth in the notification of sale. It was probably unknown to her that the validity of these documents would be disputed, when sought to be enforced by suit. But at any rate it was to some extent at her suggestion and with her acquiescence that the property sold was notified as subject to these encumbrances. Furthermore, it was entirely in her power when she brought her suit upon her own mortgage to bring to the test the validity of the documents, of which she certainly had actual or at all events constructive notice, and entertaining no doubt of their validity, was bound in law to make all the mortgagees parties to her suit. Upon her offer to redeem them at such amounts as the Court might find to be then due to the prior mortgagees upon their two encumbrances the validity of such mortgages must have been put in issue between such prior encumbrances and the representatives of Khairati's estate. If these issues had been tried in the suit brought by Musammat Intizam upon her mortgage, the estate of things which has given rise to the present suit, could never have arisen. On the other hand, it was not possible for the representatives of the estate of Khairati to plead in their defence in Musammat Intizam Begam's suit the provisions of section 85 of the Transfer of Property Act, because they did not admit to the smallest extent the validity of the prior mortgages. It is clear that Musammat Intizam Begam violated an express provision of the law in failing to implied the mortgagees, whose rights she admitted in intention, if not in fact. It is clear that Musammat Intizam Begam violated an express provision of the law in failing to implied the mortgagees, whose rights she admitted in intention, if not in fact. It is impossible to doubt that the price paid by Musammat Intizam for the villages she purchased at auction, was lowered by the notification of the prior mortgages to the extent of the principal sums purporting to be secured by them, and also by the knowledge or opinion of other bidders as well as herself as to the amount of interest due upon them. To that extent it seems to me that Musammat Intizam wrongfully gained what the mortgagor's interest, the estate of Khairati, wrongfully lost. “Indeed the result is precisely the same as if Musammat Intizam Begam had bought out and out the property of which she had purchased only an equity of redemption and had bought it at the price of the equity. To the same extent was the mortgagor's interest depleted. That amount I would hold that the plaintiff in this suit is entitled to recover. If Musammat Intizam believed she was buying, and the executing court believed that it was selling nothing but an equity of redemption, than that is all she took by her purchase. The whole interest in the property other than that equity of redemption of right belongs to the estate of the judgment-debtor. Seeing then that the wrongful gain of the one party is commensurate with the wrongful loss of the other, and is ascertainable in terms of money, it seems to me quite admissible for the Court to pass a decree in money instead of putting the parties to the expense of circuitous proceedings framed to restore them to their original position. The plaintiff demands precisely what Musammat Intizam Begam would have had to pay and was willing to pay to the mortgagees whose encumbrances had been notified, and by her purchases at the sale she assented to such payment. There is no injustice in compelling her to pay the price she was willing and practically promised to pay, the only difference is in the persons to whom the payment is made. I would therefore decree this appeal with costs. Of course the liability will have to be ratably distributed among the different villages, and for that purpose an account will have to be taken. I would therefore decree this appeal with costs. Of course the liability will have to be ratably distributed among the different villages, and for that purpose an account will have to be taken. I concur in the order proposed by the Chief Justice. By The Court : As this suit has been decided on a preliminary point, namely, that the plaintiff-appellant could hot maintain the suit, and other issues have been left undetermined, it will be necessary for us to remand the suit to the lower court under the provisions of section 562 of the Code of Civil Procedure, with directions to re-admit it on the list of pending suits in its original number, and dispose of it on the merits. The Court will have regard to the judgment of this Court in regard to the liability of the defendants to pay a proportionate part only of the two mortgage-debts in the pleadings mentioned, that is, so much of the mortgage-debts as are properly attributable to the villages which have been purchased by the defendants-respondents. For this purpose it will be necessary to have the respective values of the villages ascertained and the apportionment made in view of the provisions of section 82 of the Transfer of Property Act. The Court will have regard to the fact that only some of the villages are subject to the mortgage to secure Rs. 30,000, and the fact that each mortgage does not affect each of the villages. The first and fifth issues which are practically the same, alone have been disposed of by our judgment, and it was admitted before us that section 244 of the Code of Civil Procedure does not bar the suit. The other issues remain to be determined. The respondents must pay the costs of this appeal. All other costs will abide the event. The objections filed under section 561 of the Code are not pressed. They are dismissed with costs.