Judgement Appeal from a decree of the High Court (Feb. 10, 1899) varying a decree of the Subordinate Judge of Mozufferpore (Sept. 30, 1896). The suit was for the enforcement of two mortgage securities, one dated June 23, 1894, and the other December 30, 1894, executed by the respondents Birj Behari Lal and Gobind Lal in favour of the deceased plaintiff Birj Mohun Lal, the husband of the appellant. Birj Mohun Lal alleged in his plaint (a) that he had on January 5, 1894, obtained from the Court of the Subordinate Judge of Monghyr a decree against the said Birj Behari Lal and his brother Gobind Lal on a mortgage or "teep" dated December 24, 1889, for Rs. 22,500; (b) that pending the execution of that decree the said respondents executed to him (on June 23, 1894) a fresh mortgage for Rs. 40,000, including 2 Law Rep. 31 Ind. App. 176 ( 1903- 1904) Sham Kumari V. Raja Rameswar Singh Bahadur 73 the amount due under the decree, and had also undertaken that the property so mortgaged was at the time of such mortgage free from all incumbrances whatsoever; (c) that the plaintiff after the execution of the later mortgage came to learn that the properties so mortgaged to him were not un-incumbered, but were already subject to a mortgage in favour of the respondent Raja (whom the plaintiff, therefore, made the defendant second party to the said suit) for Rs. 50,000; (d) that thereupon the plaintiff, to protect his own interests, procured the execution by the Lal defendants to himself of a supplemental bond on December 30, 1894 ; (e) that upon further inquiry the plaintiff learned that the Lal defendants, being greatly indebted to many creditors, had, under undue influence of the said Raja, and in collusion with him and without any consideration therefor, executed to him a mortgage bond of November 8, 1892, mortgaging all the properties in or over which they possessed any right or control; (/) that the Raja had thereafter fraudulently sued upon the said last-mentioned bond without joining the plaintiff as a party in such suit, and had obtained an ex parte decree therein on January 22, 1895, by which decree the plaintiff submitted that he was in no way bound or affected; (g) that the Lal defendants had also executed to the plaintiff at the same time as the bond of December 30, 1894, a deed of sale of a bond by two persons named Khoda Buksh, alias Chowbey, and Ilahi Buksh, alias Dobey, of January 1, 1888, for Rs. 5500, by which deed it was stipulated that any sum that might be realized in respect of that bond should be applied in reduction of the debt due under the mortgage, but that the bond of January 1, 1888, had not been sued upon, nor any money realized in respect of the same, and it was prayed, inter alia— (a) That a decree might be passed for Rs. 44,893, the principal and interest due in respect of the said two mortgages, and that the plaintiff’s right to realize the same from the mortgaged properties and all other property of the Lal defendants and from their persons might be declared. (b) That the mortgage bond, dated November 8, 1892, in favour of the respondent Raja might be declared fictitious and of no avail. (c) That if the mortgage to the Raja should be held to be good, the properties mortgaged to the plaintiff might be sold under the said plaintiffs decree, subject to the Rajas rights as mortgagee. (b) That the mortgage bond, dated November 8, 1892, in favour of the respondent Raja might be declared fictitious and of no avail. (c) That if the mortgage to the Raja should be held to be good, the properties mortgaged to the plaintiff might be sold under the said plaintiffs decree, subject to the Rajas rights as mortgagee. (d) That the purchaser in execution of the plaintiffs decree might be declared entitled to redeem the mortgaged properties within six months from the date of the plaintiffs decree upon payment of the decretal amount due to the respondent Raja, or of the amount for which the property might be sold at such auction sale, whichever the Court might deem proper. (e) That as pending the said litigation some of the properties belonging to the Lal defendants had been procured by the machinations of the respondent Raja to be sold for non payment of Government revenue, and had been purchased by himself in the name of Isri Pershad, the fourth defendant, such sale might be declared to have conferred no rights upon the Raja prejudicial to the plaintiff. The Raja in his written statement affirmed the bona fides and validity of his mortgage bond of November 8, 1892, and impugned the plaintiffs mortgages of December 24, 1889, and December 30, 1894. The Subordinate Judge found in favour of the genuineness and validity of the mortgages on both sides, and held that the plaintiff, being a second mortgagee, was entitled to redeem the mortgaged property, but not the three villages of Bisfi Kaithahi, Bahadurpore, and Dullapore, all three of which he found 2 Law Rep. 31 Ind. App. 176 ( 1903- 1904) Sham Kumari V. Raja Rameswar Singh Bahadur 74 had been purchased by the Raja at revenue sales thereof. In reference to this purchase he held that under the provisions of the revenue law he had bought them free from all incumbrances. He further ordered that the plaintiff should be credited with the surplus sale proceeds of the three properties. In reference to this purchase he held that under the provisions of the revenue law he had bought them free from all incumbrances. He further ordered that the plaintiff should be credited with the surplus sale proceeds of the three properties. The High Court held, as to the equities between the parties arising out of the Rajas purchase, that the respondent Raja was under no obligation to pay off the arrears of revenue which had fallen due before his purchase at the execution sale, and that it was quite open to him to buy the properties at the revenue sale, which sale discharged the estate from all liabilities. The High Court affirmed the decision of the Court below to the effect that the amount of Rs. 5500 due under the sold bond should be deducted from the plaintiffs claim. They then slightly altered the decree of the lower Court to bring it into accord with the provisions of s. 92 of the Transfer of Property Act (Act IV. of 1882) by inserting a direction in the decree of the lower Court, directing that in default of payment of the amount due to the respondent Raja within six months of the ascertainment of the same, the properties mortgaged to him other than the three properties purchased by him as aforesaid at the revenue sale should upon his application in that behalf be sold in satisfaction of his claim. C. W. Arathoon, for the appellant, contended that the Courts below should have held that the purchase by the Raja respondent of mouzahs Bisfi Kaithahi, Dullapore, and Bahadurpore were subject to the mortgage to the appellants husband. The respondent purchased in execution of his own decree, and thereby became a proprietor, within the meaning of s. 53 of Act XI. of 1859, whose duty it was to protect his purchased property from a revenue sale by paying the Government revenue thereon. The Raja admitted that the Government revenue had been purposely defaulted. The evidence shewed that the plaintiff was not aware of the revenue sale. He had not been made a party to the action under which the Raja obtained a decree in execution of which he purchased the property. Accordingly it was inequitable that the Raja should by his subsequent purchase at the revenue sale acquire the property discharged of the plaintiffs incumbrance. Reference was made to Act X. of 1859, ss. He had not been made a party to the action under which the Raja obtained a decree in execution of which he purchased the property. Accordingly it was inequitable that the Raja should by his subsequent purchase at the revenue sale acquire the property discharged of the plaintiffs incumbrance. Reference was made to Act X. of 1859, ss. 55, 37, and 53. The purchaser at the revenue sale was an unrecorded proprietor, and therefore did not purchase free from incumbrance. He had done nothing to alter his position or to annul the incumbrance. Under s. 53 as unrecorded proprietor he bought subject to the plaintiffs mortgage see Abdool Bari v. Ramdass Coondoo (( 1878) Ind. L. R. 4 Calc. 607.); Mahomed Gazi Chowdhry v. Leicester. (( 1871) 7 Beng. L. R. App. 52.) If s. 37 applied, the mere sale would not avoid the incumbrances. They were in that case only voidable at the option of the purchaser, who must shew that he wished or intended to annul them see Jatra Mohun Sen v. Aukhil Chandra Chowdhry (( 1896) Ind. L. R. 24 Calc. 334.), Komul Kumari Chowdhrain v. Kuan Chandra Roy (( 1898) 2 C. W. N. 229.), and Titu Bibi v. Moheshchunder Bagchi. (( 1883) Ind. L. R. 9 Calc. 683, 686, 687.) Haldane, K.C., Phillips, and Bonnerjee, for the respondent Raja, contended that the High Court rightly held that the respondent by his purchase of the three mouzahs in question at the sale thereof for arrears of revenue acquired the same free from all charges and incumbrances thereon. This is an entire estate with a separate towzi number, and s. 37 of Act X. of 1859 applies to it, and all charges thereon are avoided by the salein question. Sect. 53 relates to shares of estates, and makes no difference between recorded and unrecorded proprietors. All the cases cited on the other side are cases under s. 53, which does not apply. Neither of the judgments of the Courts below refer to that section. Reference was made to Mahomed Gazi Chowdhry v. Leicester (7 Beng. L. R. App. 52, 54.) and to Jatra Mohun Sen v. Aukhil Chandra Chowdhry. (( 1896) Ind. L. R. 24 Calc. Neither of the judgments of the Courts below refer to that section. Reference was made to Mahomed Gazi Chowdhry v. Leicester (7 Beng. L. R. App. 52, 54.) and to Jatra Mohun Sen v. Aukhil Chandra Chowdhry. (( 1896) Ind. L. R. 24 Calc. 334.) The respondent at the date of his purchase at the revenue sale was not within the meaning of s. 53 a proprietor, because the default had been made before his purchase at the execution sale in February, 2 Law Rep. 31 Ind. App. 176 ( 1903- 1904) Sham Kumari V. Raja Rameswar Singh Bahadur 75 1896. His purchase, therefore, at the execution sale was sub ject to the consequences of default—that is, to the revenue sale. He bought, therefore, not the estate, but the right to the surplus proceeds at the revenue sale over and above the amount of the arrears. The sale, too, was with relation back to a date anterior to the execution sale. See the Partition Act (Bengal) VIII. of 1876, where "proprietor" is defined as a person in possession, and see s. 28 of Act XI. of 1859. The respondent was not liable to pay the arrears of revenue due on the estate for they were due for a period prior to his purchase at the execution sale. Arathoon replied. July, 12. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. The suit out of which this appeal arises was brought by the plaintiff (now represented by the appellant) on July 18, 1895, in the Court of the Second Subordinate Judge of Tirhoot, to enforce two mortgage bonds dated June 23 and December 30, 1894. He joined as defendants (1.) his mortgagors, defendants of the first part, and (2.) the first respondent (hereinafter spoken of as "the respond ent"), who claimed to be a prior mortgagee of the properties charged. The plaint alleged that the mortgage to the respond ent was without consideration and invalid. It referred to a debt assigned to the plaintiff by the mortgagors, raising a question which will be dealt with hereafter. It also raised a point with respect to certain mouzahs, included among the mortgaged properties, which the respondent has purchased at revenue sales. It was contended in the plaint that by such purchases the respondent, for the reasons assigned, had acquired no fresh right prejudicial to the plaintiffs right. It also raised a point with respect to certain mouzahs, included among the mortgaged properties, which the respondent has purchased at revenue sales. It was contended in the plaint that by such purchases the respondent, for the reasons assigned, had acquired no fresh right prejudicial to the plaintiffs right. And relief was prayed for accordingly. The mortgagor defendants did not appear to the suit, nor have they appeared on this appeal. The respondent appeared and filed his written statement, in which he in his turn attacked the validity of the plaintiffs mortgage bonds while maintaining the validity of his own. He said specifically that the plaintiffs account filed with his plaint was wrong in not giving credit as against the plaintiff for the amount of the assigned debt mentioned in the plaint. And he denied generally the allegations of the plaint. Issues were settled, and the case came on for hearing before the Subordinate Judge. At the trial the evidence was mainly directed to the questions raised as to the validity of the mortgages of the plaintiff on the one side and of the respondent on the other. The Subordinate Judge found that the plaintiffs and the respondents mortgages were both valid. As to the assigned debt, he debited the plaintiff with the amount. With regard to the properties purchased by the respondent at auction sales, he held that that defendant by his purchases had acquired them under the Revenue Sales Act (XI. of 1859), free of incumbrances, including the plaintiffs charge, and that, there fore, the plaintiffs claim could not be enforced against them. The Subordinate Judge accordingly made a decree, the effect of which, so far as is material for the present purpose, was to ascertain the amount of the plaintiffs claim as second mortgagee, in ascertaining which he was debited with the assigned debt, and to entitle him to redeem the respondents prior mortgage interest in respect of the mortgaged properties other than those purchased at revenue sales (which were exempted), with the necessary consequential directions. On appeal to the High Court the whole case was reopened, but with the result that that Court affirmed the decree of the Subordinate Judge with a formal modification. And against that decision the present appeal has been brought. 2 Law Rep. 31 Ind. App. On appeal to the High Court the whole case was reopened, but with the result that that Court affirmed the decree of the Subordinate Judge with a formal modification. And against that decision the present appeal has been brought. 2 Law Rep. 31 Ind. App. 176 ( 1903- 1904) Sham Kumari V. Raja Rameswar Singh Bahadur 76 The appellants petition for leave to appeal to His Majesty in Council again sought to reopen a large part of the controversy between the parties, but in the argument before their Lordships the appellants contentions were limited to two. One question related to the assigned debt already referred to, and it arises in this way. At the time of the second mortgage in favour of the plaintiff the mortgagors also executed another deed, spoken of as a bechinama, by which they assigned to him a debt due to them from a third person. In taking the account of what was due to the plaintiff the Courts in India have debited the appellant with the amount of that debt. The appellant urged that it ought to be debited only if and when actually received. The respondent, through his learned counsel, disclaimed all interest in the question. In their Lordships opinion, it lay upon the plaintiff to use reasonable diligence to recover the assigned debt from the debtor. But the High Court has found (and the finding is not impugned in fact) that no serious attempt seems to have been made to recover any portion of it. This being so, their Lordships see no reason to dissent from the conclusion which has been arrived at in India with regard to this matter. The remaining question raised on behalf of the appellant is a question of law and one of some general importance. One of the mehals purchased by or on behalf of the respondent at revenue sales, and which it was considered in India that he had acquired free from incumbrances and therefore free from the plaintiffs claim, is the mehal Bisfi Kaithahi. It appears, however, that as to that property the respondents position is peculiar, because prior to the revenue sale he had already purchased the same property at an execution sale under the Civil Procedure Code. It appears, however, that as to that property the respondents position is peculiar, because prior to the revenue sale he had already purchased the same property at an execution sale under the Civil Procedure Code. The material facts are these The respondent sued his mortgagors, who were also the mortgagors of the plaintiff, and on January 22, 1895, obtained an ex parte decree against them. The appellant was not made a party to this suit. That decree the respondent proceeded to execute by attachment and sale of Bisfi Kaithahi under the provisions of the Civil Procedure Code. The sale took place on February 17, 1896, when the respondent himself became the purchaser. On March 21, 1896, he obtained his sale certificate, and on April 29 he was put into possession. In the meantime, on January 12, 1896, default occurred in payment of Government revenue payable in respect of Bisfi Kaithahi. On March 25, 1896, that property and other properties were brought to sale under the Revenue Sales Act, and the respondent in the name of a benamidar became the purchaser of Bisfi Kaithahi. And, on September 7 following, the sale certificate in the name of the benamidar was granted which, in accordance with the law, declared that the sale took effect from January 13, 1896, the day after the last day fixed for payment of the kist in respect of which the default had been made. The contention for the appellant is that, under these circumstances, the purchase of Bisfi Kaithahi by the respondent at the revenue sale was a purchase of an estate of which he was proprietor within the meaning of s. 53 of the Revenue Sales Act, and that by the terms of the section he purchased subject to incumbrances, including the plaintiffs. For the respondent it was contended that the case was governed, not by s. 53, but by s. 37, and that under it he took free from incumbrances such as that of the plaintiff. For the respondent it was contended that the case was governed, not by s. 53, but by s. 37, and that under it he took free from incumbrances such as that of the plaintiff. In the Courts in India the question was plainly raised whether the respondent by his purchase of Bisfi Kaithahi at the revenue sale, under the circumstances in which he did purchase, acquired it free from incumbrances or subject to the appellants right to redeem; but so far as their Lordships could learn, when this appeal was first argued before them in February last, the bearing of s. 53 upon this question was a point then raised for the first time. For this reason their Lordships deferred giving judgment upon the appeal in order that the parties might have an opportunity of further con sidering and arguing the question. Their Lordships have now had the advantage of hearing the point fully argued. In the course 2 Law Rep. 31 Ind. App. 176 ( 1903- 1904) Sham Kumari V. Raja Rameswar Singh Bahadur 77 of that argument it was made clear that, in the discussions before the Courts in India, the bearing of s. 53 upon the question in issue was not argued. It was further made clear that the research of counsel cannot bring to light any Bengal decision amounting to an express authority upon the exact point in controversy. This affords, perhaps, no great ground of surprise, for the circumstances of the case are peculiar, and such as probably do not often occur. The peculiarity of the case lies in the order of the events, which is this first, default in payment of Government revenue in respect of an estate; secondly, sale of that estate in execution by a Civil Court; thirdly, sale of the estate at a revenue sale for the default in payment, and purchase by the same person who had bought at the execution sale. The question that arises upon these facts is whether by reason of s. 53 the latter purchase was subject to incumbrances. The sections of the Act which are principally important are ss. 37 and 53, but it will be necessary incidentally to notice some other of its provisions. Sect. 37 says that " the purchaser of an entire estate in the permanently settled districts .... sold .... The sections of the Act which are principally important are ss. 37 and 53, but it will be necessary incidentally to notice some other of its provisions. Sect. 37 says that " the purchaser of an entire estate in the permanently settled districts .... sold .... for the recovery of arrears due on account of the same " purchases free of incumbrances generally, and may annul under-tenures with certain exceptions. To bring a case, therefore, within the words of this section three things must concur there must be a sale, first, of an entire estate; secondly, in the permanently settled districts; thirdly, for its own arrears. The cases excluded by the language of the section are dealt with elsewhere. Sales of shares of estates in ss. 10, 11, 13, 14, and 54; sales of estates not in permanently settled districts, in s. 52; sales of estates not for their own arrears in the latter part of s. 53. The earlier part of s. 53 introduces another distinction depending upon the character of the purchaser at a revenue sale. It says (omitting certain words which had become obsolete and have been repealed) " Excepting sharers with whom the Collector, under ss. 10 and 11 of this Act, has opened separate accounts, any recorded or unrecorded proprietor or co-partner, who may purchase the estate of which he is proprietor or co-partner .... shall by such purchase acquire the estate subject to all its incumbrances existing at the time of sale." It seems to their Lordships obvious that this enactment cannot be construed in any such way that it shall not operate as a proviso to or qualification of s. 37. This was fully conceded upon the second argument. And the respondent when he purchased at the revenue sale the same property which he had previously purchased at the execution sale was apparently a proprietor purchasing an estate of which he was proprietor. This was fully conceded upon the second argument. And the respondent when he purchased at the revenue sale the same property which he had previously purchased at the execution sale was apparently a proprietor purchasing an estate of which he was proprietor. It was argued, however, in the first place, that the respond ent, when he bought at the revenue sale, was not a proprietor of the estate although he had previously bought at the execu tion sale, because when he made the last-mentioned purchase default had already been made in payment of revenue, for which in the ordinary course it would be sold; so that what was really bought at the execution sale was not the estate, but the right to receive any surplus sale proceeds of the estate when it should be sold for revenue. But liability to sale is not the same thing as sale, and until a revenue sale takes place the ownership of the estate remains as it has been, except so far as the provisions of the Act interfere with it. It is always open to the Collector under s. 18 to exempt the estate from sale if the arrears are paid up before sale ; and it is a matter of common knowledge that this is a power which Collectors exercise freely. To regard an estate in respect of which default has occurred, and which is therefore liable to sale, as a lost estate would be quite contrary to the facts as they exist. It was next contended that the proprietors mentioned in s. 53, and upon whom the disability is imposed, should be restricted to defaulting proprietors. It was said, and probably correctly said, that the principal 2 Law Rep. 31 Ind. App. 176 ( 1903- 1904) Sham Kumari V. Raja Rameswar Singh Bahadur 78 object of the Legislature was to prevent defaulters from taking an unjust advantage of their own wrong ; but the language of the section must be construed as it stands, and it does not contain the suggested limitation. If, too, we are to look outside the section itself for help in construing the words of s. 53, the other analogous provisions of the Act suggest a construction different from that contended for. If, too, we are to look outside the section itself for help in construing the words of s. 53, the other analogous provisions of the Act suggest a construction different from that contended for. The latter part of s. 53 dealing with sales of estates otherwise than for their own arrears, and s. 54 dealing with sales of shares of estates, impose limitations upon the rights of purchasers, in the one case identical with, in the other case similar to, those imposed in the case now in question, and in those cases the disability is certainly not confined to defaulters. On this point the case of Abdool Bari v. Ramdass Coondoo (Ind. L. R. 4 Calc. 607.) seems to shew that the view which their Lordships adopt was that which in 1878 was accepted by the High Court. It was further contended that the purchase at the revenue sale having by the terms of the sale certificate related back to January 13, 1896, the day after that on which the default occurred, that is the date to be looked at for the present purpose, and that at that date the respondent was not the proprietor because it was before the execution sale. It is true that under s. 28 and Sched. A the sale certificate is to specify, as the date from which title is to be deemed to have vested in the purchaser, the day after that fixed as the last date of payment, and that that is the date from which the purchaser becomes entitled to the rents and profits on the one hand, and liable to pay the revenue on the other. But it would be a strained construction in any case to say that that is the date to be looked to in saying whether a purchaser was a proprietor when he purchased. And when the Act is considered as a whole it seems clear that when sale or purchase is spoken of in connection with time, the time meant is that at which the sate takes place in fact, not that to which its operation is carried back by relation. This is apparent from ss. 18, 20, 21, 23, and 27. And when the Act is considered as a whole it seems clear that when sale or purchase is spoken of in connection with time, the time meant is that at which the sate takes place in fact, not that to which its operation is carried back by relation. This is apparent from ss. 18, 20, 21, 23, and 27. For these reasons their Lordships are of opinion that the respondent when he purchased Bisfi Kaithahi purchased it subject to its incumbrances, including the appellants claim as second mortgagee, and that that property ought to have been included among those which the decrees of the Courts in India allowed the appellant to redeem. They will accordingly humbly advise His Majesty that it ought to be declared that the respondent purchased Bisfi Kaithahi subject to the appellants claim as second mortgagee, and that the decree of the High Court ought to be varied accordingly, and the case remitted to the High Court with directions to modify its decree in accordance with such declara tion in regard to the property which the appellant is allowed to redeem, the adjustment of costs consequent on the declara tion, the taking of further accounts, and the fixing of a further period of redemption, and otherwise as the circumstances of the case may require. There will be no order as to the costs of the appeal.