Judgement Appeal from a decree of the High Court (April 20, 1909) affirming a decree of the Subordinate Judge of Mirzapur (April 16, 1907). On June 2, 1893, Lakhpati Kunwar executed a mortgage to the appellant and his son charging her zamindari and also certain mortgagee rights which she held in certain other zamindaris with the payment of Rs.40,000. On November 24, 1896, she sold all her immovable property for Rs.44,000, including the equity to redeem the said mortgage, to the respondent, who retained Rs.40,000 of the price in order to redeem the mortgage if he thought fit. The mortgagees, who were members of a joint Hindu family, separated, and the mortgage fell to the share of the appellant, who on August 16, 1905, obtained a decree absolute for the sale of the mortgaged property, the High Court recording in its judgment that if it; proved insufficient the appellant might apply for sale of the said mortgagee rights also. The sale took place and its proceeds were insufficient. Accordingly the appellant on January 7, 1907, prayed for a decree under s. 90 of the Transfer of Property Act, 1882, against the person and property of the respondent; and that the said mortgagee rights might also be sold. 6 Law. Rep. 39 Ind. App. 7 ( 1911- 1912) Jamna Das V. Pandit Ram Autar Pande 127 The respondent pleaded, amongst other things, that a decree under s. 90 of the Transfer of Property Act could not be legally passed against him. The Subordinate Judge held that the respondent as transferee of mortgaged property was not a person against whom a decree under s. 90 could be granted. The mortgagee rights were, there fore, again exempted from sale. That section is in these terms " When the net proceeds of any such sale are insufficient to pay the amount due for the time being on the mortgage, if the balance is legally recoverable from the defendant otherwise than out of the property sold, the Court may pass a decree for such sum." The High Court, in a judgment which is reported in I. L. R. 31 Allah. 352, affirmed this ruling and said " The simple question is, can it be said that the balance 6i the mortgage debt is legally recoverable from Pandit Ram Autar Pande otherwise than out of property sold ? 352, affirmed this ruling and said " The simple question is, can it be said that the balance 6i the mortgage debt is legally recoverable from Pandit Ram Autar Pande otherwise than out of property sold ? The mortgagee rights unfortunately cannot be sold because the decree of the High Court, dated November 29, 1904, was unappealed from and has become final. If the decree-holder is not entitled to a personal decree against Pandit Ram Autar Pande, he is without a further remedy in the present suit. It is contended that by retaining in his hands part of the purchase-money and expressly or impliedly agreeing to pay the amount to Jamna Das, he became personally liable. In our opinion this contention is not sound. Jamna Das was no party to the contract between Musammat Lakhpati Kunwar and Pandit Ram Autar Pande. No Indian or English case has been cited to us in which it has been ever held or suggested that the transferee of the equity of redemption in mortgaged property becomes personally liable to the mortgagee." Sir Erle Richards, K.C., and Ross, for the appellant, contended that the High Court was in error in holding that a decree under s. 90 could not be passed against the respondent Ram Autar Pande. The appellant was entitled to call upon him to pay the money due on the mortgage out of the purchase-money in respect of the mortgaged property which was left in his hands on terms which imposed upon him a trust to pay it to the mortgagee. Under the circumstances of the sale and purchase between Lakhpati Kunwar and Ram Autar Pande the appellant was entitled to a personal decree against the latter for the full amount claimed, as an amount which was in the words of s. 90 recoverable from the property in his hands. Reference was made to Mata Din Kasodhan v. Kazim Husain (( 1891) 1. L. R. 13 Allah. 432); Gang a Prasad v. Chunni Lal. (( 1893) I. L. R. 18 Allah. 113.) [Lord Macnaghten referred to Izzatunnissa Begam v. Kunwar Pertab Singh. (( 1909) L.R 36 Ind. Ap. 203.)] De Gruyther, K.C., and Dube, for the respondent Ram Autar Pande, were not heard. The judgment of their Lordships was delivered by LORD MACNAGHTEN. This is a perfectly plain case. (( 1893) I. L. R. 18 Allah. 113.) [Lord Macnaghten referred to Izzatunnissa Begam v. Kunwar Pertab Singh. (( 1909) L.R 36 Ind. Ap. 203.)] De Gruyther, K.C., and Dube, for the respondent Ram Autar Pande, were not heard. The judgment of their Lordships was delivered by LORD MACNAGHTEN. This is a perfectly plain case. The action is brought by a mortgagee to enforce against a purchaser of the mortgaged property an undertaking that he entered into with his vendor. The mortgagee has no right to avail himself of that. He was no party to the sale. The purchaser entered into no contract with him, and the purchaser is not personally bound to pay this mortgage debt. Therefore he is not a person from whom, in the words of the 90th section of the Transfer of Property Act, " the balance is legally recoverable." Their Lordships will therefore humbly advise His Majesty that this appeal must be dismissed with costs.