Judgement Appeal from a decree of the High Court (January 10, 1908) reversing a decree of the Subordinate Judge of Gaya (January 27, 1905). The suit was brought by the appellant to obtain from the respondent possession of a certain share amounting to 5 annas 1 ½ pies in four villages situate in the Gaya district. That share had been mortgaged in 1886 to the mother of the respondent, and in the year 1899 the respondent obtained a decree against the mortgagors for Rs.18,973.6.3. In execution thereof the respondent caused the mortgaged properties to be sold, and on March 19, 1900, himself purchased them for Rs.9200, his purchase being subsequently confirmed by a certificate of the Court dated April 23, 1900, possession being given to the respondent. On March 29, 1900, a date intermediate between the respondents purchase and its confirmation, the March instalment of Government revenue for the estate, which included the villages purchased, 16 Law. Rep. 39 Ind. App. 228 ( 1911- 1912) Musammat Bhawani Kumar V. Mathura Prasad Singh 117 become in arrear; and the whole thereof, including the said villages, was sold by the Collector to the appellants predecessor in title on June 6, 1900. This sale was carried out under the provisions (inter alia) of s. 54 of Act XI of 1859, according to which " when a share or shares of an estate may be sold .... the purchaser shall acquire the share or shares subject to all incumbrances." On March 81, 1904, the appellant sued to recover possession from the respondent of the property purchased by him under his mortgage decree in respect of which he had been registered as proprietor in the collectorate. The respondent pleaded (1.) that the rights which the appellant had acquired under the purchase at the revenue sale were governed by the provisions of s. 54 of Act XI. The respondent pleaded (1.) that the rights which the appellant had acquired under the purchase at the revenue sale were governed by the provisions of s. 54 of Act XI. of 1859; (2.) that the property was sold subject to all incumbrances existing on March 28, 1900, the date of the default in payment of Government revenue, and that on that date the property in suit was subject to an incumbrance or debt of Rs.18,973.6.3 due on the mortgage to the respondent; (3.) that such property was purchased by the respondent for Rs.9200, leaving Rs.9773.6.3 still due on the mortgage decree, and that so long as the appellant did not redeem the mortgage by paying off the whole sum due under the said decree she could not bring a suit claiming possession of the property in suit; (4.) that as the proceedings, which terminated in the sale for arrears of revenue, were taken during the pendency of the execution case of the respondent, the doctrine of lis pendens applied, and the purchase by the appellant of the property in suit was, under the circumstances, wholly void. The Subordinate Judge dismissed the suit. He held that so far as the mortgagors were concerned the title in the properties purchased by the respondent vested in him on April 23, 1900, the date of confirmation of the sale made on March 19, 1900, and not before, and that on March 28, 1900, the title to the disputed property was with the mortgagors, and that they were bound to pay the Government revenue. The Subordinate Judge also observed that the revenue was due for shares in seventy-one villages, and only four villages out of the seventy-one were purchased by the respondent. The Subordinate Judge also observed that the revenue was due for shares in seventy-one villages, and only four villages out of the seventy-one were purchased by the respondent. Even if he were aware of the default, he could not be expected "to pay revenue for the entire estate when he had but an imperfected title in only a fraction therein." He also decided (1.) that what was sold at the revenue sale, so far as the four villages were concerned, was the right, title, and interest of the mortgagors as it existed at the time of the default or of the sale, and that on June 6, 1900, the date of the revenue sale, the mortgagors had no title in the four villages; (2.) that the revenue sale did not extinguish the rights of the respondent under the mortgage and under the auction purchase in execution thereof. The High Court held that the actual share of the mortgagors in the four villages was sold at the revenue sale, and that such share passed to the appellant thereunder, and it accordingly reversed the decree of the Subordinate Judge. The High Court further held that the respondent had, notwithstanding his purchase in execution, an equitable right to keep his mortgage alive and to treat it as a subsisting incumbrance on the properties purchased by him, and that the appellants purchase was subject thereto. It therefore decreed the appellants claim for possession, but on the terms of his first redeeming the respondents mortgage, the amount of which was ascertained as Rs.19,555.1.3 with interest and costs as in the decree stated. De Gruyther, K.C., and Lowndes, for the appellant, contended that at the date of the revenue sale to his predecessor in title there was no incumbrance upon the properties in suit within the meaning of s. 54 of Act XI. of 1859. At that date the respondent was by virtue of his purchase on March 19, 1900, the full proprietor of the four villages in suit, and all his interest therein was extinguished by the sale and was vested in the appellant. The respondents proprietary right dated from March 19, 1900, and not from April 23 then next, the date of the confirmation of the sale to 16 Law. Rep. 39 Ind. App. 228 ( 1911- 1912) Musammat Bhawani Kumar V. Mathura Prasad Singh 118 him. The respondents proprietary right dated from March 19, 1900, and not from April 23 then next, the date of the confirmation of the sale to 16 Law. Rep. 39 Ind. App. 228 ( 1911- 1912) Musammat Bhawani Kumar V. Mathura Prasad Singh 118 him. By force of the execution sale under the decree the title of the mortgagors with all their rights and liabilities in respect thereof passed to the respondent, who thereby became liable to pay the Government revenue in respect thereof and omitted so to do. His proprietary right accordingly passed to the appellant. He did not retain any equitable right after his purchase to treat his mortgage as a subsisting incumbrance thereon. Such a right may be recognized as between incumbrancers of the same property in order to settle conflicting claims of priority between them, but it cannot be invoked in order to defeat an adverse claim of title by a stranger under a sale by the revenue authorities. Reference was made to Act XI. of 1859, ss. 10, 13, 14, 28, 53 and 54, and Sched. A ; Civil Procedure Code, 1882, s. 316; Bhyrub Chunder Bundopadhya v. Soudamini Dabee (( 1876) I. L. R. 2 Calc. 141,145.) ; Chatraput Singh v. Grindra Chunder Roy (( 1880) I. L. R. 6 Calc. 389.); Sham Kumari v. Hameswar Singh (( 1904) L. R. 31 Ind. Ap. 176, 183, 185, 186.); Gokuldoss Gopaldoss v. Rambux Seochand (( 1884) L. R. 11 Ind. Ap. 126.) ; Mahomed Ibrahim Hossein Khan v. Ambika Pershad Singh (Ante, pp. 68. 81,); C. C. P., 1908, s. 65 ; Abdool Bari v. Ramdass Coondoo (( 1878) I. L. R. 4 Calc. 607.); Dagdu v. Punchamsing Gangaram (( 1892) I. L. R. 17 Bomb. 375.) ; Adhur Chunder Banerjee v. Aghore Nath Aroo (( 1898) 2 Calc. W. N. 589.); Transfer of Property Act (IV. of 1882), s. 89 ; Bibijan Bibi v. Sachi Bewah. (( 1904) I. L. R. 31 Calc. 863, 868) Even if the respondent had any such equitable right as that declared in his favour by the High Court, such equity could not extend to a right to repayment by the appellant of the whole amount of his mortgage, but must in any event be confined to repayment of the sum which the mortgaged properties had realized in execution. Ross, for the respondent, contended that only the mortgagors right, title, and interest in the four villages passed to the appellant by the revenue sale, and that title was subject to the respondents ecree against it. His own proprietary title did not accrue until April 23, 1900, the date of the confirmation of the sale to him. Until that date his title as purchaser was inchoate and not perfected, and he was not liable for the Government revenue, nor had he any title which could be sold in default of payment. His real title was until that date only that of a mortgagor whose incumbrance had not yet been converted into a complete proprietary title. He was therefore entitled, as the High Court held, to use it as a shield against any claim by a third party. His rights as mortgagor were alive and enforceable against the appellant at the date when the revenue became in arrear and had not then been extinguished or merged in his rights as purchaser. Consequently his mortgage rights were protected by s. 54 of Act XI. of 1859. Reference was made to s. 28 of that Act ; Sham Kumari v. Rameswar Singh (L. R. 31 Ind. Ap. 176, 186.); C. C. P., 1882, s. 316 ; and Gokuldoss Gopaldoss v. Rambux Seochand. (L. R. 11 Ind. Ap. 126.) De Gruyther, K.C., in reply. The judgment of their Lordships was delivered by LORD SHAW OF DUNFERMLINE. This is an appeal from a judgment and decree of the High Court of Calcutta, dated January 10, 1908, which set aside a decree of the Subordinate Judge of Gaya in Bengal, dated January 27, 1905. The suit was brought by the appellant as plaintiff to obtain possession of a certain share, amounting to 5 annas 1 ½ pies, in four villages in the Gaya district which are named in the plaint. The appellants rights are those of a purchaser who bought these properties at a revenue sale—that is to say, a sale for arrears of revenue. The appellant pleads that he has received, in his character of purchaser and as from the date of sale, a right which cannot be defeated by the respondent. The respondent was a mortgagee holding a security over the property for money lent thereon, and in respect of this loan the property was sold in execution to him. The appellant pleads that he has received, in his character of purchaser and as from the date of sale, a right which cannot be defeated by the respondent. The respondent was a mortgagee holding a security over the property for money lent thereon, and in respect of this loan the property was sold in execution to him. It is out of this conflict between the rights of the former, who may be called the revenue vendee, and the latter, who was mortgagee and 16 Law. Rep. 39 Ind. App. 228 ( 1911- 1912) Musammat Bhawani Kumar V. Mathura Prasad Singh 119 purchaser at the execution sale, that the suit has arisen. As their Lordships are unable to agree with the views which have been taken with regard to this case, either by the Subordinate Judge or by the High Court, it is necessary to mention certain dates which are material, and to test crucially what were the rights of parties at those dates. On August 9, 1886, a mortgage for Rs.5000 was granted in favour of the respondent over the shares aforesaid of four out of seventy-one villages. On May 31, 1899, the respondent obtained a decree on his mortgage bond, which was made absolute on the following December 19. He executed his decree, a sale in the ordinary course took place, and on March 19, 1900, which is the first important date in the case, the mortgaged property was sold, and it was purchased by himself, the mortgagee. Nine days thereafter, namely, on March 28, 1900, the March instalment of Government revenue on the seventy-one villages, amounting to Rs.1554, fell into arrear, and the whole, including the four which had just been purchased by the mortgagee, were notified for sale by the Collector. The situation of matters accordingly then was that, so far as the ownership of the property was concerned, a transaction of sale thereof in favour of the mortgagee as purchaser had in point of fact taken place, and this at a time when, by use of the ordinary information available as public facts, or upon inquiry with regard to the property purchased, it would have been found that the period of the falling due of revenue was almost at hand, and that proceedings preliminary to a sale in respect of arrears then left unpaid would inevitably be commenced. The mortgagee, however, did not pay the revenue which fell due at the end of March. Without doing so, he went forward with proceedings to get the sale to himself in execution of the mortgage confirmed. On April 23 he obtained a certificate confirming the sale> the certificate bearing that he " has been declared the purchaser at sale by public auction on the 19th March, 1900, . . . and that the said sale has been duly confirmed by this Court on the 23rd April, 1900." It was maintained in argument for the mortgagee that the true meaning of this was that the sale to him did not become a legal fact until April 23. In their Lordships opinion this is an understatement and a misstatement of the mortgagees rights. It is true that upon that date the sale was confirmed, but what was, as the certificate bears, confirmed was a sale " by public auction on the 19th March, 1900." There seems little reason to doubt that upon March 19 all the lands sold had been transferred to the mortgagee, and that if there had been any accretions to the property between that date and the date of confirmation, those accretions would have become the property of the purchaser. On the other hand, there seems no legal principle which would leave un-transferred to the mortgagee any obligations which arose during the same period. Furthermore, if the properties which were the subject of sale were liable to attachment for sums due from the lands as revenue and falling into arrear subsequent to the actual date of sale, namely, March 19, 1900, it was not within the legal right of the mortgagee on the one hand to claim as against the mortgagor that the ownership of the property had been transferred and at the same time to claim against the Government, or in respect of third parties unconnected with either mortgagor or mortgagee, that the mortgagor had not transferred the rights of ownership to the mortgagee, but himself remained in the position of owner. For the mortgagee to be permitted to say to the mortgagor that the ownership had been transferred, and to say to an outsider like the Collector of Revenue that the ownership had not been transferred, is a conclusion not supported by good sense, and, in the opinion of their Lordships, they are not forced to it by any canon or rule of law. If the date of sale be taken as the true and actual date in fact, which, in their Lordships opinion, was, as explained, March 19, 1900, it appears to their Lordships equally clear that what was in fact then 16 Law. Rep. 39 Ind. App. 228 ( 1911- 1912) Musammat Bhawani Kumar V. Mathura Prasad Singh 120 sold was the estate itself and nothing other or less than this which might be denominated by the terms " right, title, or interest" of the mortgagor only, or the like. And it would seem to follow as a necessary consequence that when the mortgagee thus became the purchaser and owner of the sub jects mortgaged, he was not in a position to maintain as against himself, or as against third parties unconnected with mortgage transactions upon the property, the position that his mortgage still remained an incumbrance thereon. In their Lordships opinion it is clearly unsafe to apply con siderations as to the rights of prior and succeeding mortgagees to questions like the present. for in the present case no question arises as between a first and succeeding mortgagee, and no right or duty emerges with regard to the avoidance of an inequitable priority alleged to arise inferentially by acquisition of the estate. On March 19, 1900, the crucial date in question, there were no interests of any kind to enter into account or consideration so as to impede the full and complete transfer of ownership of the estate as such. In these circumstances, when March 29, 1900, was reached, the property which fell then into arrear of revenue and became liable to subsequent sale was the property in fact and in law of no one but the purchaser, namely, the mortgagee. In these circumstances, when March 29, 1900, was reached, the property which fell then into arrear of revenue and became liable to subsequent sale was the property in fact and in law of no one but the purchaser, namely, the mortgagee. It is admitted,—the concession was logically unavoidable,—that if at the sale on March 19 the mortgagee himself had not purchased, but a stranger or outsider had, then such purchaser would have stood liable for the obligations accruing on the property and been responsible to Government for the payment of revenue and for the consequences which would ensue if the revenue fell into arrear. It seems somewhat difficult to discern why these consequences, which would be inevitable in the case of a stranger purchaser, should be avoided because the mortgagee was pur chaser himself. The above considerations seem substantially to dispose of the whole case and lead their Lordships to a conclusion the opposite of that reached by the High Court, who think that it was possible for a mortgagee to maintain the ownership of the property in himself with an incumbrance which he should use to defeat, or to use the term which the learned judges employ, as a " shield against," the rights of third parties. Upon this subject it is true that the language of s. 54 of the Act No. XI. of 1859—the Bengal statute as to sales of land for arrears of revenue—provides that when a share or shares of an estate may be sold u the purchaser shall acquire the share or shares subject to all encumbrances, and shall not a squire any rights which were not possessed by the previous owner or owners." This provision, however, appears to their Lordships (1.) to confirm the view that what is taken by a revenue vendee is nothing less nor more than what belonged to the former owner, and (2.) to negative the idea that it is open to an owner to protect himself as by " a shield " against the consequences of that full transfer by keeping incumbrances alive against the revenue vendee. These incumbrances had become extinct and lost in the mortgagees overriding right when he became the complete owner of the lands. These incumbrances had become extinct and lost in the mortgagees overriding right when he became the complete owner of the lands. To keep them alive as sought would introduce con fusion into the mechanism of transfer and an insecurity into the rights in real estate which are not warranted by the Act. Their Lordships will humbly advise His Majesty that the judgments of the Courts below be reversed, and that the plaintiff be declared entitled to the lands in suit in terms of the plaint; that possession be delivered to the appellant of the properties in dispute, the possession of the respondent being removed; that the name of the plaintiff be caused to be entered in the Land Registration Office accordingly, the name of the defendant being expunged and his illegal possession removed ; and that the cause be remitted to the High Court for the ascertainment of mesne profits for the period of dispossession up to the date of delivery of possession and for a decree therefor against the respondent. The respondent will pay the costs both here and in the Courts below.