Judgement

Appeal from a judgment and decree of the High Court (February 14, 1914) affirming a decree of the District Judge of North Arcot.

The suit was instituted by the appellant to redeem properties sold in 1887 under a mortgage decree. The first respondent was the son of the mortgagee, who was purchaser at the sale, and the other respondents were sub-purchasers.

The facts are stated in the judgment of their Lordships.

The District Judge dismissed the suit, and his decree was affirmed by the High Court. The learned judges (Miller and Tyabji JJ.) found that the appellant had been duly represented in the proceed ings, his guardian having made an application therein, and held that the appellant was bound by the sale. They were of opinion that though the decree was not strictly in accordance with the provisions of the Transfer of Property Act, 1882, ss. 88 and 89, it was effective against the parties, and that s. 99 of that Act did not apply. They further held that the sub-purchasers were bona fide transferees for consideration within s. 96 of the Trusts Act (II. of 1882), and wore not affected by any trust which might have arisen.

1917. Dec. 14. Sir William Garth, for the appellant. The attachment and the sale were made upon the decree of April, 1886, which was set aside against the appellant. He was not bound by the sale and is entitled to redeem. Further, neither of the decrees was in accordance with the provisions of the Transfer of Property Act, 1882, in that there was no decree giving the mortgagor six months to pay, as required by ss. 86 and 88, and no decree absolute for sale under s. 89. The decree and sale were consequently nullities and did not affect the appellants right to redeem. As no title whatever passed as against the appellant the sub-purchasers could gain no title under s. 96 of the Indian Trusts Act, 1882. [Reference was also made to Khiarajmal v. Daim (( 1904) L. R. 32 I. A. 23, 33, 35.) ; Rashid-un-nisa v. Muhammad Ismail Khan (( 1909) L. R, 36 I. A. 168.); Mallikarjunada v. Lingamurti Pantula (( 1902) 1. L. R. 25 M. 244.); Transfer of Property Act (IV. of 1882), ss. 58 (b), 60, 85, 99 ; and Code of Civil Procedure (XIV. of 1882), ss. 287, 288.]

Sir Erle Richards, K.C., and Kenworthy Brown, for the first respondent. The sale took place under the decree of November, 1886, which was substituted for that of April. It is not material that the attachment was at an earlier date, there being a decree for sale made by a Court having jurisdiction. If there was an irregularity no substantial injury was sustained, and under s. 311 of the Code of 1882 it did not vitiate the sale. All parties knew what was being sold ; the substance of the transaction must be looked at Sripat Singh v. Tagore. (( 1916) L. R. 44 1. A. 1.) So, too, any departure from the form required by the Transfer of Property Act is now immaterial, since the sale was under an order of a competent Court. Further, no fresh suit to set aside the sale lies. The minors were parties to the suit and under s. 244 of the Code of 1882 could only question the sale by application to the Court executing the decree Prosunno Coomar v. Kasi Das Sanyal. (( 1892) L. R. 19 I. A. 166.) Upon the grant of a certificate under s. 316 the title of the purchaser became absolute. [They were stopped.]

Sir William Garth, in reply, referred to Thakur Barmha v. Jiban Ram. (( 1913) L. R. 41 I. A. 38.)

Dec. 14. The judgment of their Lordships was delivered by

SIR JOHN EDGE. This is an appeal from a decree of the High Court at Madras dated February 17, 1914, which affirmed a decree dated February 9, 1910, of the District Judge of North Arcot, by which the suit was dismissed. The plaintiff is the appellant.

The suit was brought in the Court of the District Judge of North Arcot on November 16, 1907, to redeem three mortgages dated respectively December 12, 1876, January 7, 1879, and May 10, 1881. The mortgages were of ancestral property, and were made by the father of the plaintiff befor