JUDGMENT

Sulaiman, J. - The facts of this case may be briefly stated as follows:

2. The owner of certain houses and sites, including an open piece of ground in the form of a platform (chabutra), made a simple mortgage of them in favour of Ram Charan in 1906, and then again mortgaged the same properties to Behari in 1913. The prior mortgagee sued on his mortgage and, without impleading the second mortgagee, obtained a decree for sale. He put it in execution and purchased part of the properties himself, and the platform in question was purchased by the present Defendants Nos. 5, 6 and 7. The purchasers of the platform put up a construction in the form of a building which has been valued by the courts below at Rs. 200. I take it that it is not a structure of a temporary nature.

3. The present suit was instituted by the second mortgagee. He impleaded the prior mortgagee as well as the purchasers of the platform. These latter Defendants pleaded inter alia that the property could not be put up for sale-without Rs. 200 being paid as compensation.

4. The first court held that the construction on the platform had become part of the security and could be sold, and the Defendants could not claim the compensation. The lower appellate court has held that the position of the Defendants is that of a mortgagee in possession, and they can claim compensation u/s 63 of the Transfer of Property Act. In second appeal the learned Judges, who have referred the case to us, differed in their opinions. They both were inclined to the view that Section 63 does not apply to the facts of the case. MUKERJI, J., however, considered that the construction was an accession to the mortgaged property and could be sold as a part of the security without payment of its value. NIAMAT-ULLAH, J., thought that Section 70 was not applicable inasmuch as the Defendants were on the same footing as a third party who is not bound; the learned Judge applied an equitable principle analogous to that contained in Section 51 and held that the Defendants could remove the materials unless the Plaintiff chose "to compensate them.

5. It may also be noted that the two learned Judges were not agreed as to whether the auction purchasers should or should not be deemed to have constructive notice of the second mortgage. MUKERJI, J., thought that it was their duty to find out from the registration office what charges there were on the property before they made the purchase and that registration was notice to all subsequent transferees. NIAMAT-ULLAH, J., considered that an omission to search the registration office to find out incumbrances did not make the Defendants' action subsequent to the purchase otherwise than honest.

6. It cannot be disputed that if Section 70 were in terms applicable to the facts of the present case, no general equitable doctrine would override that statutory provision. But before I consider the phraseology of that Section it would be convenient to dispose of a few points which have been urged at the Bar. Before the Transfer of Property Act, the rule was generally accepted that a building erected on any person's land under a bona fide belief of title could either be removed or compensation for it claimed: Per Sir BARNES PEACOCK in Thakoor Chander Poramaniek v. Ramdhone Bhuttacharjee (1866) 6 W.R. 228. This general doctrine has been restated by Sen and Weir, JJ., in Kalyan Das v. Jan Bibi ILR (1928) All. 454

7. This doctrine in a restricted form is now embodied in Section 51 of the Transfer of Property Act, under which a transferee making an improvement and believing in good faith that he is absolutely entitled thereto, when evicted therefrom, has a right to claim the value of the improvement as compensation from the person causing his eviction. This Section does not in terms apply to the present case because, in view of the provisions of Section 2, Sub-section (d), chapter II in which the Section occurs is not applicable to a transfer in execution of a decree. It is also cl