JUDGMENT Sulaiman, J.
1. A preliminary object the hearing of the appeal has been raised on behalf of the plaintiffs-respondents. It is necessary to give the acts briefly in order to consider that objection.
2. The appeal arises out of a suit for sale on the basis of a mortgage dead of 1913 against the representatives of the mortgagors and subsequent mortgagees and transferees. The defendants were Kanhaiya Lal, a mortgagee of 1924, and Dr. Gopi Nath, who had purchased part of the property in execution of a simple money decree. Kanhaiya Lal and Gopi Nath both contested the suit in the Court below but the other defendants did not. The suit was decreed. An appeal was filed by Dr. Gopi Nath alone in this High Court against the whole decree, impleading Kanhaiya Lal and the other persons as pro forma respondents.
3. During the pendency of the appeal Kanhaiya Lal executed his decree obtained on the basis of his own mortgage, to which however neither the present plaintiffs-respondents nor Gopi Hath was a party, and Kanhaiya Lal himself purchased the property on the 20th April 1927. Subsequently he applied to the High Court for the transference of his name from the array of the respondents to that of the appellants. Notices were issued, and after hearing the parties a learned Judge of this Court passed an order dated the 12th June 1928 transferring the name of Kanhaiya Lal from the array of the respondents and made him a co-appellant. In the meantime the second mortgagee Mathura Prasad obtained a decree on the basis of his deed of 1921 against all the subsequent transferees and put the property to sale, and it was purchased by Roshan Lal on the 20th July 1929. Roshan Lal has been made a respondent to this appeal.
4. Gopi Nath has not pressed his appeal and his appeal has already been dismissed by us under a separate order.
5. The learned advocate for the plaintiffs-respondents first takes an objection that the order making Kanhaiya Lal a co-appellant was without jurisdiction and is not binding on them. This contention in our opinion cannot prevail. Under Order 1, Rule 10(2) the Court has ample jurisdiction to transfer a defendant to the array of the plaintiff. Reading that rule along with Section 107(2) there would be no doubt that the appellate Court would have a similar power. It is also quite clear under Order 41 Rule 4 as well as Rule 33 that the appellate Court would have power to pass a decree in favour of Kanhaiya Lal, who is a party to this appeal, in case he thinks it just and equitable.
6. There is also no force in the suggestion that a single Judge had no jurisdiction to make that order. Chap. 1, Rule 8(vii) brings such an application expressly within his jurisdiction. In any case the residuary section Section 14(b), would be applicable. The order was made after notice to the parties and has become final. We accordingly overrule this objection.
7. It is further suggested that the ground on which Kanhaiya Lal's name was transferred was the devolution of interest on him pendants lite by virtue of his purchase, and that inasmuch as in a subsequent suit Gopi Nath has been held not to be bound by that decree the basis of Kanhaiya Lal's application has been destroyed. This contention also has no force, because the sale in favour of Kanhaiya Lal still stands, and only a right of redemption could have been allowed to Gopi Nath as a result of the decree in his favour.
8. The next objection taken is that Kanhaiya Lal has no longer any locus standi to continue this appeal. This contention is based on the ground that the property has been purchased by Roshan Lal in execution of a mortgage decree which had priority over Kanhaiya Lal's mortgage and which the latter did not redeem. The learned advocate for Kanhaiya Lal tries to meet this objection on three grounds. It would be convenient to dispose of the last two grounds urged by him in the first instance. He suggests that it is open to his client to bring, a separate suit for setting aside the sale on the ground of fraud committed in the conduct of it, or in the proclamation of the sale. The decree was transferred to the Collector for execution and the rule framed by the Board of Revenue applies to the proceedings. That rule is similar to Order 21, Rule 92(3), and prohibits a separate suit on the ground of fraud in the proclamation or conduct of the sale. We therefore do not see any force in this suggestion. The second suggestion is that the confirmation of the sale by the revenue Court has not yet become final. Although the Commissioner on 17th January 1930 confirmed the sale, it is suggested that a revision would be filed before the Board of Revenue, and if necessary the matter would be taken up to their Lordships of the Privy Council. This is wholly problematic. In the next place it appears that Kanhaiya Lal himself never applied for the setting aside of the sale, and it was not he who appealed to the Commissioner. We therefore do not consider this a sufficient ground to meet the objection.
9. The third ground is that the whole of the property has not been sold by the revenue Court. The mortgage deed of 1913 is printed on p. 43 of the paper book and shows that it covered certain zamindari properties as well as a pucca chabutra (platform, masonry work.) At the trial when the plaintiffs' pleader Pandit Sital Prasad was questioned he made a statement (p. 14) that the two storeyed deorhi (antechamber) mentioned in the document was the chabutra, and that it was the same property which had been hypothecated. Sita Ram, one of the plaintiffs, in his cross-examination (p. 19, line 45) also admitted that "the chabutra of the house" had been hypothecated. We do not find that the statement of Pt. Parbhu Dayal (p. 17), pleader for the defendant, relied upon by the learned counsel for the respondents, contains any admission that this chabutra was not included in the mortgage deed of 1924 in favour of Kanhaiya Lal. In reply to the affidavit filed on behalf of the plaintiffs, Kanhaiya Lal's counsel has tendered before us a certified copy of the mortgage deed dated 14th June 1924, which clearly states that the property hypothecated was the mortgagor's right and interest in the zamindari property, as well as one three-storeyed residential house No. 4669 together with the site and rights appurtenant thereto. The boundaries of the house and the locality leave no doubt that it is the same house which was mortgaged in 1913. This house had been allotted to Shambhu Nath exclusively under a deed of partition dated 24th March 1898 and was mortgaged by him, The antechamber or the platform of his house must therefore be assumed to be a part of the property hypothecated, and some interest in it therefore must be deemed to have passed to Kanhaiya Lal. This question admittedly has not been decided by the revenue Court, nor can this property be sold by that Court. In this view of the matter Kanhaiya Lal has a locus standi to continue the appeal. We accordingly overrule the objections.
10. We now proceed to consider the appeal on its merits. Three main pleas have been urged before us on behalf of Kanhaiya Lal. The first is that the mortgage deed of 5th December 1913 in favour of the plaintiffs-respondents was invalid for want of a proper attestation; the second is that it hypothecated a mere chance of succession, which was illegal, and the third is that the deed is invalid on account of a fraud on registration.
11. The plea as to want of proper attestation cannot at all be sustained. The document purports to have been attested by more than one witness,, and one of the attesting witnesses, viz. Gopi Chand, has been produced by the mortgagees, and states that the execution took place in the presence of the attesting witnesses. Jagat Narain the scribe also corroborates his statement. We therefore see no defect in the attestation.
12. The plea of a transfer of a mere spec successionis is based on the fact that the property hypothecated originally belonged to Bal Kishen who died leaving a widow Mt. Muthra Dei and two daughters. These daughters had one son each, one of whom was Sambhu Nath, the mortgagor. Under a registered deed of partition dated 24th March 1898 the estate of Bal Kishen was divided among these people, and the zamindari property and the residential house were allotted to Shambhu Nath. It is to be noted that in the preamble to this document Shambhu Nath was described not only as Bal Kishan's daughter's son but also as his adopted son, and although it was admitted that the property had been purchased and acquired by Bal Kishen and had come into the possession of Mt. Muthra Dei, it was also admitted that as a matter of fact all the three parties to the document were the owners. They proceeded to divide the estate, and agreed that only that party to whom particular items were allotted should be the sole owner thereof and the others would have no concern with it. The khewat.of 1321F. has been produced, and shows that Shambhu Nath's name was recorded against the 20 biswas of the zamindari property in Mahrampur, and he was described as the adopted son of Bal Kishen.
13. The mortgage deed of 5th December 1913 was executed not only by Shambhu Nath and Shiam Lal, Bal Kishen's daughter's son, but also by Mt. Muthra Dei his widow. It recited that the hypothecated property detailed at the foot of the document had been allotted to Shambhu Nath under the deed of partition of 1898, and that the other executants had joined in the execution of the document for the satisfaction of the creditors in order to assure title, that Shambhu Nath had absolute power of hypothecation of the property, and that they would have no objection regarding this bond. No details of the properties hypothecated were given in the body of the document except a reference that the 10 biswas share in mauza Mahrampur was free, from previous incumbrance, but at the foot of it the zamindari property was specified, then there was a note by the scribe, and then at the bottom and on the margin was mentioned one pucca built chabutra situate in mohalla Panni Gali, Agra, bounded as set forth below.
followed by its four boundaries.
14. One of the mortgagees, Sobha Ram when in the witness-box, admitted that he was aware of the fact that the property had originally belonged to Bal Kishan and that it had devolved on Mt. Muthra Dei, his widow. He however stated that Shambhu Nath showed him the deed of partition, and he also took some legal advice and was assured that Shambhu Nath was full owner, as he represented himself to be. As regards the chabutra his statement was that he wanted the whole house to be mortgaged, but eventually it was agreed that only the chabutra of the house should be hypothecated which according to him was worth about Rs. 500. He stated that the property hypothecated was the same chabutra as in described in the amin's map as "deorhi do manzila" two-storeyed antechamber. The plaintiff's pleader on 11th August 1926 also made a similar statement that the two-storeyed deorhi shown in the amin's map was the same chabutra which had been hypothecated.
15. On the date when this mortgage deed was executed Shambhu Nath had undoubtedly a vested interest in this property. Whether we treat the deed of partition as the result of a family arrangement between the various members or as an alienation by the Hindu widow in favour of Shambhu Nath, there is no doubt that the effect of it was to vest the title to this property in Shambhu Nath at least during the lifetime of Mt. Muthra Dei. It is therefore quite clear this was not a transfer of a mere spes successionis. The learned advocate for the appellant has argued that, qua the interest which Shambhu Nath acquired after the death of Mt. Muthra Dei, the hypothecation was that of a mere chance of succession. If the mortgage deed be taken to be a transfer by all the three executants, though the recital was to the effect that only one of them was the owner, than undoubtedly it would be an alienation by a Hindu widow at least, and would not be void ab intitio but only voidable at the option of the future reversioner when the succession opens. On this hypothesis also the mortgage deed cannot be treated as a transfer of a mere chance of succession. Assuming however that the transfer cannot be treated as one by the widow at all, but that she joined in the deed merely to assure the mortgagees that she had no title, even then it seems to us that if the mortgagees acted on the representation made to them by Shambhu Nath that he was entitled to transfer the property absolutely, then if Shambhu Nath has since become full owner he and his representatives are bound by the deed. That there was a clear representation made in the document does not admit of any doubt. The only point urged on behalf of the appellant is that the mortgagees themselves were fully aware of the true state of affairs and that they were in no way misled. Reliance is placed on he case of Mulraj v. Indar Singh A.I.R. 1926 All. 120, where it was laid down that if the transferees themselves were cognizant of all the circumstances, and were in no way misled by the statement in the deed, it could not be a case of erroneous representation within the meaning of Section 48, T.P. Act. In the present case the facts known to the plaintiff were that the property had originally belonged to Bal Kishan and that it had been divided among his ladies after his death under a deed of partition of 1898. In that deed Shambhu Nath was described as the adopted son of Bal Kishan, and there was an admission on behalf of Mt. Muthra Dei that he had title to the property. In 1321 P., corresponding to 1913, Shambu Nath's name was entered as the proprietor of this property in the revenue papers, and he was described as the adopted son. One of the plaintiffs has sworn that he took some advice and was informed that Shambu Nath was the owner. All that may be said against him is that if he had been more careful and diligent and had made proper enquiries he might have come to know that only a Hindu widow's estate devolved upon Mt. Mathura Dei and that she had no power to transfer an absolute estate to Shambu Nath. The argument on behalf of the appellant is that all the necessary facts were within the knowledge of the plaintiffs, and they must be presumed to know the law, and therefore it must be assumed that they were aware of the fact that Shambu Nath was not the full owner. In our opinion there may be an erroneous representation both on questions of fact and on inferences to be drawn from documents of title. If the plaintiffs were as sure that under the deed of partition Shambu Nath was fully entitled to the estate as absolute owner, and they believed it to be true and acted upon it they are entitled to protection even though, if they had been more careful, they might have found out that was not a true representation.
16. The learned Subordinate Judge has come to the conclusion that Section 43, T.P. Act, applies to this case and that it is not open to Shambu Nath or his representatives to turn round and challenge the validity of the mortgage on the ground that he was not the owner of the property at that time. There is no doubt that after the death of the ladies in the family this property has devolved on Shambu Nath and he is the full owner. We would therefore overrule this objection.
17. The third point urged is that the deed is defective on the ground of a fraud that was perpetrated against the registration law. The contention is that the chabutra was a fictitious property which did not exist, and there was no intention on the part of the mortgagor to transfer it or on the part of the mortgagees to take it as security, and that its name was merely used for the purpose of deceiving the Sub-Registrar and inducing him to accept the deed of registration. This contention is raised on behalf of Kanhaiya Lal, who is a subsequent mortgagee of this property. If such a plea were raised by a person who is neither a party to the instrument nor his representative-in-interest there could be no doubt that it would be open to a Court to go into the question of thereat intention of the parties and ascertain whether this item was intended to be transferred. Section 92, Evidence Act, applies only to transactions inter partes and would not be a bar to such an enquiry.
18. The question before us is whether a representative-in-interest of the executant of the document can go behind the deed and prove an alleged understanding that a certain item of the property would not be transferred. With the exception of a few cases decided recently the cases referred to in argument are not directly in point. In those eases either the property itself did not exists and was a wholly fictitious item, or the mortgagor had no title to it and the parties never intended that the property should be transferred. For instance the case of Harendra Lal Roy v. Hari Dasi Debi A.I.R. 1914 P.C. 67 decided by their Lordships of the Privy Council was a case of a non-existent property. In the case of Bishwa Nath v. Chandra Narain Chowdhury A.I.R. 1921 P.C. 8 the mortgagor did not legally own the property purporting to be transferred, and there it was found that there was no real intention to transfer it. Similarly the case of Mukat Nath v. Shyam Sunder Lal A.I.R. 1929 All. 659 was a case not inter partes. Ram Lal v. Tamkin Bano [1919] 41 All. 385 was also a case where the property did not exist.
19. The case of Raghunath Tewari v. Sitaram Singh A.I.R. 1927 All. 797 decided by one of us was also a case where it was in the alternative found that the two mango trees said to have been situated in Fyzabad did not in fact exist and never belonged to the mortgagor. In the same way the case of Pahladi Lal v. Mt. Laraiti [1919] 41 All. 22 and Dirghal Singh v. Pahladi Lal [1920] 42 All. 176 may be distinguished.
20. But in the case of Durga Prasad Sahu v. Tameshar Prasad A.I.R. 1924 All. 897 it was held that if the parties found that by selling also a small bit of property which was not otherwise intended to be sold they would have the convenience of avoiding a (long) journey, it cannot be seen why the inclusion of that property should, be treated as an act done only to commit fraud on the law of registration. But examining the facts found by the learned Judges it is quite clear that they never came to the conclusion that there was no intention to transfer that item. On the other hand they distinctly found that the transaction was a bona fide one and that small bit of property had been sold. This case therefore is not a direct authority for the proposition that an enquiry into the intention of the parties is not permissible. In the case of Lachman Das v. Ram Prasad A.I.R. 1927 All. 422 one of the two learned Judges, viz. Ashworth, J., was of opinion that, in view of the provisions of Section 92, evidence to show the intention of the parties that ownership in a particular item would not pass could not be proved. The other learned Judge did not express himself clearly on that point in this case. But in a subsequent case of Kanhai Lal v. Mahadeo Prasad [1913] 18 I.C. 389.which corresponds to Ram Krishna v. Anand Krishna A.I.R. 1929 All. 578, the same view was elaborated, and it was laid down that Section 92, Evidence Act, prevented such an enquiry and that proviso (1) to that section did not entitle a party to the instrument to prove any such intention as would be at variance with the terms of the document. These are the views expressed by single Judges in two separate cases, and the same view to some extent may be said to have been expressed by the Bombay High Court in the case of Vishvanathbhat Annabhat Pujari v. Mallappa A.I.R. 1925 Bom. 514 if it be assumed that the learned Judges regarded a transfer by the guardian of a minor as one by the minor himself. On the other hand the contrary view has been expressed by the Madras High Court in the case of Goharakonda Narasinha Rao v. Gokarahonda Papunna I.L.R. 43 Mad.p. 476, although Section 92 or its proviso has not been expressly referred to therein.
21. It cannot be doubted that an allegation that one item of the properties covered by an instrument was not intended to be sold amounts to a variation in the terms of that document, and would prima facie come within the scope of the substantive portion of Section 92, but there is a proviso to that section which states that any fact may be proved which would invalidate any document such as fraud... illegality, etc. Thus the very section provides an exception in a case where a fact sought to be proved though varying the terms of the instrument, would invalidate the document itself. By way of illustration cases of fraud and illegality are specially mentioned. It seems to us that the section contemplates that no party to an instrument or his representative should be allowed to uphold the written contract and yet try to establish a contemporaneous oral agreement so as to vary the terms of it; but, it does not prevent even a party to such an instrument from establishing any fact which would make the document itself invalid, or establish any fraud, or show the transaction to be illegal, for the effect of such a plea is not to vary the terms of the document, but to nullify it. The appellant by trying to show that there was no intention to transfer a specific item of the property which was fraudulently included in the deed in order to deceive the Sub-Registrar is trying to establish a fact which, if accepted, would invalidate the document itself. There is also no reason to suppose why the word "fraud" used in this proviso should be confined to fraud practised on the person who is establishing the plea. It is wide enough to include a fraud in the registration law. Similarly, illegality may be due to various circumstances. Having regard to all these points we are of opinion that Section 92, coupled with proviso 1 does not debar Kanhaiya Lal from showing that the parties never intended to mortgage this particular item of property and that therefore the registration was invalid. Kanhaiya Lal is a defendant in the action and is trying to prove a fraud to which he was not a party personally.
22. That a fictitious inclusion of an item of property never intended to be sold can amount to fraud on registration admits of no doubt. The document has to be presented for registration before a Sub-Registrar within whose circle a property to which the document relates must be situated: Section 28, Registration Act. If the parties never intended that a certain item should be sold at all and transferred under the dead, the deed does not relate to it, and by concealing the fact from the Sub-Registrar they are committing a fraud on the registration law.
23. Although the case decided by their Lordships of the Privy Council in Bishwanath Prasad v. Chandra Narayan Chowdhury A.I.R. 1921 P.C. 8 is distinguishable, because there the deed was not actually registered, we would point out that the main basis of their Lordships' decision is quoted at p. 516 (of 48 Cal.) in the following words:
In coming to the conclusion that this appeal must be dismissed, their Lordships' judgment rests on the view that none of the parties ever intended that the one kauri share in mauza Kolhua should vest in Udit or should pass by the mortgage from him to the mortgagee.
24. We may also note that in several cases quoted above, although the dispute did not arise between the persons who were parties to the instrument or the property did not exist., the learned Judges emphasized the fact that there was no intention to transfer the property in question. We therefore think that it is open for us to enquire into this matter.
25. The first point to consider is whether this property existed In the mortgage deed it was described as a chabutra, which commonly means a raised platform, and in most cases is a platform which is uncovered. But in Fallon's dictionary it is defined as a raised bank or terrace open or covered, detached from the residence, a platform.
26. Chunna Lal Sorin, one of the witnesses for the defendants, in the examination-in-chief stated:
There is no chabutra in front of his house. But there is a covered piece of land, it might be called a chabutra or any other name might be given to it.
27. When the learned Subordinate Judge inspected the locality he noted that:
The alleged chabutra is a stone-paved platform about four square yards (four yards square) in area just in front of the entrance gate (door) of the house and attached to it. There is some structure over it.
28. According to the amin's map this is more like a verandah with walls on two sides and open on the other sides with three steps leading up to it. There is some structure on the second storey, but it is not clear whether it covers the whole of its roof or only projects over a part of it. The amin was not examined in order to explain his map. In the absence of any other definite evidence on the record we must take the inspection note of the Subordinate Judge as describing the structure correctly. The learned Subordinate Judge himself was not reluctant to describe it as a stone-paved platform. In these circumstances, we are of opinion that sitting on the appellate side we should not hold that the description of this property as a "chabutra" was such as was wholly inapplicable to the antechamber or verandah attached to this house. In this view of the matter we are unable to hold that the item included in the hypothecation bond was a non-existent property, that is to say property which never existed on the spot and which could therefore never have been intended to be hypothecated.
29. It is clear now that this item did exist and was owned by the mortgagor. The only question that remains for consideration is whether there is any sufficient circumstantial evidence which would induce us to take a contrary view and hold that there was really no intention to mortgage this" item.
30. There is no positive and direct evidence on behalf of the defendants on this point, but their learned advocate relies on the following circumstances. Compared with the bulk of the property hypothecated this item was almost insignificant and, according to Sobha Ram, plaintiff, it was not worth more than Rs. 500 to him. It is indeed doubtful whether it was even worth that amount. This piece of land is the main entrance to his residential house, which was not hypothecated, and it would have been clearly inconvenient to the mortgagor if this entrance should pass out of his possession. The zamindari property was situated at a considerable distance from this locality, and there is no reason to suppose that the mortgagee was anxious to take this verandah as a substantial security for his money. It is doubtful whether it would have been of any real utility to any purchaser who happened to take it in execution of the mortgagees decree. It is on these facts that we are asked to hold that there could not have been any intention to mortgage this property. No doubt the circumstances are highly suspicious, but the burden of establishing fraud undoubtedly lies on the party who pleads it. The presumption of law is in favour of the validity of the registration. There are two positions. Either the parties never intended to hypothecate this item, and it was agreed that this item should be fictitiously entered with a view to deceive the Sub-Registrar or they found that it was more convenient to get the deed registered at the headquarters, and such registration could not be effected without including an item of the property situated within the circle of the Sub-Registrar. In the latter case it is possible that they intended to mortgage the property, though the sole object was to get the registration effected. Both these hypotheses are possible. As the latter hypothesis cannot be excluded we as an appellate Court are reluctant to find in favour of the defendant and hold that fraud has been established. The parties might very well have intended this item to be hypothecated in order to confer jurisdiction on the Sub-Registrar, and we see no reason to presume in the absence of any direct evidence or stronger circumstantial evidence that fraud was perpetrated.
31. Under the mortgage deed the rate of interest fixed was As. 6-8 per mensem compoundable every year. The learned Subordinate Judge has allowed pendent lite interest at 6 per cent per annum simple. As the litigation did not last long this rate works out to be a higher rate. We must therefore give effect to the defendant's objection that pendent lite interest should only be allowed at the contractual rate. Future interest after the date fixed will be at 6 per cent per annum simple. We fix this day as the date for payment. With the modification in the rate noted above, the appeal is dismissed with costs.