JUDGMENT <NAME>, J.

1. In this case the plaintiff, as purchaser of the equity of redemption, sued to redeem and recover possession of certain thikans originally mortgaged with possession by the plaintiff's vendors to the ancestors of defendants 2-6, who, on 12th April, 1893, had by Exhibit 55 transferred their rights to defendants 7--10, for Rs. 1,275.

2. The defendants contended that plaintiff could not recover possession without redeeming three bonds (Exhibits 57, 58 and 59) as well as the original mortgage of 1837 (Exhibit 56). The <ORG> of first instance and the lower <ORG> held that this contention was correct, but while the <ORG> first mentioned limited the interest payable by applying the rule of damdupat the lower <ORG> decided that full interest on the three bonds was payable by plaintiff at the rates in those bonds specified. Exhibit 55, the registered instrument whereby defendants 2-6 transferred their rights to defendants 7--10, recited that the property in question was held in mortgage from one <NAME> under the mortgage bond of 1837 (Exhibit 56), and added that <NAME>'s direct heirs had received more moneys from the original mortgagee and passed separate documents on stamped paper, and that if accounts were taken of the whole the amount would be very large, but that Ra, 1,275 had been accepted by the original mortgagees from defendants 7--10 and that in consideration of that sum all the mortgaged rights were accordingly sold to defendants 7--10.

3. The original mortgage deed of 1837 (Exhibit 56) was for Ra. 645-12-3, and possession was given thereunder to tine mortgagees, profits being taken by them in lieu of interest. This mortgage deed (Exhibit 56) is stated by the lower <ORG> to be admitted by all parties as the mortgage referred to in the document (Exhibit 55) which transferred the original mortagee's rights to defendants 7--10.

4. The later documents (Exhibits 57, 58 and 59) were not specifically described in the defendant's assignment. They were not handed over by the original mortgagees to the defendants 7--10 either at date of Exhibit, 55 or at any time before suit; nor were they specifically described in the written statements put in for the defence. The written statement of defendant 2 refers only to a further charge on the mortgaged property made by the son of the original mortgagor, while defendants 7--10 in their joint written statement alleged that the original mortgagor's sons and daughters had passed other money bonds to <NAME>, the original mortgagee. These s Exhibits 57 to 59 were not produced by defendants 7--10, but by the defendants 2-6.

5. Exhibit 57 purports to have been executed in March, 1864, by one <NAME>, son of the original mortgagor, for Rs. 57-8-0. It is unregistered. It recites the fact that the mortgage of 1837 for Rs. 645-12-3 (Exhibit 56) had been executed by the obligor's father and purports to confirm it by an undertaking to pay the amount thereof together with the sum of Rs. 57-8 0, which is stated to have been advanced on the same security, and with interest on the Rs. 57-8-0 at 12 per cent. per annum. Exhibit 58 purports to have been executed by the said <NAME> for Rs. 95 "advanced on the same security " in February, 1865, contains recitals and undertakings similar to those in Exhibit 57 with regard to the mortgage of 1887, and adds, "I will not interfere with the land for twenty-five years."

6. Exhibit 59 purports to have been executed in March, 1866, by one <NAME>, the daughter-in-law of the original mortgagor, for Rs. 90 as a charge on the same land, bearing interest at Rs. 18 per cent, and to refer to and confirm Exhibits 56 and 58.

7. All these three documents purporting to be more than thirty years old, the question arose whether they were admissible as produced from proper custody.

8. For the appellants it is contended that these Exhibits 57 to 59 required more proof than had been adduced, and could not be accepted merely on the ground of their alleged antiquity and of their production by defendants 2--6; that Section 90 of the Indian Evidence Act, 1872, was therefore inapplicable to them, and that under the ruling in <CITATION> (1880) 6 Cal. 209 Exhibit 59 at least required proof of execution by the person <NAME>, whose mark alone purports to have been affixed thereto, and further that all the three documents, as purporting to extend the interests created by Exhibit 56, were compulsorily registrable and inadmissible for want of registration, and in any case were ineffectual by reason of Section 50 of the Registration Act, 1877, as against the registered deed under which the plaintiff claims, and that plaintiff as a bona Me purchaser without notice could not be affected thereby.

9. In support of the first of these contentions, viz., that the documents were not sufficiently proved by evidence of production from proper custody, the rulings in <NAME> v. <NAME> (1872) 18 Cal. W.R. 435 and <NAME> v. <NAME> (1873) 21 Cal. W.R. 20 were cited for the appellants. The first of these decisions was passed only a few days after the present Evidence Act of 1872 came into force, makes no reference to that enactment and refers to the rule relating to ancient documents as one of English Law to be applied subject to conditions and precautions which are suggested in English text books, such as Pitt Taylor and <NAME>, and which have not boon embodied in Section 90 of the modern Indian Evidence Act . The later ruling practically accepts as Sufficient the test required by Section 90 of the Indian Evidence Act, which, however, is, not there cited.

10. Now, the section itself admits a presumption of the genuineness of documents purporting to be thirty years old, if produced from custody proved to have had a legitimate origin or an origin the legitimacy of which the circumstances of the case render probable (vide explanation 2 to Section 90 ). It is not necessary that the document should be found in the best and most proper place of deposit Bishop of Meath v. Marquis of <NAME> (1836) 3 <NAME>. N.C. 183 p.p. 201, 202, and the section read with the explanation attached thereto seems be insist only on a satisfactory account of the origin of the custody and not on the history of its continuance. Possibly the origin of the custody was alone regarded as material, because it is intelligible that ancient documents may be overlooked and left undisturbed notwithstanding a transfer of old, or creation of new, interests. In the present instance, it is true, Exhibits 57,58 and 59 ware not mere links in the chain of title, but the basis of rights alleged to have been transferred, and it might have been expected that they would have been handed over at the transfer of the mortgagee's rights. But the circumstance that they were, not so handed over affects rather the history of the subsequent transactions than the probabilities as to the origin of the custody. The question of proper custody is no doubt one which would in England be left to the Judge and not be the jury: <NAME> on Evidence, Section 22 . But this does not prevent the question from being one entirely dependent upon findings of fact, for, as stated by <NAME> (p. 37) "the question of admissibility must be exclusively decided by the Judge, however complicated the circumstances may be, and though it may be necessary to weigh the conflicting testimony of numerous witnesses in order to arrive at a just conclusion." Whether it were credible or not that the documents in question were originally left in the custody of the mortgagee in whose favour they were executed appears to me to be as much a question of fact as the question whether they were executed by the alleged obligors or not and even if it were a question of law, it would, I think, be impossible to hold that the origin of the mortgagees' custody was not both legitimate and probable. The further question whether the alleged subsequent history of those documents was sufficient to throw suspicion on their authenticity and rebut any presumption arising under Section 90 was, I think, undoubtedly one of fact with which it is impossible to interfere on second appeal regard being had to the decision of <ORG> in <NAME> v. <NAME> (1890) 18 Cal. 23. In these circumstances, I think, there is no alternative but to accept the finding of the lower <ORG> that these Exhibits 57 to 59 were produced from custody which is proper within the meaning of Section 90 of the Evidence Act, and that they were duly executed by the persons by whom they purport to have been executed. The objection that Exhibit 59 bears only the mark of the alleged obligor appears to have no weight in face of the concluding words of the section, for it is not contended that the document does not purport to have been executed by the person whose mark it purports to bear, and this, in the case of a document falling under Section 90 , is sufficient, although had it been necessary to prove execution, it would have been necessary to prove the identity of the executing party.

11. The question whether <NAME>, who purports to have executed Exhibit 59, was competent to create a charge upon the property to be affected thereby, does not appear to have been specifically raised in the memorandum of this appeal or in the lower <ORG> or even in <ORG> instance, and should not 1 think, be entertained now.

12. Next it is contended that none of the documents in question are admissible, as they were all compulsorily registrable.

13. So far as Exhibit 57 is concerned this contention must necessarily fail, inasmuch as it purports to have been executed in March, 1864, and the Registration Act XVI of 1864 did not come into operation in this Presidency (vide Section 71 ) until 1st January, 1865.

14. The other two documents, Exhibits 58 and 59, being respectively dated February, 1865, and March, 1866, both come within the operation of Act XVI of 1864 and, it is urged, are both compulsorily registrable under Section 13 thereof, as though the consideration appearing on the face of the documents is in each case under Rs. 100, each of them undertakes liability for the previous deed and provides for the redemption of that mortgage for Rs. 645. In this connection appellants rely on the unpublished case of <CITATION> (1883) P.J. p. 34 which distinguishes the case of an agreement undertaking a liability for a mortgage not otherwise binding, from the case of a mere recital or declaration of a fact such as in <NAME> et al. v. <NAME> (1881) 5 Bom. 232 wag held not to render registration necessary. The case of <NAME> v. <NAME> (1883) P.J. p. 95 was further relied on as showing that Exhibit 58, which postpones the date at which the original mortgage of 1837 should be redeemable, limited the equity of redemption under that mortgage, and therefore required to be registered, and being unregistered could not affect the equity of redemption. As to the first of these cases <NAME> v. <NAME>, it is to be noted that the mortgages therein related to lands that were wakf and were not effected for musjid repairs, so that "it was admitted, under these circumstances, the mortgages could not be supported against the religious endowments." And it was for this reason that it was sought to charge the sons of the original mortgagor by the agreement entered into by them subsequently in an unregistered writing to pay off the mortgages, and it was also endeavoured to use that agreement as an estoppel which would prevent the plaintiffs from pleading that they were not bound by the first mortgage. It was because the plaintiffs were not, ex concessis, bound by the first mortgage, as it could not be supported against the religious endowment, that it was necessary to prove the agreement against them, and for this purpose it was inadmissible in evidence inasmuch as it was not registered. But in the present instance there is no plea that the plaintiff is not bound by the first mortgage. He sues to redeem it and has never disputed liability to pay it off. The subsequent documents, Exhibits 58 and 59, were not required as evidence to prove that liability and are not inadmissible to establish the liability for the sums respectively secured by them, viz., Rs. 95 and Rs. 90. They do not, therefore impose or create, or in any way affect, the undisputed liability for the mortgage of 1837 which arises aliunde, and are a mere declaration of the fact of a liability which the plaintiff has throughout made no attempt to dispute. In the case of <NAME> v. <NAME> (1883) P.J. p. 95 cited above, the liability of the <NAME> for their father's mortgage was unquestioned, but their father's agreement to pay o off a subsequent money bond for Rs. 175 before paying off the mortgage was held inadmissible as an unregistered document. And in holding it inadmissible the case of <NAME> Govind v. <NAME> (1884) P.J. p. 254 was cited. A reference to that last cited case shows that the reason for holding such subsequent document inadmissible was that it had the effect of limiting 2 the interest of the mortgagor to the extent of Rs. 100, and therefore required to be registered. This ground cannot apply to Exhibits 58 and 59, all of which limit the mortgagor's interest to an extent less than Rs. 100. These cases appear, therefore, inapplicable for the purpose of showing that these documents were compulsorily registrable. They did not operate to impose liability for the mortgage of 1837, which liability plaintiff admits, while he disputes the existence of the agreements which Exhibits 58 and 59 purport to evidence. And they do not limit the rights of redemption under the mortgage of 1837 to the extent of Rs. 100. It is possible that under the recent rulings in <NAME> v. <NAME> (1902) A.C. 24 and <NAME> v. <NAME> (1902) 2 Ch. 479 the agreement in Exhibit 59 to postpone the time for redemption of the mortgage of 1837 for twenty-five years might have been regarded as void on the ground that it clogged the equity of redemption. But no such point has been taken and the time has long passed at which it might have been taken. The documents Exhibits 57, 58 and 59 all purport to be fresh charges on the same security, and are therefore otherwise free from such objection.

15. The next point taken for appellant is that the provisions of Section 50 of the Registration Act, 1877, apply to these documents Exhibits 57, 58 and 59, viz., that every registered document of the kind mentioned in Clauses (a), (b), (c) and (d) of Section 17 , and therefore Exhibit 56 which falls within that description, shall take effect as regards the property comprised therein, against every unregistered document relating to the same property, and therefore as against such documents as Exhibits 57, 58 and 59. To this contention respondents objected that 10 had not been raised in the <ORG> below or in the memorandum of appeal in this <ORG>. The objection is met by appellant citing the case of <NAME> v. <NAME> (1892) 17 <NAME>. 100 and <NAME> v. <NAME> (1892) 17 <NAME>. 303 as the new point is purely a question of law, arising on the findings of the <ORG> below and not affected by any facts outside these findings. The point was, therefore, allowed to be fully argued. And the wording of the section is so clear that the respondents were unable seriously to contend that its provisions would not be fatal to their attempt to charge the property with liability in respect of the unregistered documents (Exhibits 57, 58 and 59) apart from the operation of the equitable doctrine of notice. This grave ground of objection, indeed forms the really important matter of contest in this appeal. The appellant contends that he is a purchaser bona fide without notice, and on its being objected that Exhibit 55 is a registered document containing a recital of incumbrances, it is urged for appellant that registration is at most constructive notice, and that the doctrine of constructive notice cannot be so extended as to cover unregistered documents under which the holders of registered documents derive title, and <NAME> v. <NAME> (1896) 22 <NAME>. 213 is cited, as authority. In that case the plaintiffs were out of possession and had purchased under a registered deed from a vendor whose title deed was unregistered, and it was held that plaintiff and his grantors were mere strangers be the land, unless they could rely on the unregistered conveyance which could take no effect upon the property when brought into competition with the registered conveyance to the defendant. And when it was argued that the defendant had notice of the unregistered document through the registered document, the <ORG> held that it would be pushing the doctrine of constructive notice beyond all bounds to held that it is notice of the unregistered documents under which the holders derived their title. If, then, in this case the question rests merely on the competition between registered and unregistered documents, the ruling in <NAME> v. <NAME> (1896) 22 <NAME>. 213 would be decisive against the defendants. Appellant relied also on <CITATION> (1876) 2 All. 851 a Full Bench ruling of the Allahabad High <ORG>, where the plaintiff sued unsuccessful to recover money by sale of properties hypothecated on unregistered bonds against a defendant to whom the same property had been transferred by registered deed. The case of <CITATION> (1885) 1 Cal. 661 also cited for appellant, is essentially to the same effect. <NAME> v. <NAME> (1888) 13 <NAME>. 229 <NAME> v. <NAME> (1881) 5 <NAME>. 442 and <NAME> v. <NAME>bhamabai (1882) 6 <NAME>. 490 were also cited, but appear irrelevant. The appellant further cites the case of <NAME> v. <NAME> (1892) 16 Mad. 301 and the case there quoted of <NAME> v. <NAME> (1881) 17 Ch. D. 353, 2 pp. 357-358 as authority for the position that constructive notice of a deed is constructive notice of its contents, provided the deed is a deed relating to the title and forming part of the chain of title. The case of <NAME> v. <NAME> (1881) 17 Ch. D. 353, 2 pp. 357-358 however, on a careful perusal appears to me in no way to support the appellant's argument. For that case relates to the duty of a purchaser or lessee to look into the chain of his vendor's or lessor's title, and with special reference to the cases of <NAME> v. <NAME> (1841) 1 Here 43 and <NAME> v. <NAME> (1870) L.R. 9 Eq. 678 appears to exonerate the purchaser or lessee from the duty of enquiry as to a document of which he has contructive notice, only in cases where he might get a complete chain of title without any notice of that document where he would be justified in resting assured that it could not affect him. But <NAME>, <NAME>, was careful to say, "that line of cases has no bearing at all on a case where you know the deed does affect the land." For reasons to be stated below, however, the cases of <CITATION> (1892) 16 Mad. 301 and <NAME> v. <NAME> (1881) 17 Ch. D. 353, 2 pp. 357-358 appear to me lay down no principle on which the plaintiff in this case could be relieved from the duty of enquiry. The arguments for the appellant throughout assume that the plaintiff was affected only by the constructive notice which might have been afforded by Exhibit 55, the registered documents under which the defendants claimed. Thus they rely upon <CITATION> (1881) 7 Cal. 199 which is a case in which the <ORG> held that the circumstances wore not sufficient to fix the plaintiff with constructive notice or to put him upon enquiry. And the case is spoken of as falling within the language of <ORG> in <NAME> v. <NAME> (1872) 11 Beng. L.R. 53 : 18 Cal. W.R. 166 wherein the principle appropriate rested upon the equity that "where, one man allows another to hold himself out as the owner of an estate, and a third person purchases it, for value, from the apparent owner, in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title," unless he can show direct notice, constructive notice or circumstances putting the purchaser on an enquiry. It is clear that such a case can have no bearing in the present instance. In the case cited there was no actual notice, and the vendors had been placed in such a position 2 as to be the apparent owners, and it was with reference to those circumstances that the Calcutta High <ORG> held that unless there is wilful or fraudulent turning away from enquiry, the doctrine of constructive notice would not apply. The case Re Bright's Trusts (1856) 21 Beav. 430 was also referred to. That relates to a charge without notice on a chose in action, and it appears that except so far as the actual notice was given, subsequent incumbrancers could have no knowledge whatever of the existence of any prior charge. In that case the charge was one on a fund in the hands of trustees, and notice was given only of one of two charges created in the same deed, that for the life policy being anmentioned, and that the express notice given implied that no other charge was alleged. It is clear that the principles of that case apply only to the duty of enquiry arising in cases where, apart from constructive notice, there is nothing to put the purchaser on enquiry. In the present instance the appellant has put his case as if there were nothing but the constructive notice furnished by the registered deed of assignment to the defendants 7-10 (Exhibit 55), and they rely, therefore on the inadequacy of such notice as an all-sufficient protection. For this purpose they lay stress on the cases already cited of <NAME> v. <NAME> (1896) 22 <NAME>. 213 and <NAME> v. <NAME> (1892) 16 Mad. 301 and on the ruling in Inderdawan Pershad v. Gobind Lall Chowdhry (1896) 23 Cal. 790 where approving <CITATION> . it was held, notwithstanding <NAME>bay decisions, that mere registration is not notice within the meaning of Section 81 of the Transfer of Property Act such as to put on a purchaser responsibility for abstention from enquiry. And if the present case rested only upon the question whether Exhibit 55 was constructive notice of Exhibits 57, 58 and 59, I think that the authorities cited on behalf of appellant would be ap(1891) 15 Mad. 268posite on the point whether the plaintiff was bound by the incidental reference to those documents. But the case does not rest there. For, the defendants were admittedly in possession. And it has been held in a long series of cases in this <ORG> that possession is notice, sea especially <NAME> v. <NAME> (1880) 6 <NAME>. 168, <NAME> v. <NAME> (1883) 9 <NAME>. 427, <NAME> v. <NAME> (1879) 4 <NAME>. 129, <NAME> v. <NAME> (1882) 6 <NAME>. 193 at p. 201, <NAME> v. <NAME> (1872) 9 <ORG>, <NAME> v. <NAME> (1867) 4 <NAME>. H.C. Rep. 69 (a.c.), <NAME> v. <NAME> (1869) 6 <ORG> at p. 62, <NAME> v. <NAME> (1872) 9 <NAME>. H.C. Rep. 151 f.n., <NAME> v. <NAME> Ibid p. 147.

16. The case of <CITATION> (1888) 12 Bom. 569, it may be noted, is not really opposed 'to this principle, for the ratio decidendi there proceeded upon the fact that the plaintiff, the prior unregistered mortgagee, was not in actual possession and that his mortgagor was, and that person subsequently dealing with the property had no reason to suppose that he was in possession otherwise than as owner. But in the present instance the mortgagee was in possession and apparently had been continuously from 1837. And therefore the plaintiff had every reason to suppose that there was an incumbrance on the property and does not profess to have supposed that there was not "Possession," according to the <ORG> ruling in <NAME> v. <NAME> (1880) 6 Bom. 168 has been deemed by Hindu and Mahomedan laws, as interpreted in this Presidency, to amount to notice of such title as the person in possession may have and any other person who bakes a mortgage or other charge upon, or purchases, immoveable property, without ascertaining the nature of the claim of him in possession, does so at his own risk. This is so in England also. See <NAME> v. <NAME> (1811) 17 Vesey 433 and the other cases in which its authority has been recognised, collected in <ORG> (page 1052, edition 11th) and 2 White and Tad or a Loading Cases in Equity, page 61 et seq." This principle is quite distinct from that which was adopted in the same case, on the authority of American cases, as to registration being in itself notice to subsequent purchasers and mortgagees, and appears from note 2 on page 188 of the <ORG> judgment so be based on the remark of <NAME>, V.C. in <NAME> v. <NAME> (1841) 1 Here 43 vide p. 60 that "possession is prima facie evidence of a seisin in fee." In the passage preceding that remark the Vice-Chancellor stated as a proposition which he did not dispute, "that if a person purchases an estate which he knows to be in the occupation of another than the vendor, he is bound by all the equities which the person in such occupation may have in the land." <NAME> v. <NAME> (1811) 17 Vesey 433 then spoken of "as an extreme case," has, as observed in <NAME> v. <NAME> (1869) Bom. H.C. Rep. 59 at p. 62, been repeatedly acted upon. The Full bench case of <NAME> v. <NAME> (1880) 6 Bom. 168 was followed by Sir <NAME> and Mr. Justice <NAME> in <NAME> v. <NAME> (1883) 9 Bom. 427, where it was said (pages 428-9), "assuming that the defendant was in possession when the mortgage deed was executed be plaintiff or that plaintiff had otherwise notice of defendant's purchase, it is dear, that the latter could derive no advantage from the registration of his mortgage." This was with special reference to Section 50 of the Registration Act of 1877 and does not rest on the doctrine of constructive notice by registration. <NAME> v. <NAME> (1882) 6 Bom. 515, dealing with Section 50 of Act XX of 1866, was cited as to similar effect. <NAME> v. <NAME> was followed in <NAME> v. <NAME> (1885) 10 Bom. 105, <NAME> v. <NAME> (1882) 6 Bom. 193 is another <ORG> ruling laying down that possession is notice to all subsequent intending mortgagees or purchasers of the title of the party in possession. Of the earlier oases--prior to the Registration Act of 1877-<NAME> v. <NAME> (1872) 9 BOm. H.C. 121 was apparently approved in <NAME> v. <NAME> (1867) 4 Bom. 89 at p. 92, though distinguished from a case where the prior unregistered document being compulsorily registrable was not admissible in evidence at all. In all the Bombay decisions cited above, the reason for withholding preference from the subsequent registered purchase was based, not on the doctrine that registration was constructive notice, for the prior alienation was in most of them unregistered, but upon the long established and undisputed principle that a purchaser is always bound by all the equities of a third party in possession, because possession presupposes bible and therefore is notice which ought to puts a purchaser on enquiry. In all the cases relied on by appellant as to the inadequacy of constructive notice of documents mentioned in a registered deed, this element of the prior purchaser being in possession was wanting, and in such cases mere registration, as held in Inderdawan Pershad v. Gobind Lal (1896) 23 Cal. 790 and Shan 2 <CITATION> . (1891) 15 Mad. 268, was therefore deemed insufficient. The principle on which possession is recognised as an element for consideration in cases of competing purchasers, appears to be quite independent of the now discredited doctrine as to the necessity of possession to the validity of a sale under Hindu and Mahomedan laws. For that principle rests on the English equitable doctrine of notice. It seems hardly necessary to observe that in <NAME> v. <NAME> (1893) 18 Bom. 332 possession failed to give priority because it was obtained with constructive notice of a prior registered incumbrance, so that the decision in no way questions the effect to be given to possession under a deed prior to that of a rival purchaser. The operation of registration as constructive notice has been questioned by the other High Courts. <CITATION> (1892) 16 Mad. 148 and the cases there cited of Nani Bibee v. <NAME> and Ors. (1884) 10 Cal. 1073 show that the doctrine of notice by possession has been regarded as standing on another and a sounder footing. <ORG> regards possession as "very cogent evidence of notice" (<NAME> case), and <ORG> in <CITATION> (1886) 8 All. 540 refused possession to a mortgagee under a registered possessory mortgage, as against a prior unregistered mortgage accompanied with possession, notwithstanding the provisions of Section 50 of the Registration Act, 1877. This ruling has been more recently referred to in the Allahabad case of <NAME> v. <NAME> (1896) 19 All. 145, which cites with apparent approval the Bombay case of <NAME> v. <NAME> (1885) 10 Bom. 105, which is based on <NAME> v. <NAME> (1882) 6 Bom. 515 and <CITATION> (1886) 13 Cal. 667, which accepts the principle laid down in <NAME> v. <NAME> (1885) 11 Cal. 667, <NAME> v. <NAME> (1880) 6 Cal. 534, and by <ORG> in <NAME> v. <NAME> (1879) 4 Bom. 126.

17. It is true that the notice referred to in these cases does not in each instance appear to have consisted solely in possession. But the general consensus of opinion of all the <ORG>, following English decisions, appears to be that possession is at least very cogent evidence of notice which a purchaser cannot with safety disregard, and that Section 50 of the Registration Act, 1877, does not do away with the effect of notice, in favour of the registration to which ceteris paribus it gives preference. It appears to be the result of the Bombay decisions that no purchaser can protect himself merely. by registering his document of title, against the title of a person in possession of the subject-matter, and if he ignores that possession and fails to make inquiry into its nature and origin, he will be affected by all the equities which the person in possession is proved to have. This being the case, I think that when the plaintiff found that the property of which he bought the equity was in the possession of the defendants, it was for him to enquire into the nature of his vendor's title and the extent of the liabilities to which he was subject. It was contended for respondents that he had actual notice in the shape of direct information. That contention was not substantiated. But he had full knowledge that there was some incumbrance apart from the registered assignment (Exhibit 55), to defendants 7-10. He contends that at most he had constructive notice through that registered document, and that it was not explicit or binding as to Exhibits 57, 58 and 59. But the question is whether he can shield himself under that document as affording him misleading information with regard to his vendor's title. I do not think he can. For the document (Exhibit 55), though not explicit, does mention the further charges and could not relieve the plaintiff from further inquiry. Moreover, it was not the basis of his vendor's title and if there had been no such document in existence, and if defendants 2-6 had never assigned their mortgage rights, the plaintiff rinding them in possession would have been no less bound to inquire as to the title of his vendor and the manifest incumbrance on it. And this duty would not have been fulfilled by his assuming, on the discovery of one of the liabilities attaching to the property, that there were No. others to support the claim of the person in possession. That is to say, he was not entitled, merely because he may have known of the mortgage of 1837, to abstain from all further inquiry and profess that he could not be bound by any other title deed, however genuine, in favour of the person in possession. The recent case of <NAME> v. <NAME> (1902) 1 Ch. 428, 433 seems to make this clear in the passage which says: "If a purchaser or mortgagee has notice that the vendor is not in possession of the property, he must make inquiries of the person in possession, of the tenant who is in possession, and find out from' him what Ms rights are, and, if he does not choose to do that, then whatever title he acquires as purchaser or mortgagee will be subject to the title or right of the tenant in possession." And it seems to me that if the Exhibits 57, 58 and 59 are genuine, as the lower <ORG> has found as a fact they are, the plaintiff is no more exonerated in respect of those documents than he would have been if they had been the only liabilities justifying the possession of the defendants. In the face of Exhibit 55 it would be difficult (if the plaintiff relied on that document as excusing him from further inquiry) to say that the plaintiff had no reason, because he had notice of Exhibit 55, to make any further inquiry. It showed at least that a charge very largely in excess of Rs. 645 was alleged in favour of those in possession, and was, therefore, no excuse for stopping all the inquiry which, had no such document existed, the plaintiff would have been bound to make. The case has been obscured, I think, by arguments as to constructive notice given by Exhibit 55. But it was defendants' possession which gave the real ground for inquiry, and Exhibit 55 would not entitle plaintiff to dispense with any inquiry which he would have been bound to make if that document had never been passed. The case, therefore, seems a very simple one when reduced to its ultimate issues. The lower <ORG> has found that "on the 3rd December, 1897, plaintiff purchased the equity of redemption from defendant 1 for Rs. 50," and "that the defendant 1 had "mortgaged with possession." It was then for the plaintiff to find out what the state of the title was, and if he did not do so, he would be bound by all the rights proved in favour of the defendants in possession. The lower <ORG> has found as a fact what those rights were, holding Exhibits 57, 58 and 59 genuine. That finding on second appeal is, I think, binding, and though the non-delivery to, and non-production by, the assignees of those exhibits may be ground for suspicion, the finding cannot be interfered with, and it is conceivable that the defendants 2-6 being descendants of the original mortgagees may not at first have been able to lay their hands on those documents, which were of minor importance, and were possibly disregarded at date of the assignment when no question of redemption had been mooted. Had the plaintiff insisted on information being furnished, they might possibly have been brought forward earlier. But there is no allegation that he ever made inquiry and was refused information as to their existence. They have been found genuine. And I think the plaintiff could escape liability for them only by showing that he had made inquiry and had no reason on inquiry to believe in their existence. He cannot now urge that defendants could not or would not have disclosed them on inquiry made. The utmost he can claim is to show that they ware actually suppressed or that he was misled on his applying to the defendants in possession for information. This is not a point which seems to have been considered to the <ORG>s below. The lower <ORG> appears to have treated the case as one in which no such suggestion had been raised in argument. And neither <ORG> has dealt with the case at all with reference to the liability of the plaintiff as a purchaser, who having notice of defendants' possession had abstained from inquiry into the title. The question of limitation as to Exhibits 57, 58 and 59 does not appear to have been urged, those documents being payable according to their tenour, it would seem, only when redemption was claimed, so that till redemption was sought time would not begin to run in respect thereof under Article 132 , and the point does not seem to have been taken in the lower <ORG>s. The only real questions in the case appear to be (a) whether the defendants' possession was notice which bound plaintiff to inquire, (6) whether if this be so, he could rely on Section 50 of the Registration Act as giving him an absolute priority which could not be affected by the equitable doctrine of notice arising from possession in the defendants, and (c) whether, if the plaintiff cannot rely on Section 50 of the Registration Act as giving him absolute priority, but was also bound by the possession of the defendants to inquire into the nature and extent of their rights, he had made due inquiry and been misled, or put of his guard or been refused information altogether. This last question is one of fact, which, owing to the view the lower <ORG>s took of the case, was not inquired into and decided, and I would, therefore, send the case back to the lower <ORG> for a decision on the above question, viz., whether the plaintiff did inquire and, if so, whether he was misled, put off his guard or refused information. Return to be made in two months.

Aston, J.

18. The main question in this case is whether appellant <NAME> (original plaintiff) should be treated as fixed with knowledge of the contents of Exhibits 57, 58 and 59 when he purchased the plaint lands in 1897 from defendant II. But certain features in the case require preliminary consideration:

On the 17th December, 1837, the grandfather of defendant 1 mortgaged the plaint lands to one <NAME>, the ancestor of descendants 2-6, for Rs. 648-12-8, the mortgage being usufructuary and the profits to be enjoyed in lieu of interest.

19. The plaintiff <NAME>, on 3rd December, 1897, by registered deed (Exhibit 78) purchased she plaint lands from defendant 1 and became owner of the equity of redemption. He brought this suit to redeem this one mortgage and recover possession on payment of Rs. 645-12-3, the amount of the said mortgage which ha Bought to redeem.

20. Defendants 2-6, descendants of <NAME>, replied that they had transferred their rights to defendants 7-10.

21. Defendants 7-10 disputed the plaintiff's purchase of the equity of redemption, and replied farther that the original mortgagor's sons and daughters had passed other "money bonds" to <NAME> and that they ought to be parties to this suit: and defendants 7--10 further pleaded that they had purchased the plaint lands from defendant 2 on 12th April, 1893 (under Exhibit 55, a registered document), for Rs. 1,275 and had spent Rs. 1,225 on improving the land, and that the total money due to them on the said mortgage was Rs. 2,500 which ought to be paid to them.

22. It will be observed that Rs. 2,500 is exactly Rs. 1.275 plus Rs. 1,225 and that there is no mention, in this defence of defendants 7--10, of any claim in respect of any other mortgage or charge. There is no mention of the number, dates or amounts of the other bonds vaguely referred to: they are expressly called "money" bonds, and the plea raised in respect of them is not any claim to increase the redemption money payable, but a plea that the sons and daughters of the original mortgagor should be made parties.

23. Nor is there any mention in the issues framed in the suit of any mortgage other than the one which the plaintiff <NAME> sued to redeem, that is, the mortgage of 17th December, 1837, for Rs. 695-12-3.

24. The issues framed were:

1. Whether or not the plaintiff's assignment is proved?

2. It not, whether or not the plaintiff has a right to bring this suit?

3. What amount is due on the mortgage sought to be redeemed, including cost of repairing and improving the property and the payment of dast thereon by <NAME>?

4. If redemption is to be allowed, on what terms can it be allowed?

5. To what relief, if any, is the plaintiff entitled?

25. The Subordinate Judge first decided that the plaintiff <ORG>'s purchase of the equity of redemption (Exhibit 78) was not proved, and dismissed the suit. This decree was reversed in appeal on the finding that "the plaintiff is entitled to redeem the mortgage in question," and the suit was remanded for findings on the other issues and a fresh decision according to law.

26. After this remand the Subordinate Judge decided, under the third issue already repeated above, that "Rs. 1,130-12-3 are due on account of the mortgage sought to be redeemed," and decreed redemption on payment of this sum with coats in proportion to defendants 7--10.

27. The above amount, Rs. 1,130-12-3, is in fact made up of Rs. 645-12-3 on account of the mortgage sought to be redeemed and Rs. 242-8-0 plus interest Rs. 242 8-0 on account of three other mortgages not mentioned in the pleadings or issues, disputed by the plaintiff and introduced into the case in the following manner.

28. The deed (Exhibit 55) of 12th April, 1893, under which the defendants 7--10 purchased from defendant 1, <NAME>, the rights of the original mortgagee for Rs. 1,275, has been translated and runs as follows:

Sale-dead. The 11th of Chaitra Vadya in Shake 1815, the 12th of April, 1899, the cyclical name of the year being Vijaya, On this day (this) sale-deed is passed in "writing to <NAME>, <NAME>, <NAME> and <NAME>, Chambhars, residing at Panchanadi, by <NAME>, residing at Kalthare, taluka Dapoli, at present at Ratnagiri, I give in, writing as follows: I have this day taken from you Rs. 1,275, namely, twelve hundred and seventy-five in cash. (In consideration) for the same (1) sell the following property situate at the village of Kashe Panchanadi, sub-district Dapoli, district Ratnagiri. The said property has been with me (i.e., my grandfather) for vahivat under a mortgage by a deed dated the 9th of <NAME> 1759 (21st December, 1887) from the deceased Bhaudin valad Kutubudin Mukadam of Kolthare for the principal sum of Rs. 645-12-3 and on the security of the same (property) his direct heirs took (i.e., borrowed) from me (from my father) further sums of money and executed documents in respect thereof on stamped papers. In addition to this I made repairs, &c, to the said <ORG> for which money is due to me under the terms of the original deed on account of expenses. Making up the whole account including this (last) item, a very large sum becomes due to me. However, on receiving from you now the amount above mentioned, I have sold to you my right as mortgagee of this property.. The said property is as follows.--Survey No. 87, sub. No. 1, area 2 acres and 21 gunthas, assessment Rs. 16-8. I have sold the mortgage right of this property to you as stated above. You should therefore carry on the vahivat thereof from generation to generation through sons, grandsons, &c., pay the Government assessment and take the hot season and rainy season profits in lieu of interest. The profit or loss is yours. Should the owner come to you to pay the mortgage amount within the period prescribed by law, you should receive the amount in accordance with terms of the deed executed by him, and make over the property to him. If thereby you receive an amount more or less than the amount now received by mo, the same shall be yours. Neither myself nor my kinsmen have anything to do with the same. Should any obstruction be caused by my kinsmen as regards the said property, I will remove the same. Also, I shall get the khata in respect of assessment transferred (to you). I have duly executed this sale deed, of my own free will and pleasure. The handwriting of <NAME>, inhabitant of Ratnagiri.

29. It will be seen that there is mention of further sums having been borrowed on the security of the same property, bat the further documents as to which no particulars are given as to number, date or amount are not called mortgage-bonds, but are called "documents on stamped papers." Mention is made of an account being made up which by including expenses for repairs (since 1837) amounted to a "very large sum." There is no express statement that the debts subsequently incurred were assigned to the persons in whose favour Exhibit 55 was passed, and the words "I have sold to you my right as mortgagee of this property," read with the express mention of the mortgage of 1837 and the passage later on. "Should the owner come to you to pay the mortgage amount within the period prescribed by law, you should receive the amount in accordance with the terms of the deed executed by him and make over the property to him," are sufficiently general to leave room for contention that this was a sale of the mortgage rights under the mortgage deed Exhibit 56 of 1837, and nothing more. It was contended for the appellant <NAME> (original plaintiff) that this was clearly what defendants 7--10 understood as shown by their written statement and defence to this Suit, already described above, as well as by the fact that none of these further bonds called "money bonds" by defendants 7--10 were made over by defendant 1 to defendants 7--10.

30. It appears, however, that-at the hearing of the suit; there were produced from the custody of defendant 2, <NAME> (who, it will be remembered, was the person who executed Exhibit 55), three bonds purporting to be more than thirty years old but unregistered.

31. they are Exhibits 57, 58 and 59. They purport to create further charges on the property mortgaged in 1837, and to be dated March 1864, February 1865, and March 1866, and two of them to have been executed by <NAME>, father of defendant 1, and the third by <NAME>, a daughter of the original mortgagor, the grandfather of defendant 1. The first is for Rs. 57-8-0, the second for Rs. 95 and the third for Rs. 90--in all Rs. 242-8-0--and the rate of interest fixed in each is twelve per cent.

32. The Subordinate Judge, without discussing the custody from which these three unregistered documents had come into <ORG> considered them proved by the evidence of witness 61 and because defendant 2 (who has no interest in the plaint property) admits all these mortgages in his examination (Exhibit 60).

33. The Assistant Judge who decided the appeal does not mention the evidence of witness Exhibit 61, but held these three bonds (Exhibits 57, 58, 59) to be genuine, and to be in the identical bonds mentioned in Exhibit 55 without number, dates or amounts. His reasons for coming to this conclusion as far as can be gathered from his judgment recorded are: first, that defendants 7--10 are illiterate men of the lowest caste, while defendants 2-6 are educated Brahmins who probably took advantage of the ignorance of defendants 7-10, and therefore retained Exhibits ,57, 58, 59 for some purpose of their own instead of handing them over to defendants 7--10, as they must have known perfectly well that they should have done; secondly, because Exhibit 55 makes mention of other stamped documents passed by direct heirs of the original mortgagor, and the evidence that there were any improvements which could have raised the purchase value of the mortgage rights from Rs. 645-12-3 to Rs. 1,275 in Exhibit 55 is unsatisfactory.

34. The Assistant Judge, holding that the rule of damdupat does not apply where the original mortgagor was a Mahomedan, varied the decree in the cross appeal of defendants 7--10 by raising the Rs. 485 calculated by the Subordinate Judge as due under these three bonds to Rs. 1,192-7-7, making the total amount payable by plaintiff <NAME> for redemption Rs. 1,838-5-10 instead of Rs. 1,130-12-3.

35. It has been contended for the appellant <NAME> (original plaintiff) that the lower appellate Court's finding of fact that Exhibits 67, 58, 59 are genuine documents is vitiated by the method by which this conclusion is arrived at, beause the Assistant Judge seems to have dispensed with formal evidence as to their execution by treating them as ancient documents coming from proper custody and by drawing the presumption permissible under Section 90 of the Evidence Act (I of 1873) as to handwriting, execution and attestation.

36. This contention would be sound if the Assistant Judge had really adopted such a presumption, under Section 90 of the Evidence Acts, as the basis of his decision that Exhibits 57, 58, 59 are genuine. Illustration (a) to Section 90 says:

A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper.

37. The "particular case" in the present suit is the exact converse. The defendants 7--10, under the new case they set up at a later stage of the suit, claimed to have become assignees under Exhibit 55 passed by defendant 2 of the three several debts charged upon the plaint property by Exhibits 57, 58, 59, and they produced the latter three documents from the custody of defendant 2 when, according to the case for defendants 7--10, these three documents (Exhibits 57, 58, 59) ought to have been produced from their own custody if these particular charges became assigned to them under Exhibit 55 by defendant 2 in April, 1893.

38. But though the Assistant Judge describes the custody of defendant 2 as "not improper," he seams to have merely meant that he preferred to s believe that defendant 2 had overreached defendants 7--10 and had improperly retained documents he should have handed over to defendants 7--10, rather than believe that Exhibits 57, 58 59 are fabricated or that other bonds--simple money bonds--have been suppressed by defendants 7-10.

39. In fact, the judgment says that Exhibits 57, 58, 59 should have been handed over by defendant 2 to defendants 7--10 when Exhibit 55 was passed: in other words, the proper custody in this particular case for Exhibits 57, 58, 59 is the custody of defendants 7--10 from which they were not produced. There cannot, I think, be two different proper custodies for any document at a given time in any particular case. I agree, therefore, with the view of the lower <ORG> that if Exhibits 57, 58, 59 had been produced in this particular case from the custody of defendants 7--10 they would have come from proper custody. They did not come from the custody of defendants 7--10, who, therefore, cannot obtain advantage from the provisions of Section 90 of the Evidence Act. The explanation suggested by the Assistant Judge as to why they came from defendant 2 may help to remove suspicion as to their being genuine, but it does not relieve defendants 7--10 of the necessity of proving Exhibits 57, 58, 59 independently of the provisions of the said section. Nevertheless, I read the judgment of the lower <ORG> as recognising this and as basing the finding of fact, that these unregistered Exhibits 57, 58, 59 are genuine and are the identical documents on stamped papers referred to in Exhibit 55 and were assigned by defendant 2 to defendants 7--10 upon the evidence actually recorded in the suit, such as it is.

40. There remains the question whether it was rightly decided that the appellant <NAME> is bound to pay the charges created by Exhibits 57, 58, 59 in addition to the mortgage debt of Rs. 645-12-3 before he can recover possession of the plaint property from defendants 7--10.

41. The plaintiff's purchase from defendant 1 of the equity of redemption in 1897 by Exhibit 78 is registered, whilst Exhibits 57, 58, 59 are not registered. Section 50 of the Registration Act (III of 1877) "confers priority on documents required to be registered and accordingly registered since Act III of 1877 was passed over all prior unregistered documents of an antagonistic character" : <NAME> v. <NAME> (1895) 20 Bom. 158. But "in spite of the large words of the exacting part this Court has consistently limited them to the cases where the subsequent purchaser has no notice of the prior unregistered conveyance": <NAME> v. <NAME> (1893) 18 Bom. 355. The respondent's pleader, relying, therefore, on the equitable doctrine of notice, contended that by reason of the registration of the deed of assignment (Exhibit 55) passed by defendant 2 in April, 1893, the appellant-plaintiff had notice of the transactions set out in the unregistered documents (Exhibits 57, 58, 59), so far as they can be taken to be dealt with by Exhibit 55. This contention is sufficiently met by the decision in <NAME> v. <NAME> (1896) 22 Bom. 213 where it was said by <NAME>, <NAME>, "the register may be notice, and in most cases under the rulings of this Court doubtless is, of the registered documents which it contains, but it would be pushing the doctrine of constructive notice beyond all bounds to hold that it is notice of the unregistered documents under which the holders of registered documents B derive their title."

42. But possession being equivalent to notice of such title as the person in possession may have, both under Hindu, Mahomedan and English laws see <NAME> v. <NAME> (1882) 6 Bom. 168, and the respondents being in possession as assignees of the usufructuary mortgage of 1837 when appellant bought the equity of redemption from defendant No. 1 in 1897, the point has been raised, without, however, any argument being specially directed to it at the hearing, whether such possession was notice to appellant of the subsequent charges purporting to be created by the unregistered Exhibits 57, 58, 59.

43. In equity it is sufficient to charge a man with knowledge that he had that before him which, if he had used due diligence, would have afforded the knowledge he desires: per Lord St. Leonards in <NAME> v. <NAME> (1868) 3 E. and 1 App. 171 at p. 221 quoted by <NAME>, <NAME>, in <NAME> v. <NAME> (1869) 6 Bom. H.C. 59, where, on the English authorities cited, the duty to make inquiry into the title when the vendor is not in possession is insisted upon. In the case of <NAME> v. <NAME> there was neglect to make such inquiry. In the case of <NAME> v. <NAME> (1883) 7 Bom. At p. 145 it was said by <NAME>, J.: "Had he taken up another line of defence we might perhaps have given him an opportunity of showing that at the time of his purchase he did make inquiries and was informed and believed that the mortgage had been foreclosed."

44. In <NAME> v. <NAME> (1881) 17 Ch. D. 353, where it was held that a purchaser or lessee having notice of a deed passing part of his vendor's or lessor's title has constructive notice of the contents of such deed, it was said by <NAME>, <NAME>: "Supposing you are buying land of a married man, as in <NAME> v. <NAME> (1841) 1 Hare 43, and you are told at the same time that there is a marriage settlement but the deed does not affect the land in question, you have no constructive notice of its contents, because although you know there is a settlement you are told it does not affect the land." And again at page 358: "Therefore I think there was sufficient to pub the lessee off his guard."

45. <CITATION> (1881) 17 Ch. D. at p. 442 it was said by <NAME>, J.: These questions of notice and of the effect of notice are some of the most difficult questions which <ORG> has to deal with, and I cannot help feeling that we must be very careful not to strain the doctrine of notice too far and to make it involve consequences of liability to persons who may be practically innocent." And again at page 448: "If a man has notice that there is a deed or document and at the same time, has notice that that deed or document is entirely worthless or does not affect the property with which he is going to deal, he is put so completely off his guard that <ORG> does not treat him as fixed with knowledge of the document or the effect of it."

46. Under Section 3 of the Transfer of Property Act (IV of 1882) a person is said to have "notice" of a fact when he actually knows that fact, or when but for wilful abstention from an inquiry or search which he ought; to have made, or gross negligence, he would have known it, or when information of the fact is given to or obtained by his agent, under the circumstances mentioned in the Indian Contract Act , 1872, Section 229 .

47. Now in the present case though defendants 1 and 2 after parting 2 with all their respective interest in the plaint land have shown a readiness to support the belated claim of defendants 7-10 to hold the plaint land subject to the charges purporting to be created by Exhibits 57, 58, 59 after the mortgage of 1887, it does not follow that this was the attitude adopted by defendants 1 and 2 all along.

48. The reference in Exhibit 55 to other documents on stamped paper is vague and the written statement of defendants 7-10 does not suggest any belief on the part of these defendants that they held the plaint land subject to any such further charges. They in fact resisted redemption until they were paid Rs. 1,275, the price paid to defendant 2, and Rs. 1,225 for improvements, and they described the later bonds as "money bonds" without basing any claim upon them.

49. There is nothing on the record to show that the plaintiff made no inquiry when he purchased the equity of redemption from defendant 1, nor does the written statement of defendants 7-10 suggest that any such inquiry would have led to an assertion by defendants 7-10 in 1887 of any claim under Exhibits 57, 58, 59 or to the production of those documents which were not in the custody of defendants 7-10 at any time.

50. The claim pat forward under Exhibits 57, 58, 59 is, as already pointed out, a later development of the defence. The point whether <NAME> was fixed with knowledge of the contents of Exhibits 57, 58, 59 by means of the possession of defendants 7--10 is a still-later development, and <NAME>, the appellant-plaintiff, has not been given a proper opportunity to meet the new case thus brought forward for the defendants 7--10. For the above reasons I concur entirely in the view that this appeal cannot be decided on the ground that plaintiff was at the time of his purchase fixed with the knowledge of the charges purporting to be created by Exhibits 57, 58, 59 until the plaintiff has been given the opportunity to show whether at the time of his purchase from defendant 1 he did make inquiries as to the possession of defendants 7--10, and with what result, so that it may be ascertained whether he was offered the same information as that given in the written defence of defendants 7--10 and was misled or put off his guard as to the nature and extent of the rights of defendants 7--10.


<NAME> Dunedin, J.

1. In this case the plaintiffs were mortgagees under a registered mortgage bond granted by the defendant. They raised action for the sum of Rs, 52,000 odd, said to be due under the mortgage. The defendant denied that the whole sum was due, as he said the plaintiffs had not given him credit for two sums of Rs. 11,000 odd and Rs. 8,000 odd, which he had paid, such payments having originally been endorsed on the bond, but the endorsations having been erased by the plaintiffs.

2. The Subordinate Judge gave effect to this contention, but made the ordinary preliminary decree for the sum of Rs. 19,000, being the sum due, with proper computation of interest, after allowing credit for the above-mentioned two sums. The date of this decree was February 22, 1915. The six months of grace for payment would, therefore, expire on August 22, 1915. The mortgagees appealed against the decree. The appeal was heard, and the appeal dismissed on May 21, 1917.

3. On February 21, 1919, application was made for a final decree. The defendants opposed the application on the ground that it was time-barred under Article 181 of the Schedule to the Limitation Act , 1908. The terms of that Article of the schedule are : "Applications for which no period of limitation is provided elsewhere in this Schedule; period of limitation three years; time from which period begins to run, when the right to apply accrues."

4. The three years had expired or had not expired according as computation fell to be made, as the defendants urged, from the time fixed for payment by the original decree, or, as the plaintiffs urged, from the date of the dismissal of the appeal. The Subordinate Judge gave effect to the contention of the plaintiffs.

5. On appeal <ORG> upheld the decision of the Subordinate Judge. The present appeal is against that judgment. The point, therefore, is simply whether the time runs from the expiry of the time fixed by the original preliminary decree or from the date when on appeal against that decree the appeal was dismissed.

6. The appellant's counsel strenuously urged that the appeal was not against the decree, but only against the items in the decree. This is a complete misunderstanding. An appeal must be against a decree as pronounced, It may be rested on an argument directed to special items, but the appeal itself must be against the decree, and the decree alone. Which date is then to be preferred ? Their Lordships agree entirely with what was said by <NAME> in the case of <CITATION> (1917) I.L.R, 39 All. 641, F. b. (p. 643):-

It seems to me that this rule [the rule regulating application for final decrees in mortgage notions] contemplates the passing of only one final decree in a suit for <ORG> upon a mortgage. The essential condition to the making of a final decree is the existence of a preliminary decree which has become conclusive between the parties. When an appeal has been preferred, it is the decree of the appellate court which id the final decree in the cause

7. These words are all the more weighty that previously the learned Judge had in the case of <CITATION> (1915) I.L.R. 33 All. 21 held that when there had been an appeal against a preliminary decree, the limitation period applicable to an application for final decree ran from the expiry of the time for payment fixed by the original decree, and not from the disposal on appeal, a view which he candidly confessed in this case was erroneous. The point is put with admirable brevity by <NAME> (p. 645) :-

When the <ORG> passed the decree, it was open to the plaintiff, or the defendant, to accept that decree or to appeal. If an appeal is preferred, the final decree is the decree of the appellate court of final jurisdiction. When that decree is passed, it is that decree, and only that, which can be made final in the cause between the parties.

8. The same view was incidentally taken without comment by this Board in the case of <CITATION> . (1914) I.L.R. 38 All. 350 : s.c. 10 Bom. L.R. 395, P.C.

9. Their Lordships will, therefore, humbly advise His Majesty to dismiss the appeal with costs.


CASE NO.: Appeal (civil) 1729 of 1998 PETITIONER: ENGINEERING LAGHU UDYOG EMPLOYEES' UNION RESPONDENT: JUDGE, <ORG> AND INDUSTRIAL TRIBUNAL AND ANR. DATE OF JUDGMENT: 25/11/2003 BENCH: V.N. KHARE CJ & S.B. SINHA & DR. AR. LAKSHMANAN JUDGMENT:

JUDGMENT 2003 Supp(6) SCR 253 The Order of the Court was delivered :

One Smt. <NAME> was an employee of <ORG>, Ajmer. It appears that she committed certain misconduct as a result of which her services were terminated by the employer on 20th December, 1989. The charge against the workman was that the Manager has entered into conspiracy to get her kidnapped through one <NAME> by offering her Rs. 10,000. Such an allegation was made against the Manager in front of other workmen and on Manager's asking as to why she had been casting, such false allegations against him and despite his efforts to pacify her, she became violent and took off her chappal and threatened to beat him, but on intervention of some other workmen, she could not reach him. She despite the Manager's asking her to behave herself, continued to make allegations against him in the most filthy language.

Having regard to the said misconduct as also her other past misconducts, the workman was dismissed from service. She did not even acknowledge the receipt of the order of dismissal as a result whereof the same had to be sent to her by registered post along with a covering letter in respect thereof. She even refused to accept the dues as admissible to her and the same was sent by Money Order on 21.12.1989.

The appellant herein espoused the cause of Smt. <NAME> (workwoman). As the conciliation proceedings failed, the matter was referred to <ORG> under Section 10 of the Industrial Disputes Act (for short 'the Act'). One of the issues framed before <ORG> was whether the order .terminating the services of Smt. <NAME> was contrary to the principles of natural justice as no domestic inquiry proceedings were held for the said purpose. Under such circumstances, the employer opted to lead evidence to prove the charges as a result of which the services of Smt. <NAME> were terminated. <ORG> permitted the employer to lead evidence. After examining the evidence adduced by the employer, <ORG> found that the charges levelled against Smt. <NAME> are proved. Consequently, <ORG> gave its award on 19.2.1996 against the workman holding that the charges are proved. Aggrieved, the appellant who espoused the cause of the workman filed a petition under Article 226 of the Constitution before <ORG>. A learned Single Judge of <ORG> dismissed the writ petition A letters patent appeal filed by the appellant also met with the same fate. Aggrieved, the appellant is in appeal before us by way of special leave.

Learned senior 'counsel appearing for the appellant urged that the view taken by <ORG> to the extent it held that the order of termination would relate back to the date of the original order of termination, is erroneous and relied upon a 3-Judge Bench decision of this Court in <CITATION> ,  2 SCR 146 at page 215.

Having heard the matter, we are of the view that the said submission cannot be accepted as this question stands concluded by a <ORG> decision of this <ORG> in <CITATION> ,  2 SCR 104. In <NAME> case (supra), it was held by the <ORG> that where a domestic inquiry is found defective and the employer leads evidence before <ORG> and subsequently <ORG> gives its approval that the charges are proved, the order of termination would relate back to the date of original order of termination. This decision was followed in <ORG> and Another v. <NAME> and Others,  6 SCC 159 wherein it was said that the <ORG> decision in <NAME> case (supra) and the decision in <CITATION> ,  l SCC 9 have held that when <ORG> records a finding that the domestic inquiry was defective and opportunity was given to the management and the workman to adduce evidence and <ORG> upholds dismissal order passed by the management, the dismissal order would relate back to the date of order of original dismissal and not from the date of award of <ORG>. <CITATION> ., [ 1997] 3 SCC 713, this <ORG> however, observed that some of the decisions rendered by this <ORG> subsequent to <NAME> case (supra) require a relook as the same are not in consonance with the <ORG> decision. The same Bench in <CITATION> ,  2 SCC 159 held that where an order of termination is found defective having been passed contrary to the principles of natural justice and the employer before <ORG> has adduced evidence to prove the charges and <ORG> comes to the conclusion that the charges are proved, in such a situation the order of dismissal will relate back to the original order of termination. <CITATION> ,  Suppl (4) SCC 157, it was held that the effective date of dismissal after domestic inquiry if <ORG> finds the inquiry to be unfair and as such gives the employer an opportunity to prove the charge and finally upholds the dismissal, will relate back to the date of original order. This has been the consistent view of this <ORG>.

Section 11A of the Industrial Disputes Act, 1947 (for short 'the Act') confers a wide power upon <ORG>, <ORG> or the National <ORG> to give appropriate relief in case of discharge or dismissal of workmen. While adjudicating on a reference made to it, <ORG>, <ORG> or the National <ORG>, as the case may be, if satisfied that the order of discharge or dismissal was not justified, it may, while setting aside the same, direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. Thus, only in a case where the satisfaction is reached by <ORG> or the <ORG>, as the case may be, that an order of dismissal was not justified, the same can be set aside. So long as the same is not set aside, it remains valid. But once whether on the basis of the evidences brought on record in the domestic inquiry or by reason of additional evidence the employer makes out a case justifying the order of dismissal, we fail to understand as to how such order of dismissal can be given effect to only from the date of the award and not from the date of passing of the order of punishment. The distinction r-ought to be made by this <ORG> in some of the matters including Gujarat Steel Tubes (supra), in our opinion, is not based on a sound premise, particularly when the binding decisions of this <ORG> in <ORG> case (supra) and <ORG> (P.) <CITATION> .,  3 SCR 587, have not been taken note of.

In the present case, we find that the charges were proved before <ORG> and, thus, <ORG> was correct in holding that the order of termination would relate back to the date of original order.

Learned senior counsel then urged that <NAME> case (supra) . is dissimilar as it was a case of defective inquiry. According to the learned senior counsel, there is a difference between a termination which is not followed by an inquiry and where inquiry is found to be defective on account of procedural breach.

It is not in dispute that in a proceeding for obtaining approval of an order of dismissal from <ORG> or <ORG>, as the case may be, in terms of Section 33(2)(b) of the Act or where a reference has been made under Section 10 thereof, if it is found that an inquiry has been conducted in violation of the principles of natural justice, the employer is entitled to raise the said question in its written statement by way of preliminary issues and pray for grant of such an opportunity to prove the charges levelled against him.

<CITATION> ,  3 SCR 588, this Court held :

"It is now well-settled by a number of decisions of this Court that where an employer has failed to make enquiry before dismissing or discharging a workmen it is open to him to justify the action before the tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic inquiries have been held. The entire matter would be open before the tribunal which will .have jurisdiction not only to go into the limited questions open to a tribunal where domestic inquiry has been properly held (see <CITATION> ,  SCR 667) but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. We may in this connection refer to M/s. Sasa Musa sugar Works (P) Limited \. Shobrati Khan,  Supp. SCR 836, <CITATION> ,  l SCR 32 and the <CITATION> ,  l SCR 806. These three cases were further considered by this Court in <CITATION> ,  3 SCR 684, and reference was also made to the decision of <ORG> in <NAME> v. <ORG>, (1954) LAC 697. It was pointed out that "the import effect of commission to hold an enquiry was merely this : that the tribunal would not have to consider only whether there was a prima fade case but would decide for itself on the evidence adduced whether the charges have really been made out." It is true that three of these cases, except <ORG> case, were on applications under s. 33 of the Industrial Disputes Act, 1947. But in principle we see. no difference whether the matter comes before the tribunal for approval under s. 33 or on a reference under s. 10 of the Industrial Disputes Act, 1947. In either case if the enquiry is defective or if no enquiry has been held as required by Standing orders, the entire case would be open before the tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper. <ORG> was on a reference under s. 10 , and the same principle was applied there also, the only difference being that in that case, there was an enquiry though it was defective. A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper." The employer, thus, has got a right to adduce evidence before the <ORG> justifying its action, even where no domestic inquiry whatsoever has been held.

Yet again in <CITATION> .,  3 SCR 587, this Court while interpreting the provision of Section 11A of the Act held that in terms thereof, the management need not necessarily rely on the materials on record as while introducing Section 11A of the Act, the <ORG> must have been aware of the decisions of this Court which are operating in the field for long time. This Court enunciated several principles bearing on the subject and, therefore, it held that it was difficult to accept that the expression materials on record; used in the proviso to Section 11A was set at naught. The Court formulated the propositions of law emerging from the decisions rendered by this Court, the relevant portions whereof are as under:

"From those decisions, the following principles broadly emerge:

(1) ... (2) ... (3) ... (4) Even if no enquiry has been held by an employer of if the enquiry

held by him is found to be defective, the <ORG> in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence for the first time justifying his action; and it is open to the employee to adduce evidence contra.

(6) The <ORG> gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.

(7) It has never been recognized that the <ORG> should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.

(8) ....."

Even in <NAME> 's case (supra), no distinction, thus, has been made between a defective inquiry and no inquiry.

In Gujarat Steel Tubes Ltd. Case (supra), [1980] 2 SCR 146, <ORG> sought to make a distinction between an approval which is required to be made under Section 33 of the Act and a reference under Section l O thereof stating :

"<ORG> was cited to support the view of relation back of the Award to the date of the employer's termination orders. We do no agree that the ratio of <ORG> corroborates the proposition propounded. Jurisprudentially, approval is not creative but confirmatory and therefore relates back. A void dismissal is just void and does not exist. If the <ORG>, for the first time, passes an order recording a finding of misconduct and thus breathes life into the dead shall of the Management's order, predating of the nativity does not arise. The reference to Sasa Musa <ORG> enlightens this position. The latter case of <ORG> (supra) specifically refers to <ORG> 's case and <NAME> case and holds that where the Management discharges a workmen by an order which is void for want of an enquiry or for blatant violation of rules of natural justice, the relation-back doctrine cannot be invoked. The jurisprudential difference between a void order, which by a subsequent judicial resuscitation comes into being de novo, and an order, which may suffer from some defects but is not still born or void and all that is needed in the law to make it good is a subsequent approval by a tribunal which if granted, cannot be obfuscated."

When in terms of the proviso appended to clauses (b) of Section 33 of the Act, an approval is sought for and is refused, the order of dismissal becomes void. If an approval is not obtained still, the order of punishment cannot be given effect to. It is, therefore, not correct to contend that the <ORG> in a reference under Section 10 of the Act, when passes an order recording a finding of misconduct, brings life into the dead. Unfortunately, the Court did not take notice of the binding decisions in <ORG> case (supra) and <ORG>'s case (supra).

We may further notice that <NAME> case (supra) has also recently been followed by another Constitution Bench in <CITATION> ,  2 SCC 224.

We may, however, observe that although in certain contingencies an employer may in a case of grave nature of misconduct dismiss a workman without holding an enquiry but ordinarily such an enquiry will not be dispensed with. In the event it is found ultimately by <ORG> that the employer had taken recourse to unfair labour practice or the order of termination has been passed malafide or by way of victimization, it will be open to the <ORG> to pay compensation even in a case where ultimately charges are proved, despite holding that the order of termination is valid for the reason that principles of natural justice have not complied with.

For the aforesaid reasons, we do not find any merit in this appeal. It is, accordingly, dismissed There shall be no order as to costs.


JUDGMENT <NAME>, J.

1. This case has been referred to a Full Bench for a decision of the following point of law, namely:

Where a third mortgagee professes to keep in his hand a part of the mortgage money in order to pay off the first and second mortgages and pays of only the first mortgage, whether in a suit by the second mortgagee to enforce his mortgage it is open to the third mortgagee to insist on his being treated as a first mortgagee whose mortgage must be paid of before the plaintiff brings the mortgaged property to sale.

2. The facts of the case are stated in the referring judgment and briefly are as follows:

One <NAME> was the owner of a certain property. He mortgaged the same for a sum of Rs. 200 to one <NAME> on 19th October 1915. The next year on 16th October 1916, he made a simple mortgage of the same property in favour of one <NAME> and one <NAME>, son of <NAME>. The second mortgage was for a sum of Rs. 400 and' <NAME> and <NAME> kept a portion of the mortgage money with themselves to pay off <NAME>. <NAME> and <NAME> however did not pay off <NAME> and their suit out of which the present appeal has arisen is for recovery of a sum of Rs. 176 principal amount and interest.

3. <NAME> sold the property on a date which is unknown to one <NAME>, son of Shimbhoo and <NAME> made a simple mortgage of the property sold to the present appellants, (defendants 3 to 5), <NAME>, <NAME> and <NAME>, for Rs. 2,000 on 29th July 1926. Out of the mortgage consideration of Rs. 2,000 a sum of Rupees 676-3-0 was left with the mortgagees for payment to <NAME>, a sum of Rupees 730-8-0 was left with the mortgagees to pay the second mortgage held by the plaintiff-respondents, <NAME> and <NAME>, son of <NAME>, a sum of Rs, 557-13-6 was similarly left with the mortgagees to pay off a simple money decree held against the vendor and a sum of Rs. 35-7-6 was paid in cash to the vendor. On 29th November 1926, the heirs of <NAME> were paid by the appellants a sum of Rs. 704-12-0 in full satisfaction of the first mortgage, dated 19th October 1915. The second mortgage not having been discharged, <NAME> and <NAME>, son of <NAME> have claimed their money. The appellants were impleaded as the third mort gagees and they pleaded inter alia that they had satisfied <NAME>'s mortgage and without paying that amount the plaintiffs were not entitled to get the property in question sold by auction. We have to consider whether in the circumstances of the case the appellants were subrogated to the position of <NAME>. The point raised in this appeal has given rise to conflicting decisions, although it must be said that in this. Court the majority of cases has decided that a third mortgagee paying off the first mortgage in the circumstances of the present case is not entitled to be subrogated to the position of the first mortgagee. The earliest important case-on this point is the <ORG> decision in <CITATION>  33 All. 101 It was a case of a purchaser from the mortgagor paying off the first mortgage, and it was held in the circumstances of the case that it was never the intention of the purchaser to keep the first mortgage alive. It was pointed out that at the date of the sale the intention of the purchaser was to pay off and extinguish the first mortgage and not to keep it alive. Then it was pointed out that if the date of payment be the crucial date on which the intention to keep alive or extinguish was to be entertained then the written statement showed that no idea of keeping alive the first mortgage was entertained at the date of payment because it was not even mentioned by way of defence and the point was raised subsequently as an "afterthought."

4. This case and the <ORG> case of <NAME> v. <NAME> [1883] 9 Cal. 961 were cases of purchasers whose interest it might be to extinguish the mortgage and to hold the property free from it for their own benefit. Both the cases-were decided on the peculiar facts of the case and their Lordships took care to point out the questions of fact which determined their decision. The principle-of merger which was contained in a codified form in Section 101, T.P. Act before its amendment and which is still to be found in the amended section of the same Act, does not lay down that there-may be a merger, where the person paying off the earlier charge was only a charge holder or mortgagee and not a full owner. It is only in the case of a larger interest being acquired that a smaller interest disappears on the principle of merger. This was entirely overlooked in some subsequent cases decided in this Court and a doctrine of agency was evolved. It was said that the money with which the third or any subsequent mortgagee pays the first mortgage is the property of the mortgagor and as no subrogation is allowed to a mortgagor, the third or subsequent mortgagee in making the payment is acting only as an agent of the mortgagor and he is not entitled to be subrogated to the position of the first mortgagee. Such a case was that of <NAME> v. Nathi A.I.R. 1923 All. 509. There the learned Judge applied the case of <CITATION>  33 All. 101 without distinguishing the feature of the earlier case that there the person making the payment was a purchaser from the mortgagor. This case has been followed by other cases in this Court but a contrary view has also been taken in this Court : see for example <NAME> v. Basir Uddin  28 All. 778 and <CITATION> A.I.R. 1926 All. 653. In Madras the case of Vanmikalinga v. Ghidambara  29 Mad. 37 and in Calcutta the case of <CITATION>  33 Cal. 1133 take the same view as this Court did in the two cases just mentioned.

5. The doctrine of agency has much to be said against it. To start with there does not appear to be any difference in principle between a case where a purchaser or a third mortgagee advances some money to the vendor or the mortgagor, as the case may be and then pays off the first mortgage and the case where a purchaser or a third mortgagee professes to take the transfer for a larger sum than in the earlier case and keeps with him the money needed for paying off the earliest mortgage and actually does not hand over the money to the vendor or the mortgagor, but uses the money to pay off the first mortgage. It is conceded that in the first case a subrogation does arise, but it is denied that it arises in the second case. The principle of subrogation has been brought into existence on the ground that the person who has discharged a burden should not lose, the money spent on discharging the burden and a subsequent mortgagee who has contributed nothing to discharge the burden should not have the benefit of the discharge for which he has not contributed. The <ORG> cases of <NAME> v. <NAME> [1902] 29 Cal. 154 and <NAME> v. <NAME> [1912] 39 Cal. 527 are entirely in our opinion inconsistent with the theory of agency propounded in some cases by <ORG>. The question however has become very much simplified and it may be said has entirely disappeared from the arena of controversy owing to the amendment of the Transfer of Property Act .

6. Before its amendment in 1929 the Transfer of Property Act did not even contain the word "subrogation" and the law of subrogation had to be deduced from English cases and from general principles of equity. Section 74 , T.P. Act , which has since been repealed contained only the rudiments of the law of subrogation and was not of much use. Section 92 as it now stands after amendment of 1929 does not recognize any doctrine of agency. It is couched in the simplest, widest and clearest language possible and the relevant portion runs as follows:

Any of the persons referred to in Section 91 (other than the mortgagor) and any co-mortgagor shall, on redeeming property subject to the mortgage, have so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage ha redeems may have against the mortgagor or any other mortgagee.

7. Mr. <NAME> who has argued the case for the respondents with his usual ability, has not denied that, if para. 1, Section 92 , applied to the case, the appeal must succeed and the appellants must be treated as the first mortgagee. This is also clear because the appellants as the third mortgagees are among the persons who are entitled under Section 91 , T.P. Act , to redeem the property : they have redeemed the property subject to the first mortgage and they have thereby, according to the terms of the rule of law, the same rights as the first mortgagee whose mortgage they have redeemed, against the mortgagor and any other mortgagee, the last expression including the plaintiffs-respondents. The fact that a part of the so called mortgage money was left with the third mortgagees, does not in any way destroy the facts that the appellants are the third mortgagees and it is they who have redeemed the first mortgage. It is clear therefore that if Section 92 as amended by Act 20 of 1929 applies the appeal must succeed.

8. Mr. <NAME> however argued that Section 92 had no application because of the provision contained in Section 63 , Act 20 of 1929. Section 63 deals with two portions of the Amendment Act . It first says that certain provisions of the Act  shall not be deemed in any way to affect the terms or incidence of any transfer of property made or effected before the 1st day of April 1930 or to affect the validity or invalidity or consequences of anything done or suffered before the aforesaid date and so on. The provisions contained in Sections 92 and 101 , T.P. Act , are dealt with by Sections 47 and 51 and these are not to be found in the first provision of Section 63 , Act 20 of 1929. The second portion of Section 63 , Act 20 of 1929, runs as follows:

And nothing in any other provision of this Act shall render invalid or in any way affect anything already done before the 1st day of April 1930 in any proceeding pending in a <ORG> on that date; and any such remedy and any such proceeding as is herein referred to may be enforced, instituted or continued, as the case may be, as if this Act had not been passed.

9. Section 47 , Act 20 of 1929 dealing with Section 92 , T.P. Act and Section 51 , Act 20 of 1929 dealing with Section 101 , T.P. Act , fall under this Clause 2, Section 63 , Act 20 of 1929. In our opinion there is nothing in Clause 2 which affects the present case. These sections are to have retrospective effect except in so far as they are not to have that effect according to the rule laid down. Now is there anything in this case which has already been done before the 1st day of April 1930, in any proceeding pending in a <ORG> on that date? Then again is there any remedy and any such proceeding as is referred to in Act 20 of 1929 which is being affected by the new provisions of Sections 92 and 101 ? We do not find that such is the case. Indeed Mr. <NAME> has not been able to point out to us what has been done in this case before 1st April 1930 which is being undone by the new rule of law and what is the remedy or proceeding which is being affected by the new provisions of Sections 92 and 101 . All that has been done is to lay down a rule of subrogation which was not contained in the unamended Act. The rule was based on general ideas of equity, and it cannot be said that the new Act is going to affect any remedy or any proceeding which was lawful under the old Act. In our opinion therefore Sections 92 and 101 , Amendment Act , have retrospective effect.

10. Supposing however that the said sections have no retrospective effect, we have got this position. This Court itself was divided as to the rule of subrogation in the circumstances of this case and there are conflicting decisions of other <ORG>. Opinion is likely to differ as to how far the <ORG> case in <NAME> v. <NAME> [1902] 29 Cal. 154 and <NAME> v. Ambika Prasad [1912] 39 Cal. 527 quoted above affect the decisions of the <ORG>. In the circumstances the rule laid down by the legislature would be a safe guide to follow as laying down correctly the rule of justice, equity and good conscience for cases arising before the passing of Act 20 of 1929.

11. The result is that in our opinion the question for our decision must be answered in favour of the appellants, and we must hold and do hold that the appellants are subrogated to the position of the first mortgagee. We direct that the case be returned to the Bench making the reference with the answer given above.