P L D 1957 (W (PLP)

CONSTANTINE, J.--The main facts of this case are not disputed. On a suit for partition, filed by one Mariambai against other members of a Bohra family, judgment was pro nounced oil the 14th December 1939. A decree was drawn up accordingly but was not sealed until 3rd, April 1940 when the stamp was provided. The decree awarded ownership of the property to Yusufali and charges for varying amounts to Mariambai and other members of the family. On 25th January 1940, Yusufah morgaged a 3 as. 6 p. un divided share in this property to one Gendia, who died before evidence was led in this suit. A power of sale was conferred by this mortage. Karachi being one of the towns to which section 69 of the Transfer of Property Act applies. On 11th March 1941, Mariambai assigned her charge to Adamali defendant 2 in the suit now under appeal, by regis tered document. On 5th August 1941, Adamali purchased the rights of Yusufali and the charge-holders in the property by registered document. On 10th September 1941 after due notice the property was put up to auction by the mortgage-holder Gendia and was purchased at the auction by the plaintiff: Fida Hussain. He then brought the suit for partition against defendant 2 and the heirs of Yusufali. The plaint started by reciting the decree for partition and then proceeded to recite the mortgage and the sale thereunder, omitting any reference to the assignment of Mariambai. It mentioned defendant 2 as merely being in possession of the property and claiming to have purchased it. The written statement of defendant 2 set up a defence that the mortgage was without consideration and that the auction was a sham in that Fida Hussain the plaintiff, was a mere nominee of the mortgagee, Gendia. It did not raise the defence which Mr. Vellani for defendant 2 in appeal has adopted, namely, that since he, as the assignee of Mariambai's charge, was a prior charge-holder who had later purchased the property, and since the sale was not made subject to any prior charge, the sale, being prohibited by section 101, was invalid. We allowed defendant 2 to amend (by consent) the written statement in order to plead that he had obtained this assignment from Mariambai, since this had not been recited in the written statement. Similarly we allowed the plaintiff to amend, by consent, his plaint to raise the defence that he had no notice of the prior charges. Mr. Vellani at the outset of his address stated that he could not dispute the findings of the learned judge dismiss ing the defences of no consideration and of collusion between Fida Hussain and Gendia and he relied solely upon section 1.01 of the Transfer of Property Act. The first question, therefore, in appeal is whether the plaintiff succeeds in proving that Gendia had no notice of the prior charges when the mortgage was executed. Since the protagnoists, Yusufali and Gendia, are dead, we are -reduced to consideration of the circumstances of the case. The first is that the decree could not have been communicated to the City Survey Office before the 3rd of April, for it was only on that date, after payment of the stamp, that the decree was sealed. An intending mortgage would look to the City Survey Records. It appears to us that the decree itself makes it probable that Yusufali was in possession of the property, in accordance with the terms of the decree, and also that prior' to the decree his title to be in possession bad been that, of the holder of an undivided share. The mortgage deed itself recites nothing except that Yusufali was the owner of an undivided share in the property. We think, therefore, there was nothing in the circum stances of the case to indicate to the intending mortgage that there was any charge upon the property or that he should make inquiries from other members of the family. This being so, we think that the plaintiff succeeds in establishing that he was purchaser for value without notice of the prior charges Mr. Vellani, however, has argued on the basis of Kuloda Prosad & Co. v. Jageshar Koer (27 Cal. 194) & Dan Kuer v. Sarladevi (1947 P C 8) that where the charges have been created by a decree, no question of notice arises, and the principle "nemo dot qui non habet" must be applied. We do not think that that follows. In 1947 P C 8 the learned judges said that section 39 of the' Transfer of Property Act did not apply to this case. At that date section 100 had not been amended by addition of the words, "Anal save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of the person to whom such property his been transferred for consideration and without notice of the charge". Until this amendment of section 100 there had been a difference of opinion among the courts in A India, but this addition makes it clear th1t the defence of E purchaser for value without notice is now open to a subsequent mortgagee so as to defeat the prior charge. In 1947 P. C. 8 their Lordships had expressly found that notice existed and it appears to us that when they were deal ing with 27 Cal. 194 they were merely considering what is the nature of a Hindu widow's right for maintenance. We think that section 100 applies to this case and that effect must be given to this section. Mr. Faruqui for plaintiff argued that even assuming the mortgagee had notice of the prior charges, yet section 101 was not a defence in the sense that Mr. Vellani had con tended. Mr. Vellani contended that the section prohibited any sale in such circumstances, and therefore the sale was a nullity, and Mr. Faruqui on the other hand contended that, the words "otherwise than subject to" merely meant the purchaser was liable to pay up the prior charges, and in support of this interpretation relied upon section 69 (3), which reads as follows :- "(3) When a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorize the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised ; but any person damnified by an unauthorised or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power." We think, however, that the word `unauthorised' when it occurs a second time relates back to the first time where it is used, namely, to the expression, "no case had arisen to authorise the sale". This seems to refer to cases where, for instance, some special condition precedent to the exercise of the power of sale, had not yet been fulfilled, or where interest had not in fact accrued to the amount provided in subsection (2) we do not think that the word 'unauthorized' refers to a case where the legislature has elsewhere prohibited the sale except 'otherwise than subject to the charge'. No case bearing directly upon this question has been cited to us. It appears that during the long pendency of this appeal defendant 2, who entered into possession, had demolished and rebuilt the property. Injunction had been sought to prohibit the defendant 2 from altering the property, and this was refused. A stay of the-decree had been applied for by defendant 2, and this was partly granted ; proceedings for partition were to proceed but no possession was to be handed over. Mr. Faruqi stated that any alterations done by defendant 2 were to be at his risk, but there is nothing on the record to show that the Court had given expression to such a view. We think that this question may be considered by the original Court when working out the partition, and that it is not necessary for us to express any opinion upon the question. Since the appeal has proceeded in this unsatisfactory state, upon points raised by neither of the two contesting parties in the original Court, we think there should be no costs of this appeal. The decree of the lower Court is confirmed, subject to the modification that the words 'subject to the charge, i.e.,- 0-3-6 share of the entire charge on the property mentioned above" should be deleted. This last modification arises from the fact that there is a cross-decree in which the plaintiff has contended that he is not able to pay any proportion of the prior charges, and since we have held that he was a bona fide purchaser for value he is under no obligation to pay any share of these charges. RAHIM BAKHSH MUNSHI, J,

I agree. Z. A. S. Decree confirmed.