Manohar Lall, J.This appeal by the plaintiff was referred by me to a Division Bench in order to consider the applicability of the Full Bench decision of the Allahabad High Court to decide the question whether on the sale of land the house standing there, on also passes to the purchaser. The facts are these. In Tillage Sikandarpur Ferda, tauzi No. 4990, the defendants second party were proprietors in possession of 2 annas 10 gandas odd share. Out of this they sold 1 anna 17 gandas odd share to the plaintiff for a sum of Rs. 30,000 by a registered sale-deed dated 5th March 1918. The khudkast and bakast lands appertaining to this share were amicably partitioned between the plaintiff and the defendants second party, but as the defendants second party were still causing trouble and disturbing possession of the khudkast and bakast lands thus allotted to the plaintiffs share, he instituted a suit on 23rd December 1918, for a declaration that he was entitled to retain khas possession of the lands which he said had been allotted to his share on amicable partition, but in case the private partition was not established to the i satisfaction of the Court then a regular partition should be made by the appointment of a commissioner; mesne profits were also claimed against the defendants for a certain period. On 20th May 1919, during the pendency of the suit, the plaintiff applied for attachment before judgment of the immovable properties of the defendants second party, that is to say of their 13 gandas odd share. The Court granted the prayer for attachment on 27th May 1919. The partition suit was fought up to the High Court where it was ultimately compromised and a final decree in terms of the compromise was passed on 26th November 1927, by which the khudkast and bakast lands were partitioned by metes and bounds and a decree for mesne profits and costs was also passed in favour of the plaintiff. After realis. irig a portion of the decree, the plaintiff filed a petition on 23rd May 1939, for execution of the balance by attachment and sale of the residential house of the defendants second party which stood on plots Nos. 1999, 2000 and 2002 in that portion of the lands which by partition was allotted exclusively to the 13 gandas share of the defendants second party. During this execution proceeding the defendant first party preferred a claim case under Order 21, Rule 58, Civil P. C, alleging that he had purchased that house along with the land upon which the house stood in execution of a mort gage decree which he had obtained against the defendants second party. The plaintiff then came to know that the defendants second party had actually executed a mortgage bond dated 18th May 1919, in favour of the defen dant first party. It will be noticed that the mortgage bond was executed before the actual attachment of the land which was covered by the mortgage bond, was ordered by the Court. The mortgagee in due course obtained a decree and in execution of that decree he purchased on 5th May 1934, the 13 gandas share of the defendants second party and obtained delivery of possession in April 1987.

2. The case of the plaintiff that the mortgage bond was fictitious and fraudulent has not been accepted by the Courts below upon the ground that the plaintiff was made a party to the mortgage suit and the mortgage decree was passed in his presence. It must therefore be assumed that the mortgage decree was a valid decree and in execution full title passed to the defendant first party to the land covered by the mortgage bond. The serious question which was then agitated between the parties was as to whether by the execution purchase the defendant first party became the owner only of the land which was exclusively allotted to the 13 gandas share or also to the house which stood upon a portion of this land. The Courts below have concurrently come to the conclusion that as the house was attached to the land and as there was no reservation in the mortgage bond and in the sale certificate which was granted to the mortgagee auction-purchaser, the latter became the full owner of the house -. they "also accepted his case that the defendants second party was living in that house since the date of the auction purchase as a tenant of the defendant first party. In appeal Mr. Baldeva Sahay strenuously argues that the provision of Section 8, T. P. Act, has no application to an involuntary sale in execution of a decree. He also relies upon the decision of the Allahabad High Court in Umrao Singh Vs. Kacheru Singh and Others, where it was held that the residential house of a zamindari is a separate unit and in no sense a part and parcel of the proprietary right owned by him in the mahal so that on the transfer of the proprietary interest of the zamindar in execution of a mortgage decree against him his residential house in the abadi site, unless it is included in the mortgage itself, cannot pass to the transferee. Allsop J. took a contrary view.

3. In Asghar Reza Khan v. Mahomed Mehdi Hossein Khan (03) 30 I. A. 71 Lord Lindley in delivering the judgment of their Lordships made these observations with regard to the interpretation of a conveyance and a sale certificate. I am reading from page 564:

The conveyances of the plaintiffs ancestor Syad Lutf Ali Khan were made in 188,3 and 1894, and are set out in the record. The deed of 1883 contains no words of exception or reservation, and is ample in point of language to pass all Syad Haidar Rezas interest in the zamindary, including the land on which the bazar was situate. His interest in the houses on that land and in the profit rents derived from them would pass by the deed in the absence of words showing an intention to retain them ....

The share of Safdar Reza was sold under the decree of the Court, and the sale certificate of 18th December 1894 shows that all his interest in the property mortgaged by him was sold to the plaintiffs. The description in the certificate is again quite sufficient to pass his interest in the bazar in the absence of any words showing an intention to exclude it.

4. It should be pointed out that the mortgage bond in this case was executed on 25th April 1876, that is to say, before the passing of the Transfer of Property Act. In AIR 1927 135 (Privy Council) their Lordships had to consider the contention that as the result of a revenue sale of land in December 1919 held under Act 11 of 1859 the ownership of the house passed to the auction-purchaser. At p. 222 of the report it is stated that:

It was not disputed that if the plaintiffs case was based upon a conveyance by the late proprietor of the land, the house would pass with the land to the purchaser; but it was argued on behalf of the defendant that as the sale in question was under the Act 11 of 1859 it was merely a sale by the Collector of the Governments interest.

5. Their Lordships accepted this contention and came to the conclusion that the ownership of the building did not pass to the plaintiff by reason of the revenue sale. It is thus important to consider the terms of the mortgage bond and the sale certificate in the present case. We have had these two documents translated. The details of the mortgaged property given in the mortgage bond are:

13 gandas 4 kauries 14 bauries out of the entire 16 annas partitioned patti of 10 annas 15 gandas, pokhta Bhare in Mahal Sikandarpur Phariohh, Par-gana Bali... forming proprietary interests including Kamat, Khudkast lands, orchards, etc and all rights and interests appertaining thereto, which we, the executants have....

6. The same description is recorded in the sale certificate. Upon the interpretation of these two documents, it is clear to me that no words of exception or reservation are to be found in these two documents and that the words are! ample in point of language to pass all the interest of the mortgagor in the 13 gandas zemindary including the land upon which the, house was situate so that his interest in the house on that land has passed by the sale certificate in the absence of words showing intention to retain it. To adopt the words of their Lordships in Asghar Reza Khan v. Mahomed Mehdi Hossein Khan 30 Cal. 556

the share of the Kumars was sold under the decree of the Court and the sale certificate of 11th February 1937 shows that all their interest in the property mortgaged by them was sold to the mortgagee. The description in the certificate is again quite sufficient to pass their interest in the house in the absence of any words showing the intention to exclude it.

7. Mr. Baldeva Sahay, as stated above, placed very strong reliance upon the Full Bench case of the Allahabad High Court. It is enough to state that the facts of that case can be well distinguished. In that case the abadi upon which the houses in question stood was not partitioned and the mortgagor Umrao Singh only held an undivided share in it, and, therefore, by the auction sale the plaintiffs merely acquired an undivided share in the abadi and not the full ownership of any particular part of the abadi. Bennet J. said in his judgment that in these circumstances

the plaintiffs are not the owners of the sites, but merely of undivided shares in the sites. On this being pointed out, learned Counsel for plaintiffs had considerable difficulty in stating whether his claim was that the plaintiffs acquired the whole of the three houses u/s 8 or only undivided shares in. the houses. Either claim would lead to considerable confusion. But it appears quite clear to me that Section 8 is not intended to apply in this way to the case of a transfer of an undivided share in land. The section refers to a transfer of property and in para. 2 states where the property is land. We must therefore have a transfer of land and in such a case there will pass all things attached to the earth, that is to the land which is transferred. The sites of the houses have not been transferred. Therefore the houses attached to those sites have not been transferred. It is only where the sites had been transferred to the plaintiffs that the plaintiffs could claim that the houses attached to those sites were also-transferred under the provisions of Section 8.

8. In the present I have stated, even upon the findings of fact of the Courts below it has been found that the defendants second party were separately and exclusively in possession of the land upon which the house stood on the date when the sale took place in favour of the defendant first party. It is true that on the date of the mortgage the defendants second party were in possession of the undivided share in the lands appertaining to the entire patti of two annas odd but on the date of the sale as a result of a partition between the parties, the land on which the house stood fell exclusively to the share of the mortgagor, and, therefore, the security of the mortgage would now fasten upon that land which on partition was allotted to the mort-gagor so that the sale certificate passed the entire interest of the mortgagor in the land which was allotted to him, for 13 gandas odd share, and in the house which stood on the plots which fell into this exclusive share of the mortgagor. Mr. Baldeva Sahay relied upon the analogy of Section 37 of the Eevenue Sale Law, but that argument is, in my opinion, inadmissible in view of the decision of the Privy Council in 54 I. A. 218 which I have already referred to. For these reasons I am of opinion that the Courts below have taken a correct view. The appeal fails and must be dismissed with costs.

Beevor, J.

9. I agree.