Asutosh Mookerjee, J.

1. This is an appeal on behalf of the defendant in an actionin ejectment. The subject-matter of the dispute is homestead land within theBankura Municipality, originally held by one Gopal Chundra Mukerjee under aghatwal. In 1878, the Collector, id execution of a certificate under the PublicDemands Recovery Act, made against Gopal Chundra Mukerjee, sold his right,title and interest in the homestead. Dwarka Nath Mukerjee, now represented byhis sons, defendants-appellants, purchased the homestead, and in the salecertificate granted to him the land was described as rent-free. The purchasertook possession of the homestead and never "paid rent to the ghatwal; ithas, indeed, been found that although Gopal Chundra Mukerjee held under theghatwal, he never paid any rent up to the time when his interest was sold in1388, the ghatwal relinquished his office and his son, the present plaintiff,then an infant four years old, succeeded as ghatwal. Shortly before 1895, byagreement between the ghatwal, the Maharaja of Burdwan, who was the superiorzemindar, and the Government, the ghatwal relinquished the office on conditionthat the property should be treated as resumed by the state, to be settledpermanently with the Maharaja of Burdwan by whom it would be granted in Mokrarito the retiring ghatwal himself. This arrangement was carried out and in 1895,the plaintiff obtained the Mokrari Settlement from the Maharaja of Burdwan. In1902, the plaintiff attained majority. On the 16th June 1904, the plaintiffcommenced the present action to eject the defendants as trespassers. His casein substance is that Gopal Chundra Mukerjee had no transferable interest underthe ghatwal and that, consequently., Dwarka Nath Mukerjee, the father of thedefendants, did not acquire any valid title by his purchase at the certificatesale in 1878. This is controverted by the defendants, who assert that GopalChundra Mukerjee, along with his brother, had a transferable rent-free right inthe disputed property; they further contend that even if the alleged rent freeright is not established, they have acquired a good title against the plaintiffby estoppel and adverse possession. The primary Court has found on the evidencethat Gopal Chundra Mukerjee had no transferable right in the disputed lands andthat the doctrines of estoppel and adverse possession are of no assistance tothe defendants. The same view has been substantially accepted by the DistrictJudge. The result has been that the Courts below have concurrently decreed thesuit. On the present appeal, this decision has been assailed on behalf of thedefendants on two grounds: first, that the claim is barred by limitation, andsecondly, that the plaintiff is estopped from denying the title of thedefendants.

2. In support of the first ground, reliance has been placedupon the circumstance that neither Gopal Chundra Mukerjee nor Dwarka NathMukerjee ever paid any rent to the ghatwal. This, however, is clearlyinsufficient to constitute adverse possession, because mere non-payment of rentor discontinuance of payment of rent does not by itself constitute adversepossession. Madan Mohan Gossain v. Kumar Rameswar 7 C.L.J. 615; TroyluckhoTarinee v. Mohima Chunder 7 W.R. 400; Rungo Lall v. Abdool Guffoor 4 C. 314 : 3C.L.R. 119; Poresh Narain v. Kassi Chunder 4 C. 661; Musyatullah v. Noorzahan 9C. 808 and Prem. Sukh v. Bhupia 2 A. 517. It is further clear that in a suit ofthis description, Article 144 of Limitation Act must be applied. Time,therefore, runs from the date when the possession of the defendants becameadverse to the plaintiff. Now, although the term "plaintiff" asdefined in Section 2 includes a person from or through whom a plaintiff deriveshis right to sue, this does not affect the present plaintiff, who, as Chatwal,does not claim through his father as his predecessor. Ram Chunder Singh v.Madho Kumari 12 C. 484 : 12 I.A. 188. The plaintiff when he succeeded asghatwal was an infant and he has commenced the present suit within three yearsfrom the attainment of majority. The plea, of limitation cannot, therefore, besustained. In support of the second ground, it has been contended that theplaintiff now claims title from the Secretary of State for India in Council,and as the Collector, on behalf of the Secretary of State, represented the disputedhomestead to be saleable rent-free land when he enforced the certificateagainst Gopal Chundra Mukerjee, neither the Secretary of State nor theplaintiff deriving title from him can repudiate the position. This argumentraises a question of considerable nicety but even if the argument be assumedfor a moment to be well founded on principle, there are two preliminarydifficulties which the appellants must overcome before they can derive anybenefit from it. In the first place, the District Judge has observed that asthe land was included in the ghatwali tenure. Dwarka Nath Mukerjee, the fatherof the defendants, presumably knew the true state of facts. It has not beendisputed that if the true state of facts were known to Dwarka Nath Mukerjee orif he had ready means of acquiring a knowledge of the truth, neither he nor hisrepresentatives can invoke the aid of the doctrine of estoppel Carr v. Londonand N.W. Ry. Co. (1875) L.R. 10 C.P. 307 : 44 L.J. C.P. 109 : 31 L.T. 785 : 23W.R. 747; Proctor v. Bennis (1888) 36 Ch. D. 740 : 57 L.J. Ch. 11 : 57 L.T. 662: 36 W.R. 456 and Standish v. Boss (1849) 3 Ex. 527 : 19 L.J. Ex. 185 : 77 R.R.715. A difficulty however, is Created by the fact that the District Judge hasnot indicated the circumstance from which the presumption is drawn and theappellants assert that there is no evidence in support of the conclusion Afurther difficulty is caused by the fact that the defendants may reasonablycontend that they were misled by the definite representation as to the characterof the property and this is a sufficient excuse for the omission of Dwarka NathMukerjee to inquire into and to inform himself of the facts. Redgrave v. Hurd20 Ch. D. 1 : 51 L.J. Ch. 113 : 45 L.T. 485. In view of the two possibleaspects just mentioned, I am not prepared to hold, without fartherinvestigation that the question of estoppel does not arise. In the secondplace, no doubt, the only material on the record as to what took place in thecertificate proceedings is the sale certificate, and, as pointed out in AmanAli v. Mir Hossain 10 C.L.J. 605 : 4 Ind. Cas. 739 [LQ/CalHC/1909/229] the foundation of theestoppel must be laid on a representation made before and not after the sale.From this point of view, the defendants would have to produce the saleproclamation, and the sale certificate would not by itself be sufficient tosustain the plea of estoppel. I am not prepared, however, to hold on thisground that the plea of estoppel does not arise. It is well known that thedescription in the sale certificate is taken from the description of theproperty in the sale proclamation, and as no objection was taken in the Courtsbelow that the entry in the sale certificate did not by itself affordsufficient foundation for the plea of estoppel, the defendants would in fairnessbe entitled to an opportunity to produce a copy of the sale proclamation beforetheir plea was negatived. From this point of view, also, further investigationwould be necessary. I shall, therefore, now proceed to examine whether there isany substance in the plea of estoppel.

3. The argument upon the question of estoppel has beensought to be presented from two points of view. It has been suggested, in thefirst place, that when in 1888, the father of the plaintiff relinquished hisoffice as ghatwal, the properties reverted to the Crown, and the newlyappointed ghatwal received the grant qualified by the estoppel which binds theSecretary of State. In the second place, it has been suggested that in 1895when the present plaintiff as ghatwal relinquished his office, the propertyvested in the Crown, and the subsequent grantee, the Maharaja of Burdwan, tookhis estate qualified by an estoppel against the Secretary of State. It is notnecessary to consider at what precise point of time a possible estoppel couldtake effect against the Secretary of State, because I have arrived at theconclusion that, as a matter of law, no title by estoppel ever accrued in thiscase in favour of the purchaser at the certificate sale. The contention of theappellant is that, in the certificate proceedings, the Collector got thedisputed properties sold as the saleable rent-free homestead of Gopal ChundraMukejjee, and that consequently when the Collector himself obtained theproperty upon relinquishment by the ghatwal, he, could not contest the title ofthe execution purchaser. In support of this position, reliance has been placedupon the doctrine recognised in Section 43 of the Transfer of Property Act.This argument, in my opinion, is fallacious. It need not be disputed that if agrantor, who has no title or a defective title or an estate less than what heassumes to grant, conveys with warranty or covenants of like import, andsubsequently acquires the title or estate which he purports to convey, or,perfects his title, such after acquired or perfected title will enure to thegrantee or to his benefit by way of estoppel. Treviran v. Laurence (1704) 6Modern. 258; Hermitage v. Tomkins (1699) 1 Lord. Raymond. 729; In re Horton,Horton v. Perks (1884) 51 L.T. 420. This doctrine, however, can have nopossible application to the case before us In the case of a voluntary privatealienation, the deed, either expressly or by necessary implication, shows thatthe grantor intended to convey and that the grantee expected to become vested withan estate of a particular kind; the deed may consequently found an estoppelalthough it contains no technical covenants. This is clear from an examinationof the principle which underlies the doctrine that "an interest when itaccrues feeds the estoppel." Doe de Christmas v. Oliver (1829) 10 B. &C. 181 : 5 Man. & Ry. 203 : 8 L.J.K.B. 137 : 34 R.R. 358; Webb v. Austin(1829) 1 M. & G. 701 : 8 Scott. (N.R.) 13 L.J. C.P. 233; Hayn v. Moltby(1789) 3 T.R. 438; Hamill v. Murphy (1883) 12 L.R. Ir. 400: Laws of England byLord Halsbury Volume XIII Section 529. The case of an execution sale, however,stands on an obviously different footing. The decree-holder does not guaranteethe title of the judgment-debtor; the intending purchaser knows that under thelaw he can acquire nothing beyond the right, title and interest of thejudgment-debtor. No doubt, the decree-holder himself, who is bound to notifybefore the sale all encumbrances on the property about to be sold, cannotsubsequently set up against the execution purchaser a secret encumbrance in hisown favour. Boollub Sircar v. Kristo Coomar 12 W.R. 303 : 3 B.L.R.,A.C. 407;Munnoo Lull v. Choonee Lall 1 I.A. 144 : 21 W.R. 21; Doolee Chund v. OomdaBegum 24 W.R. 263; Nursing Narain Singh v. Roghoobur Singh 10 C. 609; SrimatiGiribala Debia v. Srimati Rani Mina Kumari 5 C.W.N. 497; Kasturi v.Venkatachalapathi 15 M. 412; Ram Chandra v. Jai Ram 22 B. 686; SheshgiriShanbhogi v. Salvador Vas 5 B. 119 and Husein v. Shankargiri 23 B. 119.

4. This estoppel, however, of which the execution purchasermay avail himself against the decree-holder, is based on the ground that it wasthe statutory duty of the decree-holder to notify before the sale all liens onthe property inclusive of those held by himself. That principle is clearly ofno assistance to the appellants. Even as regards the judgment-debtor, there hasbeen considerable divergence of judicial opinion as to whether the executionpurchaser can avail himself of an estoppel in respect of after acquired title.To take one illustration, though in Varnum v. Abbot (1815) 12 Mass. 474 : 7 Am.Dec. 87 it was held that the extent of an execution raises an estoppel, as muchas in the case of a conveyance, the contrary view, namely, that an executionsale of property not belonging to the judgment-debtor does not estop him fromasserting against the purchaser title subsequently acquired, has beenmaintained in cases of recognised authority. Emerson v. Sensom (1871)California. 552; Flenner v. Traveders Insurance Co. (1883) 89 Indiana. 164;Freeman v. Thayer (1852) 29 Maine 369; Meyendrof v. Frohner (1879) 3 Mont. 282;Frey v. Ramsoour (1872) 66 N.C. 466; Jentry v. Wogstoff (1832) 14 N.C. 370.Bigelow on Estoppel, 1890, page 396. It is clear, therefore, that there is noestoppel in this case as against the decree-holder. Consequently, thedefendants-appellants, as representatives of the purchaser at the certificatesale, cannot avail themselves of any possible estoppel against the Secretary ofState or against the plaintiff as grantee from him through the Maharaja ofBurdwau. It is further worthy of note that even if there had been any estoppelavailable against the Secretary of State, there could have been none againstthe plaintiff: none was created by reason of what happened in 1888, because theestate did not then vest in the Crown to be granted afresh to the plaintiff,nor was any created by reason of what happened in 1895, because the so-calledafter-acquired title of the Secretary of State was acquired by him on conditionthat a clear title would be granted to the Maharaja of Burdwan, as. zemindarand to the plaintiff as Mokarariiar under him. The doctrine does not applywhere an after-acquired title is taken by the grantor under a conveyance madeto him as a conduit and for the purpose of vesting the title in a third person.Condit v. Bigalow (1903) 64 N.J. Eq. 504 : 54 at Atlantiv. 160; Philippi v.Leed (1893) 19 Colo. 246 : 35 Pac. 540; Sutton v. Jenkins (38). From everypossible point of view, therefore, the plea of estoppel proves unsustainable.

5. The result is that the decree of the District Judge mustbe affirmed and this appeal dismissed with costs.

Beachcroft, J.

6. I agree.

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Prosonna Kumar Mukherjee and Ors. vs. Srikant Rant (02.07.1912 - CALHC)