JUDGMENT
1. This second appeal arises out of a suit brought by the plaintiff-appellant for sale of certain property on the basis of a mortgage. The property was mortgaged to him by one Behari Das Goshain. The mortgage was a simple mortgage. Subsequently Behari Das sold the equity of redemption to Mt. Rajmati who is the mother of the defendant-respondents.
2. One plea taken in defence was that the property being waqf property, Behari Das, the mortgagor, was not entitled to mortgage it. This plea was repelled by the trial Court on two findings. One finding was that the property was not waqf property, and the second was that in any case the defendants having obtained possession of the property from their mother who got the equity of redemption from Behari Das were estopped under Section 65(a), T.P. Act, from denying the right of Behari Das to mortgage the property.
3. In first appeal the Subordinate Judge set aside the finding of the trial Court as to the property being waqf property. Whether he considered the plea of estoppel is not clear. He has made some remarks which appear unintelligible and at any rate have not been relied upon by the respondents' counsel and with good reason. In this second appeal the main point taken is that the respondents were in possession through their mother and any interest acquired by their mother was the interest of Behari Das as it existed subsequent to the mortgage. Therefore, neither their mother nor the defendants themselves can take up a position which it was not open to Behari Das as mortgagor to take. Now Behari Das either had or had not power to make the mortgage. Assuming that he had not power still he could not, in a suit by the mortgagee, take up the position that he had no power to transfer the property by mortgage. That is clearly barred by Section 65(a), T.P. Act. His successors-in-interest are in no better a position.
4. Respondents' counsel has attempted to argue in two ways. He first of all maintained that the respondents, although they were the sons of Mt. Rajmati, had somehow got possession of the property quite independently of their mother. This plea was not set up in the written statement and it would take a great deal to persuade us that when their mother was in possession under her sale-deed the respondents, her sons, got possession in some way independently of their mother. This view of the case was never considered by the lower Courts and obviously because it was neither maintained nor was maintainable.
5. A second argument is that the estoppel referred to in Section 65(a), T.P. Act, is an estoppel that will only operate personally against the mortgagor and not against a subsequent transferee of the mortgagor. In support of this contention we are referred to the case of Ranga Srinivasa Chari v. Gnanaprakasa Mudaliar [1907] 30 Mad. 67. It was there held that the implied contract mentioned in Section 65(c), T.P. Act, that the mortgagor will pay all public charges accruing due in respect of the mortgaged property so long as the mortgagee is not in possession is an implied contract which will not be binding on a subsequent transferee of the equity of redemption. Whether that case was rightly decided on this point it is unnecessary to consider because the liability to pay public charges would arise subsequent to the mortgage. The implied contract that the mortgagor has a right to sell the property that he mortgages is one that arises at the moment of the execution of the mortgage. It has been held in Debendra Nath Sen v. Abdul Samed [1909] 10 C.L.J. 150 (at 164) wherein reliance is placed on the English case of Doe v. Stone [1846] 3 C.B. 176 that it is no more open to a person standing in the shoes of the mortgagor than to the mortgagor himself to set up as against the mortgagee any preceding estate which he himself had created. That is to say that a successor-in-interest of the mortgagor cannot deny that the estate which he mortgaged was vested in him. We would also refer to the last paragraph of Section 65, T.P. Act, which mentions that the right of a mortgagee to take advantage of the implied contract stated in Section 65 can be enforced by every successor-in-interest of the mortgagee. This provision would be of no effect if it was only the mortgagor personally against whom they would be invoked. For the above reasons we accept this appeal and restore the decree of the trial Court with costs to the appellant both in the lower Court and in this.