RAM LAL Vs. SHIAMA LAL

JUDGEMENT

(1.) This appeal is bound to succeed. The plaintiffs are mortgagees under a simple mortgage dated 19 January 1920. They obtained as their security besides other properties, two groves. The groves were transferred by way of mortgage and sale in favour of the defendants other than the mortgagors who figured as defendants 1 and 2 in the suit. One of the transferees raised the plea that the plaintiffs were not entitled to bring the groves to sale. The reason was that at the date of the mortgage, the mortgagors Madho Singh and Bahadur had not got a sale deed in respect of the two groves in their favour. The sale deed in their favour was executed five days later on 24 January, 1920. It appears that a certain Hindu owned the groves. On his death, they were inherited by his wife Mt. Sukhrani. Mt. Sukhrani sold the groves to one Azizuddin. The mortgagors claiming as reversioners contested the sale, but ultimately, finding that they could not successfully contest the sale, they agreed with Azizuddin to purchase the groves. They had to pay a certain amount of money to Azizuddin, and to raise this they made the mortgage in question. These facts are recited in the mortgage deed and the mortgage deed states that a sale deed would be executed in favour of the mortgagors. . The argument therefore is that at the date of the mortgage, the mortgagors had no interest in the property sold and therefore these groves could not be so brought to sale. This argument of the contesting defendants found favour with the Court below hence the appeal by the plaintiffs.

(2.) We find as a matter of fact that the money was advanced on the security of the property that was going to be purchased. We find that no third parties (interest intervened between the execution of the security and the execution of the sale deed with respect to the security. There is no rule of law which prevents the mortgagee from selling the property, in the circumstances stated above. It was argued for the respondent that Section 43, T. P. Act, did not apply in terms. Possibly it does not. The case of Mulraj V/s. Indar Singh , was cited on behalf of the respondent. But that case is distinguishable. There, it was pointed out that to allow the particular party to rely on Section 43 and to take his stand on it would mean that he would be allowed to defeat the provisions of Section 6, T. P. Act. In this (case the mortgagors were not transferring their future right to succeed, which would be a mere possibility. In this case they (actually entered into an agreement with Azizuddin that Azizuddin would sell his rights to them and they would purchase it. By agreement Azizuddin was declared to be the owner of the property and Azizuddin had every right to sell the property.

(3.) We hold that on the principle of "feeding the estoppel" the plaintiffs are entitled to enforce their mortgage against the groves. .