MUHAMMAD SHERIFF SAHIB Vs. SAYYED KASIM SAHEB

JUDGEMENT

(1.) IN this second appeal, the only question arising is whether the mortgagee is estopped from denying the right of the mortgagor to the mortgaged properties on the date of the mortgage. The lower appellate Court held in favour of such an estoppel. This can be supported on the analogy of Section 65, Clause (a), T.P. Act. However Mr. T.L. Venkatarama Ayyar, the learned Advocate for the appellant, urges that his plea must be construed to be a plea, whereby he wants to show that the mortgagor who executed the mortgage deed was only a benamidar for one Virappa Mudaliar, the real owner. He says, that the appellant (the mortgagee's son) is not estopped from setting up such a plea. The decision in Kuppukonan v. Thirugnasambandam Pillai (1908) 31 Mad 461 is in support of this contention, if what is stated therein as regards lessor and lessee is extended to a mortgagor and mortgagee. Now, assuming that he is not estopped from making out this plea, and also granting that such a plea has been proved, what is the position? This suit which is for redemption can be maintained by the benamidar as he was the executant of the mortgage deed. A benamidar for the mortgagee can sue for sale on the mortgage bond: Surendranatha Mitra V/s. Kshitindra Mohan Mitra AIR 1919 Cal 314. But here, the suit was filed by the transferee from the heirs of the alleged benamidar. The question is whether anything survives to the heirs or their assignees after the death of the benamidar. IN the decision of the Privy Council in Raja of Deo V/s. Abdullah AIR 1918 PC 35 their Lordships, dealing with the status of a benamidar, have observed at pp. 918 and 919 (of 45 Cal) that he would be a trustee for the real owner, and his son could succeed to his trusteeship. This shows, that the heirs of the benamidar, would, by reason of some interest devolving on them, be entitled to maintain a suit of this kind. The present suit is not liable to be dismissed.

(2.) IT is argued that the alleged real owner's heir has given evidence in this case, from which it can be inferred that she is not willing to the suit being maintained by the plaintiff. Reference is made to Maung San V/s. Maung Chan Tha AIR 1930 Rang 130 a decision of a single Judge. I am not inclined to hold, that by reason of anything which can be inferred from that evidence, the plaintiff can be nonsuited. The remedy of the real owner, on establishing his or her right, stands (unaffected. In the result this second appeal is dismissed with costs of respondent 1.