SAKHIUDDIN SAHA Vs. SONAULLA SARKAR

JUDGEMENT

(1.) This is a suit brought by the plaintiffs as mortgagees to enforce their security. Plaintiff No. 12 is one of the two original mortgagees and plaintiffs Nos. 1-11 are the heirs and the successors of the other. The defendants Nos. 1-3 are the mortgagors. Subsequent to the mortgage defendants Nos. 4, 5 and 6 purchased a portion of the mortgaged property and defendant No. 7 took a puisne mortgage of the remainder. In connection with those transactions, however, it has been found, and cannot now be disputed, that the plaintiffs Nos. 1, 2 and 12 led the defendants Nos. 4-7 to believe that the whole property was unencumbered. The position, therefore, is that the plaintiffs Nos. 1, 2 and 12 are precluded by the doctrine of estoppel from setting up their rights under the prior mortgage as against those defendants.

(2.) In that state of things the courts below have concurred, in dismissing the suit so far as the plaintiffs Nos. 1, 2 and 12 are concerned and in making in favour of the remaining plaintiffs a mortgage decree in the usual form entitling them to sell the whole of the mortgaged property in satisfaction of their share of the original mortgage debt.

(3.) The plaintiffs have appealed to this Court and the first point which arises is free from difficulty.