SHEIKH AHMED BHAUDDIN PARKAR Vs. BABU DEVJI ZUJAM

JUDGEMENT

(1.) It is urged on behalf of the appellants, the descendants of the original mortgagee, that the plaintiff's are estopped from denying that they had a right to transfer the property to the mortgagees under the sale-deed, Exhibit 51, and reliance is placed on the ruling in Jayram V/s. Narayan (1903) 5 Bom. L.R. 652 and Section 55, Clause 2, of the Transfer of Property Act.

(2.) The decision in Jayram V/s. Narayan proceeds on the principle of estoppel as between the mortgagor and the mortgagee recognised in the ruling in Narayan Khandu Kulkarni V/s. Kal-gaunda Birdar Patel (1889) I.L.R. 14 Bom. 404, 407 that the mortgagor could not have questioned his own right to mortgage the property in dispute, and has not extended the principle of estoppel as between a vendor and a purchaser. Section 55, Clause (2) of the Transfer of Property Act relates to an implied covenant by a vendor that he has power to transfer the property and in case of a breach of the covenant the vendor exposes himself to a suit for damages by the purchaser. It is urged that according to Caspersz on Estoppel, paragraph 210, a vendor will not be permitted to contend in his own interest as against the purchaser that he had no right to sell the property and reliance is placed on the case of Bhagirath Changa V/s. Sheikh Hafizuddin (1900) 4 C.W.N. 679. The question in the present case is whether the sale of the equity of redemption of the occupancy rights of the mortgagor by Exhibit 51 was valid. The words "without the consent of the Khot" in Section 9 of the Khoti Settlement Act were inserted by Bombay Act VIII of 1912 and were not in existence in Section 9 as it stood in 1882 when the sale-deed, Exhibit 51, was passed by the mortgagors to the mortgagee. The Bale, therefore, of the occupancy rights would be invalid. Under Section 9, the rights of occupancy tenants would not be transferable subject to two exceptions, (1) where the right to transfer is created by custom under the conditions specified in Section 9, and (2) where the Khot has in granting a lease conferred upon the lessee the right of transfer at the time of creating the tenancy. It if neither alleged nor proved in this case that either of these exceptions exists in the present case. Further, the words "without the consent of the Khot" did not appear in Section 9 as it stood in 1882. The sale of the occupancy rights, according to the decision in Mahadev V/s. Mahadaji must be treated as illegal and void. The point of estoppel was not taken in the lower Courts or in the memorandum of appeal to this Court. Assuming, however, that the principle of estoppel applies as between a vendor and a purchaser, there could ba no estoppel against an Act of Legislature. In Shridhar V/s. Babaji where the defendant purported to resign his occupancy rights in Khoti lands to the plaintiff who was one of the Knots and at the same time attorned to the plaintiff by executing a lease for a term of five years, it was held that the resignation was not valid under Section 9 of the Khoti Act as the consent of all the Khots had not been obtained, that the transaction could not be regarded as a resignation, and that the foundation of the plaintiff's title was illegal and the plaintiff was not entitled to estop the defendant from showing the illegality of the title so founded. There can be no estoppel against an Act of Parliament or against an Act of Legislature and the principle of estoppel cannot be invoked to defeat the plain provisions of the Statute. See Jagadbandhu Saha V/s. Radha Krishna Pal (1909) I.L.R. 36 Cal. 920 and Abdul Aziz V/s. Kanthu Mallik (1910) I.L.R. 38 Cal. 512. As between a mortgagor and a mortgagee the principle of estoppel which is otherwise clearly recognised is inapplicable where the mortgage is void as contrary to a Statute. See Mahamaya Debi V/s. Haridaa Haldar (1914) I.L.R. 42 Cal. 455. We think, therefore, that the plaintiffs are not estopped from contending that the sale of the equity of redemption under the sale-deed, Exhibit 51, is illegal and void.

(3.) The next question is whether the decision in suit No. 243 of 1989 1918 operates as res judicata. The learned Subordinate Judge in the previous suit found that the sale-deed was binding on the though the lands were Khoti, and that the mortgagees proved adverse possession for more than twelve years, and that though the sale-deed was invalid under Section 9 of the Khoti Act, the transfer did not annihilate the occupancy tenant's rights and the transferee of the occupancy right would be entitled to claim that he had by the transfer obtained such rights as an ordinary tenant could give, and he relied in support of his conclusion on the rulings in Dayamayi V/s. Ananda Mohan Roy Chowdhury (1914) I.L.R. 42 Cal. 172, F.B. and Behari Lal Ghose V/s. Sindhubala Dasi (1917) I.L.R. 45 Cal. 434. The learned Judge on appeal in the previous litigation held that the sale-deed was binding on the mortgagors and though the occupancy rights were not transferable, the transferee from the occupancy tenant could claim that he had by the transfer obtained the rights of an ordinary tenant, and that the mortgagees were in possession even before the purchase and their possession since 1882 was clearly adverse to the present plaintiffs and defendants Nos. 13 to 15. In second appeal, the High Court awarded possession to the mortgagees not on the strength of their title as mortgagees but on the strength of their title under the sale-deed. Though the question as to whether the right to redeem under the mortgage of 1870 was barred by the sale-deed of 1882 and the question as to the validity of the sale- deed as affecting the right to redeem were not decided and left open, the defendants Nos. 1 to 12 in this case were awarded possession on the strength of their title as purchasers. The title, therefore, to possession under the sale-deed, Exhibit 51, was decreed in favour of the present defendants Nos. 1 to 12 in the previous litigation. The lower Court in this case was of opinion that in the previous litigation the decree for possession in favour of the then plaintiffs was upheld apparently on the sole ground that the plaintiffs had long been in possession and that they were entitled to regain that possession as mortgagees. We think that the lower appellate Court has misunderstood the effect of the judgment in the three Courts in the previous litigation. Defendants Nos. 1 to 12 were awarded possession not as mortgagees but on the strength of the sale-deed, Exhibit 51, and so far as the previous decrees awarded possession to the defendants Nos. 1 to 12 on the strength of the sale-deed, the decision, in our opinion, operates as res judicata in favour of defendants Nos. 1 to 12. The sale-deed, Exhibit 51, therefore, according to the previous litigation conveys rights to possession as against the plaintiffs and defendants Nos. 18 to 15. The plaintiffs and defendants Nos. 13 to 15, therefore, cannot in this suit for redemption recover possession of the property by redemption of the mortgage.