ACHHAIBAR SINGH Vs. RAJMATI

JUDGEMENT

(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.