1. In this case, the plaintiff sued to redeem the mortgage in favour of the defendants as the purchaser from Bai Jivi who claimed to be the heir of Bat Kashi, the original mortgagor, by virtue of Bai Kashi's will, Exhibit 17, and also on the ground of her natural kinship to the said Bai Kashi. Jagannath, the husband of Bai Kashi, died about fifty years ago, leaving behind him his widow Kashi, his brother Kasandas, and Kasandas's wife Ratan. A few months after Jagannath, Kasandas died and Ratan the widow of Kasandas got all the property of the two brothers Kasandaa and Jagannath. Ratanbai, the widow of Kasandas, mortgaged three survey numbers, including 4 acres and 37 gunthas of survey No. 153 on June 9, 1873. On Eatanbai's death, Bai Kashi got all the lands entered in her name on March 7, 1885. She was in possession of 5 acres and 2 1/2 gunthas of survey No. 153 which she mortgaged by Exhibit 19 for Rs. 499 in favour of defendant No. 1 and the father of defendant No. 2. Bai Kashi, on January 12, 1903, bequeathad her property to Bai Jivi the daughter of her brother Narbheram of Kaswa and died six months after the will. Bai Jivi sold her right, to the present plaintiff' on August 24, 1921. The plaintiff has brought this suit for redemption.
2. The learned Subordinate Judge held that the entries in the record of rights showed that the lands stood in the name of Bai Kashi, that defendant No. 1 as mortgagee cannot dispute Kashi's title, and that though Bai Manchha, the widow of Bai Patlar J. Kashi's husband's sister's son, was in existence, Bai Jivi was entitled to the property by virtue of the will of Bai Kaahi, and was, therefore, entitled to redeem the mortgage. The learned Subordinate Judge, therefore, passed a decree in favour of the plaintiff who was the purchaser from Bai Jivi.
3. On appeal, the learned District Judge held that the propertydid not bslong to Bai Kashi absolutely but she inherited the property as the widow of a gotraja sapinda that the inheritance must be traced to Bai Kashi's brother-in-law Kasandas, that Bai Manchha, the widow of the last male owner's Bister's son, being the widow of a bandhu was not entitled to succeed, that Bai Jivi, who was the last male owner's deceased brother's widow's brother's daughter, was not entitled to inherit, and that the property would go by escheat to Government, and, therefore, the plaintiff was not entitled to redeem this property. He further told that tin property was not comprised in the will of Bai Kashi, and that even if it was dealt with by the will of Bai Kashi, the will was invalid with regard to the property inherited by Bai Kashi as the widow of a gotraja sapinda.
4. It is urged on behalf of the appellant that the mortgagee is estopped from denying the title of his mortgagor who mortgaged the property for 99 years. It was held in Hillaya Subbaya v. Narayanappa Timmaya I.L.R (1911) Bom. 185: 13 Bom. L.R. 1200 that as between a mortgagor and his mortgagee, neither can deny the title of the other for the purposes of the mortgage, and that a mortgagor cannot derogate from his grant so as to defeat his mortgagee's title, nor can the mortgagee deny the title of his mortgagor who mortgaged the property. In that case, a Hindu widow had sold the property to another person who mortgaged it to the plaintiff', and the reversioner colluding with the sons of the purchaser from the widow 1 obtained possession of the property and contended that the alienation by the widow was invalid for want of necessity and was not binding upon him, and it was held that the reversioner having come into possession by collusion with the purchaser from the widow who mortgaged the property to the plaintiff, the reversioner was bound by estoppel in the same way as the mortgagor from denying the title of the mortgagee. In Mahamaya, Debi v. Haridas Haldar I.L.R (1914) Cal. 455 it was held that the mortgagor, even when acting in a public capacity and not for his own benefit, is estoppel from denying his title, and cannot set up a defence for himself against the mortgagee, that the property so mortgaged is Patkar, J. trust property which he had no right to mortgage, Similarly, a mortgagee cannot be allowed so to frame his suit as to draw into controversy the rights of strangers to the transaction who have set up a title paramount to that of the mortgagor and the mortgagee. See Jaggeswar Dutt v. Bhuban Mohan Mitra I.L.R (1906) Cal. 425.
5. I may refer in this connection to the following passage in Coote's Law of Mortgages, 9th Edition, Vol. II, page 1417 :-
The mortgagee is bound to reconvey the estate to the mortgagor or those, deriving title under him, and is estopped from denying the mortgagor's title. This rule is thus stated by Lord C'ottenham in Tasher v. Small (3):-' A mortgagee can never refuse to restore to his mortgagor, or those who claim under him, upon repayment of what is due upon the mortgage, the estate which became vested in him as mortgagee. To him it is immaterial, upon repayment of the money, whether the mortgagor's title was good or bad, He is not at liberty to dispute it any more than a tenant is at liberty to dispute his landlord's title.'
The Court will act upon a prima facie title shown by the plaintiff, however complicated, if it be supported by satisfactory evidence, and be uncontradicted, except by a mere allegation of on adverse claim; considering that the only matter determined is the right of redemption, the judgment for which will not hinder an adverse claimant from asserting his title in another proceeding.
See Fisher on Mortgage, 6th Edition, page 706, paragraph 1377.
6. The defendants took the mortgage for 99 years from a Hindu widow, and cannot be allowed to contend that she had no right to mortgage the property for 99 years or beyond her lifetime. No doubt, there is no clear evidence in this case to show that Bai Kashi got an absolute title to this property, but the mere fact that the widow is found in possession of property, of the acquisition of which no account is given, does not necessarily give rise to the presumption that she has inherited it as a widow. See Diwan Ran Bijai Bahadur Singh v. Indarpal Singh (1899) L.R. 26 IndAp 226 : 2 Bom. L.R. 1. Even though the property may have belonged originally to Kashi's husband and her brother-in-law, the property may have been given to her absolutely by way of a family arrangement between her and her brother-in-law after the death of her husband. There is no evidence to show that the property was given to her for maintenance and not absolutely except the recital in the boundaries in Exhibit 65. The property was entered in her name and she purported to deal with the property as owner and mortgaged it for 99 years in favour of the defendants. In the absence of any evidence to show that Bai Kashi inherited this property as a Hindu widow, it must be assumed that she was entitled to deal with the property as owner and this presumption receives strength from the conduct of the defendants in accepting the mortgage from her for 99 years. For the purposes of this case, therefore, it must be presumed that Bai Kashi was entitled to the property in her own right.
7. The next question is whether Bai Kashi dealt with the property in suit by her will in favour of Bai Jivi, I agree with the view of the lower Court that the disposition by Bai Kashi in her will related only to her self-acquired properties which were of her full ownership and which she had power to dispose of in any way she liked, and the 5th sub-clause of Clause 4 of the will, which referred to any property belonging to her that might have been omitted in the above statement, related to the properties which were her self-acquired properties, There is no evidence to show that this property was inherited by Bai Kashi as a Hindu widow, nor is it shown that it was acquired by her personal labour and exertions. Under these circumstances, it is doubtful whether the property in suit which belonged to her husband's family and which might have come to her absolutely by some family arrangement between her and her brother-in-law was disposed of by her will, I am, therefore, of opinion that even if Bai Jivi is not entitled to the property by virtue of the will of Bai Kashi, the question still remains whether she is not entitled to the property as the heir of Bai Kashi. The property not having been shown to have come to Bai Kashi as a Hindu widow, the inheritance must be traced to her, and Bai Manchha, the widow of bandhu, of her husband, would not be entitled to inherit the property. But, Bai Jivi, who is the daughter of her brother, is clearly her blood relation and would be entitled to succeed in preference to the Grown. On failure of her husband's heirs the stridhan of the widow would go to her blood relations in preference to the Crown. See Kanakammal v. Ananthamathi Animal I.L.R (1912) Mad. 293; Ganpat Rama v. Secretary of State for India I.L.R (1920) Bom. 1106: 23 Bom. L.R. 462; and Narayan v. Lakshman : AIR1927Bom456 . I think, therefore, that the plaintiff v purchasing from Bai Jivi is entitled to redeem.
8. In the record, of rights, Bai Jivi has been described as the heir of the last holder Bai Kashi, and in the mutation register, Exhibit 6, the present plaintiff is shown as purchaser from Bai Jivi. The present plaintiff is, therefore, presumably entitled to redeem as a purchaser from Bai Jivi, who would be an heir before the property goes by escheat to the Crown.
9. This decision would not be binding on any preferential heir of Bai Kashi who might conclusively establish his right hereafter. For the purposes of this case, the plaintiff has proved his title to redeem the property and is, therefore, entitled to succeed.
10. I would, therefore, reverse the decree of the lower appellate Court and restore that of the Subordinate Judge, and would make the instalments of Rs. 200, Rs. 150, and Rs. 149, payable on July 1, 1928, 1929 and 1930, respectively. Parties to bear their own costs in this Court and in the lower appellate Court.