Banerji and Tudball JJ.
1. This appeal arises out of a suit brought by the plaintiffs appellants to enforce a mortgage of the 27th of December, 1891, executed by the first two defendants. Defendants Nos. 4 and 5 are puisne mortgagees of the property mortgaged, and defendants Nos. 6 and 7 are the sons of defendant No. 5. The property mortgaged, which the plaintiffs seek to sell, is what is known in the Gorakhpur district as a madndaddri tenure. The courts below have held that such a tenure is not saleable and otherwise transferable, and that a suit for the sale of such a tenure is not maintainable. It is admitted that if the plaintiffs cannot obtain a decree for Bale, they are not entitled to a decree for money only as more than six years had elapsed from the date on which the mortgage money became due before the institution of the suit. The only question which we have to consider is whether a mdndaddri tenure is transferable and a decree can be made for the sale of such a tenure. It is not contended on behalf of the plaintiffs that the mortgagors had any proprietary interest in the mortgaged property. There is no evidence to show how mdndaddri tenures originated, and the learned vakil for the appellants does not contend that there is evidence on the record to show that a mandaddri tenure is transferable. It is admitted that the only right, which the holder of such a tenure has, is the right to occupy it as an occupancy tenant. If the land in question is an occupancy holding, it is not transferable and is not liable to sale in execution of a decree. Section 9 of Act XII of 1881, which was in force at the time when the mortgage in question was executed, clearly provides that an occupancy holding is not transferable in execution of a decree. If it is not transferable in execution of a decree, a court cannot make a decree ordering the sale of such property. The nature and incidents of a mdndaddri tenure were considered by this Court in an unreported case referred to in judgment of the court below, namely, case No. 2163 of 1886, decided by Straight and Brodhurst, JJ. Those learned Judges held that a mdndaddri tenure was nothing more than an occupancy holding, and was not therefore transferable. We see no reason to come to a different conclusion. The courts below were, therefore, right in refusing to make a decree for sale.
2. The only other point urged before us was that the defendants were estopped from raising the plea that the property mortgaged by the persons from whom they derived title was not capable of being mortgaged. We are unable to accede to this contention, inasmuch as both parties must be deemed to have known the law, and if the plaintiffs took a mortgage of the property which was not transferable under the law with the knowledge that it was unlawful for the mortgagors to make-such a mortgage, they cannot be allowed to raise the plea of estoppel. The appeal fails and is dismissed with costs.