1. This appeal arises out of a suit in which the plaintiff seeks to sell certain property which was mortgaged to him. The mortgage was made in the year 1903 and consisted of two rooms (No. 35 and No. 36). The mortgage was in form usufructuary. It is admitted that the mortgagor put the mortgagee into possession. It is admitted that the mortgagee's possession has never been disturbed, but the plaintiff alleges that in the year 1905 (that is two years after the mortgage and 12 years prior to the institution of the present suit) be discovered that there was a defect in the mortgagor's title to one of the rooms, namely, No. 36, and that the mortgagor's title to No. 35 was only to the extent of two-thirds. He alleges that having made this discovery he went to the persons whom he supposed to be the owners of No. 36 and the owners of the one-third of room No. 35, and that he took benami usufructuary mortgages of No. 36 and of one-third share in room No. 85. He does allege in his plaint that after he had taken these mortgagee, he called the attention of the defendant to the defect and asked for redress but the mortgagor paid no heed. He does not state when this was done or what was the nature of the redress which he asked for. There is no allegation in the plaint that as soon as the alleged defects were discovered, the plaintiff asked his mortgagor either to return him his money or to give him further security. The relief claimed by the plaintiff is somewhat startling. He asks that he should be entitled to realise his claim not by the sale of the entire property but only by the sale of the two-thirds of room No. 35 to which he admits the mortgagor's title. Under the mortgage the income of the rooms was to go towards the payment of the interest on the principal sum. The plaintiff has quietly applied this income in reduction of the mortgages which he obtained from third parties, and not against tie interest on the mortgage and the debt. The first Court dismissed the plaintiff's suit. The lower Appellate Court set aside the decree of the first Court and remanded the case, apparently thinking that evidence would have to be gone into.
2. If on the plaintiff's own allegations he was not entitled to maintain the suit, the Court of first instance was justified in dismissing the suit even without going into evidence, and it is from this aspect that we are considering the present appeal. Section 68 of the Transfer of Property Act prescribes under what conditions a mortgagee in possession can ask for the sale of the mortgaged property. The provision is that where the mortgagee being entitled to possession of the property, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any other person, and also where by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property has been wholly or partially destroyed or the security is rendered insufficient as defined in Section 66, the mortgagee may require the mortgagor to give him within a reasonable time another sufficient security for his debt and if the mortgagor fails to do so, may sue him for the mortgage money.' It is quite clear on the admitted facts that possession was given to the mortgagee and that he was not disturbed by the mortgagor or any other person. The mortgaged property has not been wholly or partially destroyed and it seems to us more than doubtful whether the alleged discovery of some defect of title is a 'rendering of the security insufficient' within the meaning of the section. Even if it is, it was then the duty of the mortgagee to come to the mortgagor and to ask him to give him fresh security. It is admitted that this was never done--at least not until after the mortgagee had gone to the rival claimants to the property and had secretly taken mortgages from them. It seems to us that nothing could be more inequitable than the conduct of the plaintiff-mortgagee in the present case. He clearly had no right to take these secret mortgages and his bona fides may very must be doubted by the fact that instead of coming to the mortgagor, when be alleges he discovered the defect, he did not do so until after he had entered into transactions with third parties which were calculated to prejudice very much the position of the mortgagor. We think that the Court of first instance was quite correct in dismissing the plaintiff's suit. We allow the appeal, set aside the order of the Court below and restore the decree of the Court of first instance with costs in all Courts.