D. Chatterjee, J.
1. An occupancy holding, which has been found to be not transferable without the consent of the landlord, was mortgaged to the plaintiff. Defendant No. 1, who is the heir of the mortgagor, sold a part of this holding to defendant No. 6 with the consent of the landlord, who subsequently gave a fresh lease to defendant No. 6 at an enhanced rent. On a suit being brought on the mortgage, the defendant No.6 pleaded that the mortgage was void, as the holding mortgaged was not transferable without the consent of the landlord, and no such consent had been obtained.There being a difference of opinion as to whether defendant No. 6 was estopped from pleading the non-transferability of the holding the question has been referred to me under Section 98 of the Civil Procedure Code. I shall in this Judgment call defendant No. 1 the mortgagor, and the defendant No. 6 the appellant.
2. It is contended by the learned vakil for the Appellant that there can be no estoppel against a statue, and as an occupancy holding is not transferable under the Bengal Tenancy Act, there can be no estoppel from pleading what the statute provides. The statute, however, does not provide either that these holdings are transferable or not transferable, but leaves the question to be decided by local usage or custom: see Sections 178 and 183. The existence or otherwise of the custom or usage is a fact to be pleaded and proved, and I do not think that the principle relied on has any application to the present case. It is next contended that the purchaser is not a representative of the mortgagor within the meaning of Section 115 of the Evidence Act, as he has derived his title practically from the landlord alone, without whose consent the sale would have passed nothing. The landlord alone could not, however, have given him a title. Any grant by the landlord alone during the subsistence of the tenancy of the mortgagor could not entitle him to the possession of the holding. There is some controversy in the books as to whether a sale of a portion of an occupancy holding confers any title on the purchaser, and the matter is under consideration by the Full Bench. I would, however, take it for granted that the mortgagor alone could not confer any title, and neither could the landlord by his own act and without the concurrence of the mortgagor. The two therefore joined to pass such title as the appellant acquired. In this view the appellant has derived some title from the mortgagor, although he has acquired an additional title from the landlord, and that extent at least he must be considered a representative of the mortgagor. The mortgagor was bound by his deed of mortgage not to assert, against the mortgagee that he had no right to mortgage; and the appellant, who derived his title, at least in part, from the mortgagor, cannot be allowed to make a like assertion.
3. Against this view of the law the learned vakil for-the appellant has relied on two cases--(i) an unreported decision of Ghose and Pratt JJ., in appeal from Appellate Decree No, 35 of 1904, Krishna Lal Saha v. Bhairab Chandra Rahat (1905) 9 C.W.N. CCXLVIII and (ii) a decision of Rampini, Offg. C.J., and Ryves J., in Asmatunnessa Khatun Saheba v. Harendra Lal Biswas (1908) I.L.R. 35 Calc. 904 : 12 C.W.N. 721. In the first case an auction-purchaser of the interest of the mortgagor in an occupancy holding, who after his purchase obtained recognition from the landlord, was held to be not estopped from pleading the non-transferability of the holding to a suit by the mortgagee on his mortgage bond; the learned Judges said that the defendant No. 2 (the auction-purchaser of the holding) stood on a higher ground independent of the purchase, and could not, therefore, be estopped from raising the plea of non-transferability. In the second case the landlord himself purchased a mortgaged holding in execution of a money decree, and then took the plea in a suit by the mortgagee on his mortgage, and was held entitled to do so.
4. I do not think it would be right to distinguish these cases as cases of purchase by auction sale; for although there were some cases in the books see Lala Parbhu Lall v. Mylne (1887) I.L.R. 14 Calc. 401. Gour Sundar Lahiri v. Hem Chunder Chowdhury (1889) I.L.R. 16 Calc. 355, 360 Bashi Chunder Sen v. Enayet Ali (1892) I.L.R. 20 Calc. 236 which held on the authority of certain dicta of the Judicial Committee see Anundo Moyee Dosses v. Dhonendro Chunder Mookerjee (1871) 14 Moo I.A. 101, 111. Dinendronath Sannyal v. Ramcoomar Ghose (1881) L.R. 8 I.A. 65 : I.L.R. 7 Calc. 107. that estoppels 'binding upon the judgment-debtor were not binding' upon the auction-purchaser, the matter has been finally set at rest by the Judicial Committee itself in the case of Mahomed Mozuffer Hossein v. Kishori Mohun Roy (1895) I.L.R. 22 Calc. 909 : L.R. 22 I.A. 129. in which their Lordships held that the auction-purchaser was bound by an estoppel which bound the person whose right, title and interest the purchased. There is, however, a material distinction, and that is that in neither of those cases the mortgagor co-operated with the purchaser for creating a title in derogation of the mortgage. This upon general principles of equity the mortgagor should not be allowed to do, and there is ample authority for this. I may refer in this connection to the case of Doe v. Stone (1846) 3 C.B. 176 in which it was held that it was not open to a person who has derived title from a mortgagor, to set up against the claim of the mortgagee a title which the mortgagor himself could not set up. In the case of Doe v. Vickers (1836) 4 Ad. & E. 782 a mortgagor of a leasehold property suffered an ejectment and took a fresh lease; he was not allowed to set up this new lease against the claim of the mortgagee. In the case of Hughes v. Howard (1858) 25 Beav. 575 the mortgagor in collusion with the lessor and the second mortgagor incurred a forfeiture of the mortgaged leasehold and took a fresh lease from the landlord, but it was not allowed to set up this lease in answer to the suit of the mortgagee. The case of Devendra Nath Sen v. Mirza Abdul Samed Seraji (1909) 10 C.L.J. 150 may also be referred to as supporting this conclusion.
5. In the result, therefore I agree with Mr. Justice Chitty and hold that the appellant the defendant No. 6, is estopped from raising the plea of non-transferability.