Francis W. Maclean, C.J.
1. This is a very short matter. The suit is one to enforce a mortgage. The defendant who was a young man at the date lie gave it, set up various defences of fraud and so forth, all of which have been found against him. The only point for our decision is this. In the Schedule (A) to the mortgage deed, item (I) is described as.' The undivided one cottah four chittacks of land more or less, comprising premises No. 251-2, Upper, Circular Road, Holding 49, Subdivision XIV, Division II, Mouzah Manicktollah, Thanah Manicktollah, Sub-Registry Sealdah,' and so forth; and the earlier part of the deed contains this statement: 'Out of the properties' mentioned in Schedule (A) below the property mentioned in item (I) of the said schedule is the land purchased with my self-acquired money.' This mortgage which also' comprised certain property in Calcutta was registered in the Sealdah Registry, which would be quite right, assuming that the mortgage comprised any property in the Sealdah district But now, when the, plaintiff seeks to enforce his mortgage, the defendant cays that there is no such property in the Sealdah district as that to which I have referred, and which is mentioned in the mortgage, and consequently, under the Registration Act, the registration of the mortgage in the Sealdah Sub-Registry was bad, and the deed as a mortgage has no efficacy in law.
2. The Court below has taken this view: hence the present 'appeal by the mortgagor. Two questions arise upon this defence: the first is whether the defendant has in fact substantiated that there was no such property in the Sealdah district as that which is described in the mortgage and purports to be comprised in it; and, secondly if there were no such property, whether it lies in the mouth of the defendant to raise this objection, or, in other words, whether he is not estopped by his own declaration and by his own conduct from doing so.
3. Upon the question of fact, to enable him to succeed, the defendant ought to show with every clearness that no property in the Sealdah district was comprised in the mortgage. What is his evidence? The witness Nobin Chunder Mookerjee, who is a clerk in the Calcutta Municipality--one of the assessment clerks-is asked, this question:
Q. By looking into this book can you say if there is any property at No. 152-2, Upper Circular Road?.
A. No. There is none. I have seen entries from 1892 to 1900.
4. But he adds: 'That beyond the statement that there is no such entry in the hook, I cannot say that law is no property at that number.'
5. Then to the Court he says: 'The book would have shown if any house was at No. 251-2 Upper Circular Road.
6. In the description in the mortgage there is no reference to any house. It does not follow that because there is no entry in the book to show that there is a house numbered 251-2, that is sufficient to show conclusively that as a matter of fact there was no such property a that which mentioned in the schedule to the mortgage. I din no think any reliance can be placed on the evidence of the defendant on this point, nor does the evidence of Annoda Prosad add much, in my mind, to the defendant's case. As against this there is the purchase deed from Narain Chunder Desmuk to the defendant, which has not been found not to be genuine. On this evidence I am not disposed to think that the defendant has substantiated his case, and the appeal must succeed on this point.
7. Apart from that, and speaking for myself, I am disposed to take the view that, haying regard to the provisions of Section 115 of the Evidence Act, the defendant is estopped from raising this point. In expressing this opinion, I do not express it finally though that is the inclination of my mind, I am not unmindful of certain oases in the English Courts where it has been held that, where deeds have been executed in contravention of some statute, the law of estoppel does not apply.
8. The appeal must be allowed and the usual mortgage-decree made, and the costs of the plaintiff of this appeal and of the lower Court added to his security.
9. I agree in thinking that this appeal must be allowed and on the ground upon which the learned chief Justice has placed the matter. But I prefer to refrain from expressing any opinion upon the question of estoppel, as none of the authorities upon the question had been gone into in the statement, and as it appears to me to be one of some nicety and difficulty.
10. I concur in: thinking that this appeal should be allowed upon the facts, without expressing any decided opinion upon the question of law which has been raised for the appellant.