John Woodroffe, J.
1. This is a suit on a mortgage, dated the 15th of April 1902, executed by one Syed Moulvi Saderuddin Ahmed and his wife Sayadani Aimana Bibi in favour of Srimati Kadambini Dasi and Srimati Mrinalini Dasi. The 1st plaintiff is the sole executor of Srimati Kadambini Dasi. Rs. 4,000 and the security was the house Rs. 4 000 and the security was the house No. 10, Wellesley Square, in Calcutta, and a piece of rent-free land, one bigha in area, in Bohar in the district of Burdwan, butted and bounded in the manner stated in the first paragraph of the plaint.
2. The Muhammadan defendants are the representatives of the mortgagors. The defence of one of them is that his father the mortgagor, and his step-mother! Sayadam Amana Bibi, never had any rent-free land (measuring one bigha or otherwise) in Bohar in Pergana Banihati in the District of Burdwan; as referred to in the first paragraph of the plaint and described in the deed of mortgage He denies that there was any such plot of land, and suggests that it was a fictitious plot mentioned in the deed of mortgage in fraud of the law of registration and that the registration of the mortgage being invalid, the plaintiff cannot get relief in respect of the same. He further does not admit the receipt of consideration
3. The issues were: Whether the suit was bad for non-joinder of parties. We are not concerned with this now. This was the fourth issue. The fifth issue raised the question whether the mortgage was executed by the mortgagors and there was any consideration. This issue was decided in favour of the plaintiffs by the learned Judge, and there has been nothing said against his decision on this point. There is no question in this appeal about the merits of the appellants' case.
4. The first issue raised the question whether the Burdwan property was mortgaged at 1902. This issue was decided in favour 1902. This issue was decided in favour of the appellants, though the respondents here have sought to persuade us to hold that the learned Judge's decision was wrong. The mortgage (though, as the Judge pointed out, it might have been in some respects more clearly drawn) states that 'the mortgagors executed this bond to the following effect:' It then sets out both the Calcutta and the Burdwan property, thereby indicating that both these properties were the subject of the mortgage. It then recites the ownership of these two properties and it states that neither of the properties are charged or encumbered by mortgage or attachment, which would be unnecessary if one of them was not intended to be mortgaged. Moreover, the case made is that the Burdwan property was insetted in order that the Registering Court of Burdwan might have jurisdiction by reason of the fact that one of the mortgaged properties was in that district. I am, therefore, of opinion that upon a true construction of the whole document, the Burdwan property was mortgaged.
5. There remain then the second and the third issues, namely, (second)--Was there any such property in existence as the Burdwan property purported to be mortgaged, and (third)--Was the mortgaged property registered
6. These questions involve a determination of the contention whether the appellants can invoke any estoppel. Section 115 of the Evidence Act would prima facie apply, as there has been here a representation of fact and an alteration of position. The question arises--is an estoppel being invoked to defeat the provisions of a Statute, namely, the Registration Act? The learned Judge indicates that his own view, apart from authority, would be that once the execution of the mortgage was proved, it was not open to those claiming under the mortgagor to allege or to adduce evidence to show that any of the property purported to be mortgaged was either non-existent or not owned by the mortgagors at the date of the mortgage. But the learned Judge, by reason of the decision of the original Court in Joginee Mohan Chatterjee v. Bhoot Nath Ghosal 29 C. 654 : 6 C.W.N. 856 and in view of the recent Privy Council decision in Harendra Lal Roy Chowdhuri v. Srimati Hari Dasi Debi 23 Ind. Cas. 637 : 18 C.W.N. 817 : 41 C. 972 : 27 M.L.J. 80 : 12 A.L.J. 774 : 16 M.L.T. 6 : (1914) M.W.N. 462 : 1 L.W. 1050 : 19 C.L.J. 484 : 16 Bom. L.R. 400 : 41 I.A. 110 (P.C.) decided that the principle of estoppel was not applicable. He has, however, himself pointed out that in the Privy Council case, both the mortgagor and the mortgagee were parties to a fraud on the Registration Law, and in the case reported as Jogini Mohan Chatterji v. Bhoot Nath Ghosal 31 C. 146 at. P.149 Chief Justice Maclean expressed himself as disposed to take the view that the defendant was estopped, although the question was actually left open and not decided.
7. There can be no doubt about the general rule that the principle, of estoppel cannot be invoked to defeat the plain provisions of a Statute in the sense in which that rule is properly understood. The question is, however, whether the estoppel has been invoked for such a purpose here. This is not like the cases cited in the judgment of the learned Judge in which there was either no registration at all, or in which it was alleged that both the mortgagor and mortgagee were parties to a fraud, nor is it a case of agreement. We cannot further assume that there was an attempt to defeat the Law of Registration except by also assuming that there was in fact no property in Burdwan, which is the point in question, If we assume that, there is an end of the case. If then it be said that to apply an estoppel would be to shut out the attempt of the defendants to prove the true facts, there is no reason why it should not be so shut out, unless we can say that we are applying the provisions of estoppel to 'defeat the provisions of a Statute. I am disposed to hold that the defendants are estopped: but it is not necessary to rely on this, as, on the evidence, my opinion is that the appellants should succeed.
8. The facts show that the mortgagor Syed Moulvi Saderuddin Ahmed was a man of property, position and character for honesty. There is no evidence of an intention on his part to commit fraud. What is shown is, that the document was to be registered in Calcutta, but a few days prior to registration Syed Moulvi Saderuddin Ahmed on account of ill-health of his wife was not able to come to Calcutta, and, therefore, in order to register the mortgage at Burdwan he included the property belonging to him, which was situated in Bohar in that district. It is admitted Chat he had other property in the neighbourhood: Therefore, the position is that he desired to found jurisdiction in the Burdwan Registration Court and that he actually had property in Burdwan available for that purpose. It is to my mind, therefore, inconceivable under these circumstances that the mortgagor should either deliberately or through carelessness insert in the mortgage-deed property he had not got,
9. Then, upon the evidence, even if the defendants are not estopped, there is no question bat that the statement in the mortgage is very strong evidence against them. No one is more likely to know whether the property is held by him and what is its position than the alleged owner, and the statement that there was such a property at Burdwan, and its boundaries are set out in the document signed by Syed Moulvi Saderuddin Ahmed and his wife. The onus, therefore, lay upon the defendants to disprove the existence of ''this land in 1902. The learned Judge in his judgment holds that the onus was on the defendants and states that the question was whether the evidence given for the defendants was sufficient to rebut the presumption raised by the mortgage that the mortgagors had at the date of the - mortgage the land at Burdwan which they purported to mortgage, and to establish affirmatively that no such land belonged in 1902 to the mortgagors. The learned Judge on this says: 'The evidence on the point is not entirely convincing having regard to the fact that the mortgagors did own land in the neighbourhood and also Belgoria tank.' Notwithstanding this, however, he held that he was bound by the evidence to come to the conclusion that there was in fast no such land at Burdwan. If, however, the evidence was not entirely convincing and the onus lay upon the defendants, the decision should upon the learned Judge's findings have been the other way. But apart from this, and upon examination of the evidence, I think that the defendants have not established that which lies upon them. Had the onus been upon the plaintiff, it may be conceded that it might be difficult to hold that he made out the existence of the land with the boundaries as stated. But that is not the case here. It starts with the strong evidence of the statement in the mortgage, and, I think, Mr. Sarkar has * shown a case for identifying, to some extent at least, two of the boundaries; and, as regards another of the boundaries, the defendants' evidence would not appear to be true. In any case, I am not prepared to hold that the defendants have established that the mortgagors had no land at Burdwan and that there was no such land as described in the mortgage. It may be that when the plaintiff endeavours to execute this mortgage decree, he may not be in a position to satisfactorily identify the boundaries of this land so as to enable him to sell the same either due to original misdescription or change in the surroundings during the past fifteen years. That is a different case from the one before us, which is whether or not the defendants have established that the mortgage is invalid by' reason of the fact that there was no land at Burdwan.
10. In my opinion the respondents fail in this case: and I would answer the issues Nos. 2 and 3 in the affirmative, namely, that there was such property in existence at Burdwan as alleged and that the mortgage was properly registered. In the result the suit must be decreed. -Mr. Sarkar on behalf of the appellants states that he is not seeking for a personal decree. Therefore, there must be a decree against the mortgaged premises only.
11. An objection was raised by Mr. Das on behalf of the respondents that there could be no decree against them until it was determined whether the decree could be sustained against the heirs of Zakia Bibi. But this contention is without basis, having regard to the fact that no personal decree is sought against anybody, but merely against the mortgaged property itself. As against the heirs of Zakia Bibi, if they desire to contest the plaintiffs' suit, then, in that case, they having been added after the determination of the suit in the first Court, evidence will have to be given, and a trial held as against them.
12. Upon these terms, in my opinion, the appeal should be decreed with costs as against the respondents except the heirs of Zakia, Mr. Sarkar on behalf of the appellants having agreed to pay the costs of one day's hearing to the heirs of Zakia Bibi. Mr. Sarkar's client will pay the costs of the guardian ad litem of the daughter of the 2nd defendant and may add them to his own costs. The plaintiff is entitled to his costs in the first Court against all the defendants appearing in that Court.
13. I concur.