John Woodroffe, J.
1. The plaint does not seek for any declaration against the prior mortgagees but asks payment by the mortgagors, and in default sale of the mortgaged property. The 10th paragraph of the plaint, however, does state the plaintiff's intention to displace the alleged prior title of the previous mortgagees to the lands mortgaged to the plaintiff. This question was argued in both the lower Courts, Both those Courts have dealt with the question adversely to the appellant before us, and I think quite rightly. We are not here concerned with the rights, whatever they may be, of the plaintiff as a landlord, that is not the capacity in which he appears in this suit. Here he sues as a mortgagee and he would not be in such a position to sue unless, of course, he had taken a mortgage from his own tenants. There can be no question but that the mortgagor could not have been heard to say that the property which he had mortgaged was non-transferable and that though he purported to effect a transfer of it and received money in respect of such transfer, notwithstanding nothing passed and his mortgage was invalid. If the mortgagor could not say-that, it seems to me perfectly clear, that the plaintiff, who is a subsequent mortgagee and as mortgagee derived his title from the mortgagor, is in no better position. If this were not so, as was pointed out in the course of the argument, it might lead to fraud and injustice, because it would be quite open in such a case for the tenant to mortgage his property to various parties and then for the landlord to come in after having taken a mortgage from the tenant, and to claim to set aside all the previous mortgages on the ground that they had been effected without his permission.
2. There has been no case cited in the, arguments the learned Pleader has addressed to us, which supports the proposition which has been urged before us, but he has submitted to us that it is to be derived from the examination of the Full Bench decision in Dayamoy v. Ananda Mohan Roy 27 Ind. Cas. 61 : 42 C.W.N. 971 : 20 C.L.J. 52. That case, however, is not an authority for the proposition before us. What that decision does decide is that so far as the landlord is concerned, it is only in the case of a transfer of the whole of the holding that a fight of entry is given to him, unless there has been relinquishment or abandonment. It may also be that the transfer of a part without consent is not binding, but that decision does not give a remedy in such case or say that the transferee of a part of a' holding by way of prior mortgage cannot resist the landlord when he attempts to enforce a subsequent mortgage taken by him from the same tenant. Nor does any case which has been cited to us establish that proposition.
3. The judgment, therefore, of the lower Appellate Court in affirmance of the first Court appears to me to be correct, and the appeal is dismissed with costs.
4. As I have stated, I have dealt with the position of the plaintiff in the capacity in which he sues, namely, as mortgagee. With his rights, whatever they may be, as a landlord, we are not here concerned.
5. I concur.