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 plaintiffs. Defendant No. 1, who is the heir of the mortgagor, sold, a part of this holding to defendant No. 1 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 statute 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 tranferable 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 has acquired. In this view, the appellant has derived some title from the mortgagor although he has acquired an additional title from the landlord, and to 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 (1) an unreported decision of Ghose and Pratt, JJ., in appeal from Appellate Decree No. 35 of 1903 Krishna Lal Saha v. Bhairab Chandra Rahat 9 C.W.N. CCXLVII and (2) a decision of Rampini, Officiating C.J., and Ryves, J., in Asmatunessa Khatun v. Harendra Lal 12 C.W.N. 721 : 8 C.L.J. 29 In the first case, an execution 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 in 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 eases as cases of purchase by auction-sale: for although there were some cases in the books see Lala Parbhu Lal v. Mylne 14 C. 401; Gour Sunder v. Her Chunder 10 C. 355 at p. 360; Bashi Chunder v. Enayet Ali 20 C. 280 which held, on the authority of certain dicta of the Judicial Commit too see Anundomayee v. Dhonendro Chunder 14 M.I.A. 101 at p. 11 : 16 W.R. 19 (P.C.) : 8 B.L.R. 122; Dinendro Nath Sannial v. Ram Coomar 8 I.A. 65 : 7 C. 107 : 10 C.L.R. 281 that estoppels binding upon the judgment-debtor were not binding upon tho auction-purchaser, the matter has been finally set at rest by the Judicial Committee itself in the case of Mahommed Mozaffer Hossein v. Kishori Mohan Roy 22 C. 909 : 22 I.A. 129 in which their Lordships held that the auction-purchaser was bound by an estoppel which hound the person whose right, title and interest he 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. Slone 3 C.B. 176 : 15 L.J.C.P. 234 : 10 Jur. 480 : 71 R.R. 311 in which it was held that it was not a part to a person, who hits 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 Deo v. Vickers 4 Ad. & E. 782 : 6 N. & M. 437 : 6 L.J.K.B. 266 a mortgagor of a leasehold property suffered an ejectment and took a fresh lease; he was not allowed to sot up this new lease against the claim of the mortgagee. In the case of Hughes v. Howard 25 Beav. 575 : 53 Eng. Rep. 756 the mortgagor, in collusion with the lessor and the second mortgagee, incurred a forfeiture of the mortgaged lease-hold and took a fresh lease from the landlord, hut was not allowed to set up this lease in answer to the suit of the mortgagee. The case of Debendra Nath Sen v. Mirza Abdul Samed Seraji 10 C.L.J. 150 : 1 Ind. Cas. 264 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.