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1. [After stating the facts :] It is urged on behalf of the appellants, the descendants of the original mortgagee, that, the plaintiffs are estopped from denying that, they had a right to transfer the property to the mortgagees under the sale-deed, Ex. 51, and reliance is placed on the ruling in Jayaram v. Narayan Page of 3 B.-[Ed.], and s 55, Clause 2 of the Transfer of Property Act.

2. The decision in Jayaram v. Narayan Page of 3 B.-[Ed.] proceeds on the principle of estoppel as between the mortgagor and the mortgagee recognised in the ruling in Narayan Khandu Kulkarni v. Kalgaunda Birdar Patel 14 B. 404 that the mortgagor could not have questioned his own right to mortgage the property in dispute, and has not extended the principle of estoppel as between a vendor and a purchaser. Section 55, Clause (2) of the Transfer of Property Act relates to an implied covenant by a vendor that he has power to transfer the property and in case of a breach of the covenant the vendor exposes himself to a suit for damages by the purchaser. It is urged that according to Caspersz on Estoppel, para. 210, a vendor will not be permitted to contend in his own interest as against the purchaser that he had no right to sell the property and reliance is placed on the case of Bhagirath Changa v. Haftzuddin 4 C.W.N. 679. The question in the present case is whether the sale of the equity of redemption of the occupancy rights of the mortgagor by Ex. 51 was valid. The words " without the consent of the Knot "in Section 9 of the Khoti Settlement Act were inserted by Bombay Act VIII of 1912 and were not in existence in Section 9 as it stood in 1882 when the sale-deed, Ex. 51, was passed by the mortgagors to the mortgagee. The sale, therefore, of the occupancy rights would be invalid. Under Section 9, the rights of occupancy tenants would not be transferable, subject to two exceptions, (1) where the right to transfer is created by custom under the conditions specified in Section 9, and (2) where the Knot has in granting a lease conferred upon the lessee the right of transfer at the time of creating the tenancy. It is neither alleged nor proved in this case that either of these exceptions exists in the present case. Further, the words " without the consent of the Knot" did not appear in Section 9 as it stood in 1882. The sale of the occupancy rights, according to the decision in Mahadev v. Mahadaji 12 Ind. Cas. 956 : 13 Bom. L.R. 1157 must be treated as illegal and void. The point of estoppel was not taken in the lower Courts or in the memorandum o|5 Bom. L.R. 652 appeal to this Court. Assuming, however, that the principle of estoppel applies as between a vendor and a purchaser, there could be no estoppel against an Act of Legislature. In Shridhar Balkrishna Vaidya v. Babaji Mula Agarya 28 Ind. Cas. 134 : 16 Bom. L.R. 586 : 38 B. 709 where the defendant purported to resign his occupancy rights in Khoti lands to the plaintiff who was one of the Khots and at the same time attorned to the plaintiff by executing a lease for a term of five years, it was held that the resignation was not valid under Section 9 of the Khoti Act as the consent of all the Khots had not been obtained, that the transaction could not be regarded as a resignation, and that the foundation of the plaintiff's title was illegal and the plaintiff was not entitled to estop the defendant from showing the illegality of the title so founded. There can. be no estoppel against an Act of Parliament or against an Act of Legislature and the principle of estoppel cannot be invoked to defeat the plain provisions of the Statute. See Jagadbandhu Saha v. Radha Krishna Pal 4 Ind. Cas. 414 : 36 C. 920 and Abdul Aziz v. Kanthu Mallik 10 Ind. Cas. 467 : 38 C. 512 : 13 C.L.J. 693. As between a mortgagor and a mortgagee the principle of estoppel which is otherwise clearly recognised is inapplicable where the mortgage is void as contrary to a Statute. See Mahamaya Debi v. Haridas Haldar 27 Ind. Cas. 400 : 42 C. 455 : 19 C.W.N. 208 : 20 C.L.J. 183. We think, therefore, that the plaintiffs are not estopped from contending that the sale of the equity of redemption under the sale-deed, Ex. 51, is illegal and void.

3. The next question is whether the decision in Suit No. 243 of 1918 operates as res judicata. The learned Subordinate Judge, in the previous suit found that the sale deed was binding on the mortgagors though the lands were Khoti, and that the mortgagees proved adverse possession for more than twelve years, and that though the sale deed was invalid under Section 9 of the Khoti Act, the transfer did not annihilate the occupancy tenant's rights and the transferee of the occupancy right would be entitled to claim that be bad by the transfer obtained such rights as an ordinary tenant could give, and he relied in. support of his conclusion on the rulings in Dayamoyi v. Ananda Mohan Roy 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 and Behari Lal Ghose v. Sindhubala Dasi 41 Ind. Cas. 878 : 45 C. 434. The learned Judge on appeal in the previous litigation held that the sale-deed was binding on the mortgagors and though the occupancy rights were not transferable, the transferee from the occupancy tenant could claim that he had by the transfer obtained the rights of an ordinary tenant, and that the mortgagees were in possession even before the purchase and their possession since 1882 was clearly adverse to the present plaintiffs and defendants Nos. 13 to 15. In second appeal, the High Court awarded possession to the mortgagees not on the strength of their title as mortgagees but on the strength of their title under the sale-deed. Though the question as to whether the right to redeem under the mortgage of 1870 was barred by the sale-deed of 1882 and the questions as to the validity of the sale-deed as affecting the right to redeem were not decided and left open, the defendants Nos. 1 to 12 in this case, were awarded possession on the strength of their title as purchasers. The title, therefore, to possession under the sale deed, Ex. 51, was decreed in favour of the present defendants Nos. 1 to 12 in the previous litigation. The lower Court in this case was of opinion that in the previous litigation the decree for possession in favour of the then plaintiffs was upheld apparently on the sole ground that the plaintiffs had long been in possession and that they were entitled to regain that possession as mortgagor. We think that the lower Appellate Court has misunderstood the effect of the judgment in the three Courts in the previous litigation Defendants Nos. 1 to 12 were awarded possession not as mortgagees but on the strength of the sale deed, Ex. 51, and so far as the previous decrees awarded possession to the defendants Nos. l to 12 on the strength of the sale deed, the decision, in our opinion, operates as res judicata in favour of defendants Nos. 1 to 12. The sale-deed, Ex. 51, therefore, according to the previous litigation conveys rights to possession, as against the plaintiffs and defendants Nos. 13 to 15. The plaintiffs and defendants Nos. 13 to 15, therefore, cannot in this suit for redemption recover possession of the property by redemption of the mortgage.

7. On these grounds I would reverse the order of remand and restore the decree of the Subordinate Judge with costs of this Court and of the lower Appellate Court on the respondents.

Baker, J.

8. Although the arguments in this appeal have occupied over a day, the point in issue is a narrow one. The plaintiffs mortgaged certain lands to the defend-ante, including the land in suit, in 1870, and in 1882 they sold the lands to the defendants by a registered sale-deed. The land in suit being occupancy tenancy land under the Khoti Act, or as it is now called permanent tenancy, such a sale is against the provisions of Section 9 of the Khoti Act.

9. The defendants brought a suit on the sale-deed, and obtained a decree for possession, which was confirmed on appeal by the District Court, and in second appeal by the High Court. The invalidity of the sale was raised in the lower Courts and decided against the present plaintiffs, but in second; appeal the High Court said that the question of the right of present plaintiffs to redeem the mortgage of 1870 had not been decided and was left open. The present plaintiffs (defendants in the former suit) consequently brought the present suit for redemption. The first Court dismissed the suit as barred by res judicata by reason of the decision in Suit No. 2,8 of 1918, but on appeal the District Court reversed the decision and remanded the suit for decision on the merits as to what was due on the mortgage, holding that the decision in Suit No. 243 of 1918 does not bar this suit, that the possession of defendants Nos. 1 to 12 since 1882 has not been adverse to the plaintiffs, and that they are entitled to redeem the mortgage, treating the sale as invalid. There can be no doubt that the plaintiffs, in view of the finding of the High Court in Second Appeal No. 624 of 1919 that no further question as to the validity of the sale as affecting the right of defendant No. 1 to redeem has been dealt with nor decided by the lower Appellate Court, have a right to raise this question again. There can be no estoppel against a Statute, of, Abdul Aziz v. Kanthu Mallik 10 Ind. Cas. 467 : 38 C. 512 : 13 C.L.J. 693 and Mahamaya Debi v. Haridas Haldar 27 Ind. Cas. 400 : 42 C. 455 : 19 C.W.N. 208 : 20 C.L.J. 183 and they are not estopped from raising the contention of the invalidity of the sale-deed. Further in view of Section 9 of the Khoti Act which prohibits alienation of a permanent tenancy the sale-deed would be invalid in law and would convey no interest to the defendants, So the only question left is whether this matter has been heard and finally decided.