TMI Blog1981 (12) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... ji died leaving behind his two sons Hari and Purshottam as his heirs and legal representatives. The two sons of Nanaji sold the entire mortgagee rights and interest to one Ganpatram Mugutram Vyas (for short Ganpatram) on 4th of July, 1912. Ganpatram in his turn sold the mortgagee rights in a part of the mortgaged property, viz., common latrine, to one Vamanrao Laxmanrao Nirkhe (for short Vamanrao). 3. Ganpatram died and his son Chhotelal Ganpatram (for short Chhotela) sold away his rights as a mortgagee in possession in respect of the rest of the properties which still remained with him, to Chhaganlal Keshavlal Mehta (for short Chhaganlal Mehta.) 4. Mortgagor Motibhai also died leaving behind his son Chimanrai Motibhai Baxi (for short Chimanrai). Chimanrai died leaving behind his widow Chhotiba and a daughter Taralaxmibai. On September 12, 1950 Taralaxmi sold her right, title and interest in the suit property to one Shantilal Purshottamdas Dalia (for short Shantilal). Later on Shantilal conveyed his right, title and interest in the property to the plaintiff, Narandas Harbhai Patel (for short Narandas). 5. It appears that during the life time of Chimanrai Ganpatram the mort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was resisted by the 1st defendant on grounds that the plaintiff had no right to redeem inasmuch as his predecessor in interest, Chimanrai, his widow Chhotiba and his daughter Taralaxmibai on their own admission had no subsisting right, title and interest in the mortgaged property. The plaintiff who is only a transferee from Taralaxmibai could not rank higher, that Ganpatram, the predecessor in interest of defendant No. 1 was not in possession of the property as a mortgagee but as an absolute owner thereof. The defendant No. 1, who claims through Ganpatram's son Chhotalal, was also an absolute owner and continued to remain in possession from 1933-34 as such. As an absolute owner he carried out repairs to the mortgaged property. He also obtained permission from the municipality and built the house afresh after incurring heavy expenditure and in doing so he had spent about ₹ 3374-2-0. He also denied that Shantilal, purchaser of the equity of redemption was the plaintiff's benamidar. Indeed, the plaintiff had falsely created the evidence of benamidar to bring the present suit, and the suit was barred by limitation and estoppel. In the alternative he pleaded that he shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence, except issues Nos. 1 and 4. 11. Consequent upon the order of remand the Joint Civil Judge, Jr. Division, decided other issues against the plaintiff. He held that Chimanrai, his widow Chhotiba and his daughter Taralaxmibai had relinquished their right, title and interest in the suit property and, therefore, Taralaxmibai had no subsisting interest or title to transfer to the plaintiff or his predecessor in interest. He further held that the suit was barred by time and estoppel, and that defendant No. 1 had spent a substantial amount on repairs. On these findings he again dismissed the suit by his judgment dated 21st of August, 1958. 12. The plaintiff again took up the matter in appeal, 13. It appears that during the pendency of the appeal Vamanrao, defendant No. 2 died in August, 1958. His heirs were, however, not brought on the record. A question arose whether the appeal abated as a whole or only as against defendant No. 2. The District Judge by his separate order dated 25th of September, 1959 held that the appeal abated only so far as defendant No. 2 was concerned but it could proceed as against the surviving defendant No. 1. 14. The appeal was eventually allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor. A perusal of this provision indicates that a co-mortgagor cannot be permitted to redeem his own share of the mortgaged property only on payment of proportionate part of the amount remaining due. In other words the integrity of the mortgage cannot be broken. Order 34, Rule 1 of the CPC deals with the parties to suits for foreclosure, sale and redemption. It provides: Subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. 18. It has already been pointed out that defendant No. 2 was the purchaser of mortgagee rights in respect of common latrine while defendant No. 1 is the purchaser of the mortgagee rights in respect of the remaining mortgaged property, viz., the houses. When the plaintiff filed the suit he impleaded both the mortgagees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the suit against the surviving defendant No. 1 was maintainable despite the abatement of the suit against the 2nd defendant. We fully endorse the view taken by the Division Bench of the High Court. 20. This takes us to the second point. This contention is based on the aforesaid various endorsements made by Chimanrai, his widow Chhotiba and his daughter Taralaxmibai on the notices sent by the mortgagee. The question is whether these endorsements amount to relinquishment of their rights and interest so as to estop them from transferring the property in suit ? The notice by Ganpatram to Chimanrai and the notices by his son Chhotalal to Chhotiba and Taralaxmibai and their respective endorsements thereon have been referred to in the earlier part of the judgment. Whether these endorsements amount to relinquishment of their rights and title and if so whether the same amounts to estoppel within the meaning of Section 115 of the Evidence Act ? In our opinion the endorsements have to be read not in isolation but with reference to the notices sent. So read, the endorsement only indicate that the heirs of the mortgagor were not prepared to bear the expenses on repairs of the mortgaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice; (7) the person claiming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel; (8) Only the person to whom representation was made or for whom it was designed can avail himself of it. A person is entitled to plead estoppel in his own individual character and not as a representative of his assignee. 24. None of these conditions have been satisfied in the instant case, for example, no representation was made to defendant No. 1. Therefore, he cannot plead estoppel. Secondly, the representation was not regarding a fact but regarding a right of which defendant No. 1 or his predecessor in interest had full knowledge or could have known if he had cared to 'know. It is difficult to say that defendant No. 1 has moved his position on account of the representation made by the mortgagor or his heirs or assignees. On the facts and circumstances of this case it is not possible to hold that ingredients of Section 115 of the Eviden ..... 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