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PETITIONER:

CHHAGANLAL KESHAVLAL MEHTA

Vs.

RESPONDENT:

PATEL NARANDAS HARIBHAI

DATE OF JUDGMENT11/12/1981

BENCH:

MISRA, R.B. (J)

BENCH:

MISRA, R.B. (J)

ERADI, V. BALAKRISHNA (J)

CITATION:

1982 AIR 121 1982 SCR (2) 166

1982 SCC (1) 223 1981 SCALE (3)1861

ACT:

Suit for redemption of mortgage-order XXXIV Rule I

Civil Procedure Code-Right of a co-mortgagor to redeem his

own share, section 60 of the Transfer of Property Act scope

of-Abatement by death of parties-order XXlll Rule 2 Civil

Procedure Code.

Estoppel by canduct-Section 115 of the Evidence Act-

Difference between admission and estoppel explained.

HEADNOTE:

Motibhai created two mortgages in respect of the same

property in the years 1871 and 1893 in favour of one Nanaji

who died somewhere between 1 890 and 1912 leaving behind his

two sons Hari and Purushottam as his heirs and legal

representatives. They both sold the entire mortgagee rights

and interest to one Ganpatram on 4th July, 1912, who in his

turn sold the mortgagee rights in a part of the mortgaged

property, namely, common latrine to one Vamanrao. Ganpatram

died and his son Chhotalal 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, the appellant-defendant No. 1.

Mortgagor Motibhai also died leaving behind his son

Chimanrai. Chimanrai died leaving behind his widow Chhotiba

and a daughter Taralaxmibai. On September 12, 1950

Taralaxmibai sold her right, title and interest in the suit

property to one Shantilal who later on conveyed his right,

title and interest in the property to the respondent-

plaintiff Narandas Haribhai Patel. During the life time of

Chimanrai, Ganpatram, the mortgagee had sent a notice,

Exhibit 77 dated 15th April, 1913 informing him that the

mortgaged property was in a dilapidated condition and

required repairs. He further called upon Chimanrai to pay

the amount already spent by him towards the repairs to get

further repairs done or in the alternative pay up the

mortgage amount and redeem the property. Chimanrai, denied

his responsibility. After the death of Chimanrai Chhotalal

gave a similar notices, Exhibits 68 and 78, dated 21st of

September, 1933 and 6th October 1933 to Taralaxmibai

daughter of Chimanrai and to Chhotiba, the widow to the same

effect. Both Chhotiba and Taralaxmibai denied their

liabilities. Narandas after the purchase of the mortgagor's

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rights from Shantilal filed a suit for redemption impleading

both the assignees of the mortgagee's rights, namely,

Chhaganlal Keshavlal Mehta, the appellant as defendant No. I

and Vamanrao as defendant No. 2. The suit was dismissed by

the trial court on the ground that the plaintiff had no

right to redeem In this view of the matter it was not

necessary to decide other issues but the trial court

recorded findings on other issues also including the issue

of estoppel. The appeal and the cross-objection filed by the

parties were

167

allowed by the Assistant Judge holding that plaintiff had

purchased the equity of redemption and so he was entitled to

redeem and that the suit was not barred by estoppel. He

however remanded the case for deciding the remaining issues.

On remand the Joint Civil Judge held that Chimanrai, his

widow Chhotiba and his daughter Taralaxmibai 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 the suit was dismissed

once again. During the pendency of the appeal by the

respondent, Vamanrao died in August, 1958. His heirs were,

however, not brought on the record. The appeal was allowed

as against defendant No. I but dismissed as abated against

defendant No. 2 and it was held that the respondent was

entitled to redeem the mortgaged property on payment of the

mortgaged money as well as the expenditure incurred on

repairs, and that the suit was neither barred by time nor by

estoppel. On further appeal to the High Court a learned

single Judge reversed the Judgment and decree of the lower

appellate Court and dismissed the suit. The respondent-

plaintiff took up the matter in the letters patent appeal

and the appellant-defendant No. 1 also filed a cross-

objection. A Division Bench of the High Court allowed the

appeal and decreed the suit reversing the finding of the

learned Single Judge that the respondent-plaintiff had no

right to sue. The Division Bench, however, granted a

certificate of fitness of appeal to the Supreme Court.

Dismissing the appeal, the Court

^

HELD: 1. Under section 60 of the Transfer of Property

Act, 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. [173

G]

2. It is, however, a well recognised principle that

even if all the mortgagees are not before the court in a

suit filed by the mortgagor for redemption of the property,

but the mortgagor is prepared to pay the entire amount due

at the foot of the mortgage to such mortgagees as are before

the court and gives up his right under the mortgage as

against those mortgagees who are not before the court, The

court can pass a decree for redemption directing that the

entire mortgage amount should be paid to the mortgagees who

are actually before the court. [174 D-F]

Motilal Yadav v. Samal Bechar (1930) 54 Bom. 625,

approved.

3:1. If one of the defendants in a suit dies and his

heirs are not brought on record, the suit certainly would

abate as against that party. The suit, however, G could not

abate as against the other surviving defendants. A question

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may arise whether the suit is maintainable against the

surviving defendants. In the instant case, the Suit abated

as against defendant No. 2 in respect of the common latrine.

But the suit may proceed against the surviving appellant-

defendant No. 1 if the respondent-plaintiff is prepared to

pay the entire mortgage consideration. [174 F-G]

3:2. A person may be a necessary party in a suit but he

may not be a necessary party in the appeal. [175 A]

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4:1. To bring the case within the scope of estoppel as

defined in section 115 of the Evidence Act: (i) there must

be a representation by a person or his authorised agent to

another in any form a declaration, act or omission; (ii) the

representation must have been of the existence of a fact and

not of promises de futuro or intention which might or might

not be enforceable in contract: (iii) the representation

must have been meant to be relied upon; (iv) there must have

been belief on the part of the other party in its truth; (v)

there must have been action on the faith of that

declaration, act or omission, that is lo say, the

declaration, act or omission must have actually caused

another to act on the faith of it, and to alter his former

position to his prejudice or detriment; (vi) the mis-

representation or conduct or omission must have been the

proximate cause of leading the other party to act to his

prejudice; (vii) 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 affair or

had means of knowledge, there can be no estoppel; (viii)

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. [176 C-F]

4:2. The difference between an admission and estoppel

is a marked one. Admissions being declarations against an

interest are good evidence but they are not conclusive and a

party is always at liberty to withdraw admissions by proving

that they are either mistaken or untrue. But estoppel

creates an absolute bar. Estoppel deals with questions of

facts and not of rights. A man is not estopped from

asserting a right which he had said he would not assert It

is also a well-known principle that there can be no estoppel

against a statute. [175G, H- 176 B]

4:3. In the instant case (i) the ingredients of section

115 of the Evidence Act have not been fulfilled. No

representation was made to defendant No. 1, therefore,

estoppel cannot be pleaded; (ii) the representation was not

regarding a fact but regarding a right of which defendant

No. I or his predecessor in interest had full knowledge or

could have known if he had cared to know lt is difficult to

say that defendant No. ] has moved his position on account

of the representation made by The mortgagor or his heirs or

assignees, [176 G-H]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1867 of

1970.

From the judgment and order dated the 18th February,

197() of the Gujarat High Court in Letters Patent Appeal No.

6/60.

S. S. Sheth, Ravinder Narain, J. B. Dadachanji, O.C.

Mathur and Mrs. Anjali K. Verma for the Appellant.

Gautham Philip, P. H. Parekh and Mrs. Vineeta Sen Gupta

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for the Respondent.

The Judgment of the Court was delivered by

MISRA, J. The present appeal by certificate is directed

against the judgment of the High Court of Gujarat at

Ahmedabad in

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Letters Patent Appeal No. 6 of 1966 dated the 18th of

February, 1970 decreeing the suit for redemption.

The property in dispute, situated in Baroda City,

originally belonged to Motibhai Bapubhai Shibandi Baxi (for

short Motibhai). He created a mortgage with possession of

the disputed property in favour of one Nanaji Balwant

Pilkhanewala (for short Nanaji) in 1871 for a sum of Rs.

800. In 1890 a second mortgage was created in favour of the

same mortgage and the amount secured by this second mortgage

was Rs. 375. Somewhere between 1890 and 1912 the original

mortgagee Nanaji 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).

Ganpatram died and his son Chhotelal Ganpatram (for

short Chhotelal) 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.)

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 Haribhai Patel (for

short Narandas).

It appears that during the life time of Chimanrai

Ganpatram the mortgagee had sent a notice, Ext. 77, dated

15th of April, 1913 to Chimanrai informing him that the

mortgaged property was in a dilapidated condition and

required repairs. He had already spent some amount towards

repairs but still substantial repairs were needed and the

same should be got done by him or he should pay the mortgage

amount and redeem the property. On receipt of this letter

Chimanrai made the following endorsement:

"During the lifetime of my father, I had become

separated from him without taking any kind of the

moveable or immovable property belonging to him and

even

170

after his death, I have not taken any kind of his

properties nor have I kept my right over the said

properties and so I am not in any way responsible for

your any transaction whatsoever in connection with his

properties. Be it known to you. And while giving you a

definite assurance to that effect I have made

attestation on the aforesaid document in respect of

purchase of the mortgagee's rights, which may also be

known to you."

Long after the death of Chimanrai, Chhotelal, son of

Ganpatram, gave a similar notice, Ext. 28, dated 6th of

October, 1933 to Chhotiba, the widow of Chimanrai calling

upon her to Redeem the mortgage in question. On this notice

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similar endorsement on behalf of Chhotiba was made on 10th

of October, 1933 by Lomeshprasad Hariprasad Desai (for short

Lomeshprasad). her daughter's son, as had been made by

Chimanrai earlier on the notice given by Ganpatram. Yet

another notice, Ext. 78 dated 21st of September, 1933 was

sent by Chhotalal to Taralaxmibai, daughter of Chimanrai to

the same effect. In her reply, Ext. 73, dated 3rd of

October, 1933 to the notice, Taralaxmibai stated inter alia

that her father Chimanrai had foregone all rights whatsoever

in the property of his father, Motibhai, during his lifetime

and hence she had no concern with the property of Motibhai.

It was further stated that her own mother Chhotiba was alive

(in October 1933) and, Therefore, she had no concern

whatsoever with the property of Motibhai or the liabilities

arising out of the dealings of Motibhai.

Narandas after the purchase of the mortgagor's rights

from Shantilal filed a suit for redemption impleading both

the assignees For the mortgagee's rights, Chhaganlal

Keshavlal Mehta, as the 1st defendant, and Vamanrao

Laxmanrao Nirkhe, as the 2nd defendant.

The claim 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 abso-

171

lute 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 Rs. 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 should be paid the sum of Rs.

5099-2-0 if the plaintiff's suit for redemption was to be

decreed.

The trial court came to the conclusion that the

plaintiff had no right to redeem the mortgaged property as

he had failed to prove that he had purchased the property

benami in the name of Shantilal and that afterwards

Shantilal had passed deed of conveyance or mutation in his

favour. In view of this finding it was not necessary for the

trial court to decide other issues but all the same the

trial court recorded findings on the remaining issues also

in order to complete the judgment. It found that Chimanrai,

Chhotiba or Taralaxmibai never relinquished their right,

title and interest in the suit property, that the suit was

within limitation, and that the suit was not barred by

estoppel. As regards the amount spent on repairs the court

came to the conclusion that the defendant No. I had spent

Rs. 3374-2-O and, therefore, if the plaintiff was to be

allowed to redeem the property he would have to pay that

amount in addition to the mortgage consideration. The suit

was dismissed by the trial court on the ground that the

plaintiff had no right to redeem.

Feeling aggrieved the plaintiff went up in appeal, and

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the defendant No. 1 filed a cross-objection against the

finding that went against him. The appeal and the cross-

objection were allowed by the Assistant Judge by his

judgment dated 31st of March, 1956 on the finding that the

plaintiff had purchased the equity of redemption benami in

the name of Shantilal and that Shantilal had executed a deed

of conveyance, Ext. 66, in favour of the plaintiff and,

therefore, he was entitled to redeem the property. He

further found that the endorsements made by Chimanrai, his

widow Chhotiba and his daughter Taralaxmibai did not amount

to relinquishment of their right, title and interest in the

property. He set aside the decree of the trial court and

remanded the case for deciding the remaining points after

allowing the parties to lead fresh evidence on those issues.

The defendant No. I challenged the remand order by

172

filing an appeal in the High Court. His complaint was

against the direction given by the appellate court while

remanding the case. The High Court allowed the appeal in

part and modified the direction of the lower appellate court

asking the trial court to decide other issues afresh after

allowing further evidence, except issues Nos. 1 and 4.

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. I had spent a substantial amount on repairs.

On these findings he again dismissed the suit by his

judgment dated 21st of August, 1958.

The plaintiff again took up the matter in appeal,

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.

The appeal was eventually allowed by the Assistant

Judge, Baroda against defendant No. 2 by his judgment dated

12th of November, 1959 holding that the appellant was

entitled to redeem the mortgaged property on payment of Rs.

4724-2.0 on account of the mortgage money as well as the

expenditure incurred by defendant No. 1 on repairs and that

the suit was neither barred by time nor by estoppel. The

appeal was, however, dismissed as against defendant No. 2.

The defendant No. 1 challenged the judgment and decree

of the Assistant Judge before the High Court and only two

contentions were raised before it: (1) that the mortgage

cannot be split up and must be treated as one and

indivisible security and since the right to redeem against

one of the two co-mortgagees had become extinguished because

of abatement of the suit against Vamanrao and his heirs, the

suit against defendant No. 1, the other co-mort-

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gagee, must be dismissed; and (2) that the suit was barred

by estoppel inasmuch as Chimanrai, the heir of the original

mortgagor and after him his widow Chhotiba and daughter

Taralaxmibai having relinquished their right in the disputed

property which she could have conveyed to Shantilal by sale.

Consequently, Shantilal in his turn could not pass a better

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title to the plaintiff. In the result the plaintiff had no

right to file the suit for redemption. A learned Single

Judge who heard the appeal repelled the first contention but

accepted the second one. Accordingly, he allowed the appeal

and dismissed the plaintiff's suit.

The plaintiff undaunted took up the matter in a Letters

Patent Appeal and the defendant also filed a cross-

objection. A Division Bench of the High Court allowed the

appeal and decreed the suit reversing the finding of the

learned Single Judge that the plaintiff had no right to sue.

The Division Bench, however, granted a certificate of

fitness for appeal to this Court. The learned counsel for

the appellant was raised the same two contentions before us.

We take up the first point first.

The first contention is based on the principle of

indivisibility of the mortgage. Section 60 of the Transfer

of Property Act deals with the rights and liabilities of a

mortgagor. It confers a right of redemption. There is,

however, a rider to the right of redemption in the section

itself, which provides :

"Nothing in this section shall entitle a person

interested in a share 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 I of the Code of Civil

Procedure 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

174

right of redemption shall be joined as parties to any

suit relating to the mortgage."

It has already been pointed out that defendant No. 2

was the purchaser of mortgagee rights in respect of common

latrine while defendant No. I 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 as defendants Nos. 1

and 2. Before the Assistant Judge a statement was made on

behalf of the original plaintiff that he was prepared to pay

the entire mortgage amount for redemption of the mortgaged

property to the 1st defendant. A similar statement was made

by Mr. Oza, counsel for the plaintiff in the High Court who

further stated that in no event hereafter would the

plaintiff seek any relief against the property in possession

of defendant No. 2, viz., the right to the common latrine in

which mortgagee rights had been transferred to defendant No.

2 by Ganpatram. Besides, the severance of the two properties

by Ganpatram was recognised by the mortgagor and hence the

severance was with the implied consent of the mortgagor. It

is a well recognised principle that even if all the

mortgagees are not before the court in a suit filed by the

mortgagor for redemption of the property, but the mortgagor

is prepared to pay the entire amount due at the foot of the

mortgage to such mortgagees as are before the court and

gives up his right under the mortgage as against those

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mortgagees who are not before the court, the court can pass

a decree for redemption directing that the entire mortgage

amount should be paid to the mortgagees who are actually

before the court. This principle was recognised in a Full

Bench decision in Motilal Yadav v Samal Bechar.(1) If one of

the defendants in a suit dies and his heirs are not brought

on record the suit certainly would abate as against that

party. The suit, however, could not abate as against the

other surviving defendants. A question may arise whether the

suit is maintainable against the surviving defendants. In

the instant case the suit abated as against defendant No. 2

in respect of the common latrine. But there is no difficulty

in the suit proceeding against the surviving defendant No. 1

if the plaintiff is prepared to pay the entire mortgage

consideration.

It may, however, be pointed out that defendant No. 2

never contested the suit. He was impleaded as a party it was

incumbent on the plaintiff to have impleaded all the

mortgagees as a party. But if the defendant did not contest

the suit at any stage,

175

will he be a necessary party in an appeal ? A person may be

A a necessary party in a suit but he 'may not be a necessary

party in the appeal. The Division Bench of the High Court

was fully justified in holding that the suit against the

surviving defendant No. I 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.

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 property. The property cannot remain in

vacuum even for a single moment. It must vest in somebody.

Accordingly, after the death of Motibhai his property vested

in his son who was the sole heir. The endorsement of

Chimanrai, his widow Chhotiba and daughter Taralaxmibai on

the notices at the most would amount to an admission. The

contention raised on behalf of the defendant-appellant is

that he would not have purchased the mortgagee rights from

Ganpatram if such a statement had not been made by

Chimanrai, his widow Chhotiba and his daughter Taralaxmibai

and, therefore, they would be estopped from taking up a

different stand from the one taken by them earlier. In

substance, the question is whether the endorsements would

amount to estoppel.

The difference between admission and estoppel is a

marked one. Admissions being declarations against an

interest are good evidence but they are not conclusive and a

party is always at liberty to withdraw admissions by proving

that they are either mistaken or untrue. But estoppel

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creates an absolute bar. In this state of

176

the legal position, if the endorsement made by Chimanrai or

by his widow, Chhotiba or his daughter Taralaxmibai amounts

to an estoppel they or their transferees would be prevented

from claiming the property.

It may be pointed out that estoppel deals with

questions of facts and not of rights. A man is not estopped

from asserting a right which he had said that he will not

assert. It is also a well-known principle that there can be

no estoppel against a statute. After the death of Motibhai

his son Chimanrai succeeded in law.

To bring the case within the scope of estoppel as

defined in section ] I 5 of the Evidence Act: t I ) there

must be a representation by a person or his authorised agent

to another in any form a declaration, act or omission; (2)

the representation must have been of the existence of a fact

and not of promises de futuro or intention which might or

might not be enforceable in contract; (3) the representation

must have been meant to be relied upon; (4) there must have

been belief on the part of the other party in its truth; (5)

there must have been action on the faith of that

declaration, act or omission, that is to say, the

declaration, act or omission must have actually caused

another to act on the faith of it, and to alter his former

position to his prejudice or detriment; (6) 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.

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. I 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. I 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

177

ingredients of section 115 of the Evidence Act have been

fulfilled. The view taken by the Division Bench of the High

Court is fully warranted by law.

For the foregoing discussion we find no force in this

appeal. It is accordingly dismissed with costs.

S.R. Appeal dismissed.

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