Availability of rule of estoppels.

This appeal arises in a suit for redemption in which the appellant was the plaintiff. The plaintiff and his father usufructuarily mortgaged in favour of the defendant the! two suit items of properties together with another item of property for securing a loan of Rs.400 by a deed Exhibit A-1, dated 12th October, 1934. There is no dispute as regards the third item as it has been allowed to be redeemed. But in so far as the suit items are concerned the defence is that they belonged to the Rajah of Ramnad from whom the defendant took an assignment and that consequently the plaintiff had no title to the properties to entitle him to claim recovery of the properties by way of redemption.

The suit items are situated in the Ramnad Samasthanam and originally belonged to the plaintiff’s father and in execution of a Rent decree the landholder himself purchased the property under two sale certificates, dated 5th December, 1933 and 23rd January, 1934 Exhibits B-11 and B-12. Notwithstanding these purchases subsequently patta appears to have been issued in favour of the plaintiff’s father for faslis 1343 and 1345, Exhibits A-2 and A-3, dated 20th June, 1934 and 28th June, 1933 and the plaintiff’s father continued to pay the kist till 1937, Exhibit A-8 being the last kist receipt in favour of the plaintiff, dated 18th July, 1937. In August 1938, the plaintiff claimed the suit items as belonging to his sister Karuppayi stating that he held the same under a lease and preferred a criminal complaint against the defendant that he trespassed into the said items. His sister’s (Karuppayi’s) title is said to have arisen by assignment of the suit properties by the landholder on receipt of a nazarana from her. The attitude the plaintiff took in those proceedings was that the title to the properties vested in his sister and that he was a lessee and therefore entitled to be in possession, and that the defendant, though he was in possession as a usufructuary mortgagee, was not entitled, to be in possessor, in effect taking the position that he had no title to the property and that the title vested in his sister. There is evidence to show that Karuppayi made payment of a nazar amount of Rs.76-6-0, as per Exhibit B-4 the receipt granted by the estate dated 1st June, 1938. Earlier, on 4th June, 1937, the plaintiff made an application for the grant of a patta offering to pay a sum of Rs.76-6-0 as nazarana but expressed his inability later as can be seen from Exhibit B-6, dated 21st November, 1937. Probably after the statement Exhibit B-6, his sister paid the nazarana and claimed an assignment of the lands. The defendant also applied to the landholder for an assignment of the suit land and orders were passed on 1st December, 1938, granting the assignment to the defendant if he paid a sum of Rs.100 besides the arrears of Rs.36-6-0 outstanding on the said date. The said amount having been paid an order was passed by the estate manager assigning the suit lands to the defendant (Vide Exhibit B-10, dated 16th November, 1939). Exhibits B-13 and B-14 dated 24th June, 1940 and 25th June, 1945, respectively are the pattas issued by the estate in favour of the defendant. As regards payment of kist, there is one payment of kist made by Karuppayi on 10th July, 1938, Exhibit A-9 and after the issue of the pattas kist was invariably paid by the defendant.

The main contention of the appellant is that the defendant having taken possession of the property as usufructuary mortgagee from the plaintiff and his father is estopped from denying the title of the mortgagors that the defendant having obtained possession on the assumption that the mortgagors had title it would not be open to him to resist delivery of possession and that any right which he claims he could establish only after surrendering possession. Reliance is therefore placed on the rule of estoppel that the mortgagee cannot deny the title of his mortgagor having obtained the property from the mortgagor. It is wel