The main legal point established is the significance of joinder of necessary parties in a mortgage suit and the application of Hindu law principles in determining the validity of the transfer of rights.

1. This appeal raises a number of points of law all of which could have been avoided by the joinder of the proper parties. This joinder was refused by the plaintiffs' pleader after the difficulties had been disclosed. On 17th April 1935 the pleader for the plaintiffs refused to make Gulabchand and Dhanraj parties. Now the question is: Are they necessary parties? The suit is a mortgage suit. The plaintiffs obtained, through a third party assignee, the mortgagee's rights by purchase. That purchase, however, was in conjunction with two other persons Premraj and Dhanraj. Premraj died and his estate went to Dhanraj and Gulabchand. Dhanraj and Gulabchand purported to transfer or (as it is put in argument) relinquish their rights in favour of plaintiffs for the sum of Rs. 75. That transaction was oral. The Court has held that it was a valid transfer under the provisions of S. 54, T.P. Act, on the ground that there was delivery of possession, that the consideration was under Rs. 100, that the mortgage debt is immovable property and therefore it can be sold, if of the value, of under Rs. 100, by delivery. On appeal it is pointed out that S. 54 is concerned with two kinds of sales (1) where a registered instrument is required (2) where the transfer can be either by registered instrument or by delivery of possession. What is meant by delivery is stated:

Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

2. What was transferred here were mortgagees' rights. Doubtless those rights are rights in immovable property : 29 CAL 1 ('02) 29 Cal 1 : 5 CWN 821 (FB), Paresh Nath v. Nabogopal, 1933 AIR(Lah) 210, Banarsi Das v. Ram Chander, 1930 AIR(All) 110, Jang Bahadur v. Bhagatram Sheoprasad.,1924 AIR(All) 796. But they are not in our opinion rights of (which possession can be taken. There is a wide difference between a transfer made by a mortgagor and a transfer made by a mortgagee: 50 ALL 986 ('28) 15 : AIR 1928 All 726 : 118 IC 177 : 50 All 986 : 26 ALJ 1084 (FB), Sohan Lal v. Mohan Lal., 1933 AIR(Cal) 325, Umeshchandra Mandal v. Hemangachandra Maiti What the mortgagor has is the land which is immovable tangible property and property of which possession can be delivered. What a mortgagee has depends to some extent on the kind of mortgage but is broadly stated in S. 58, T.P. Act; ''A mortgage is the transfer of an interest in specific immovable property.'' That interest, in our opinion, (at any rate in mortgages which do not involve the immediate transfer of either legal title or possession) is an intangible right in immovable property and cannot be transferred prima facie without a written instrument.

3. But it is said that this is not a case of transfer but of relinquishment. One starts with the mortgagees composed of the mortgagee-plaintiffs and Dhanraj and Gulabchand. Regard them as partners, or regard them as co-tenants. On either view this, it is said, is a case of relinquishment. Therefore, the rules relating to relinquishment say, by a Hindu widow, apply. There is no transfer of title but merely an obliteration of rights. Consequently the document (there is a receipt) effecting this obliteration does not require registration. Alternatively the obliteration can be orally effected. This question was considered by one of us in Dattatraya Govind v. Narayan Gangaram, 1936 AIR(Nag) 186. It was pointed out there that we start with this fundamental principle, namely that once a title or an estate has vested in a person he cannot rid himself of it except by death or by one of the modes of transfer recognized by law. Discussing the position of the heir-at-law in England it was said :

If it had been a statement of the English law as it obtains today, it would, perhaps, be unassailable, but that is because the Land Transfer Act of 1897 has grafted a statutory exception on to the general law, and now vests an intestate's property in his personal represe