Full Judgment
Basil Scott, Kt., C.J.
1. The contest in this appeal is between the representatives of a mortgagee and the heir of a mortgagor.
2. The mortgage in question was of certain Deshgat vatan property effected in the year 1850 between the holder of the vatan, who was the father of the defendants, and the person under whom the plaintiffs claim. The property mortgaged is described usamchi khasgat deshgati paiki jamin (land out of our private deshgat or property attached to our hereditary office). The mortgage being ostensibly of land attached to an hereditary office was under the rule enunciated in Kalu Narayan Kulkarni v. Hanmappa bin Bhimappa ILR (1879) 5 Bom. 435, approved of by the Privy Council in Padapa v. Swamirao ILR (1900) 24 Bom. 556, in its inception void against the heir of the mortgagor by reason of the provisions of Regulation XVI of 1827.
3. It is contended, however, on behalf of the mortgagee's representatives that by reason of a certain settlement effected between Government and the mortgagor subsequent to the year 1861, the estate of the was enlarged into an estate similar to that of any owner of private property and that therefore the mortgagee's representatives are entitled to claim to hold the mortgaged property under the mortgage against the heir of the mortgagor. It is argued that the settlement, which is evidenced by an application in the year 1862, a Government Resolution in the year 1890, and a sanad in the year 1894 issued subsequent to the death of the mortgagor, had the effect of converting the property into his absolute estate.
4. Without admitting that the interpretation sought to be put upon those documents on behalf of the appellants is correct, but assuming for the purpose of argument that it is so, we think that the altered position cannot affect the representatives of the mortgagor. At the date of the mortgage in 1850, the mortgagee knew that the property which was being made over to him in mortgage was land appurtenant to an hereditary office. He knew or ought to have know n that by reason of the provisions of the Regulation of 1827, that land was inalienable beyond the life of the incumbent. He, therefore, cannot allege that he has any title by estoppel under which any enlarged estate coming to the mortgagor subsequent to the mortgage would ensure for the benefit of the mortgagee; for a title by estoppel rests upon representation made by the grantor and acted upon by the grantee. See Mussamat Udey v. Mussamat Ladu (1870) 6 Beng. L.R. 288; Section 43 of the Transfer of Property Act. We hold, therefore, that the mortgagee took merely such estate as the holder of the vatan property was capable of conveying to a mortgagee in 1850, and that being so, he cannot claim to hold under the mortgage after the death of the mortgagor.
5. We affirm the decree of the lower Court with this variation, that the plaintiffs do bear the costs throughout.