Hargobind and Another and Kishore Singh and Others vs Tota Ram

Ryves and Piqoott, JJ.—The facts of this case are sufficiently stated in the judgment of the lower appellate court, and the point in issue before us is a very narrow one. We are now satisfied after examination of the documents produced in accordance with the order of this Court of the 14th of March, 1913, that the appellant Tota Ram took his mortgage from Kishore Singh and obtained his decree against Kishore Singh and his minor son, Bhagwan Singh. It seems clear to us that Kishore Singh would not have been permitted to challenge the validity of his own mortgage, which as a matter of fact he has not attempted to do. In our opinion Tota Ram cannot be allowed to do so either. We are content to refer as authorities on this point to Bishumbhar Dayal v. Parshadi Lal (1912) 10 A. L. L. 112. considered in connection with a very recent case, that of Bakhshi Ram v. Liladhar I. L. R. (1913) All. 353. That Tota Ram is the representative in interest of Kishore Singh and cannot be permitted to challenge the mortgage, if Kishore Singh himself could not have done so, is apparent from this latter ruling as well as from the decision of the Calcutta High Court in Prayag Raj v. Sidhu Prasad Tewari I. L. R. (1913) All. 353. This case is clearly distinguishable from such a case as Radha Bai v. Kamod Singh I. L. R. (1907) All. 38 where the transfer was one expressly prohibited by law, and the contract entered into consequently against public policy was void u/s 23 of the Indian Contract Act We accordingly dismiss this appeal with costs.