JUDGMENT 1. This appeal arises out of a suit brought by a mortgagee to realize his debt by the sale of the mortgaged property. The mortgaged property unfortunately for the mortgagee consists of 4 nontransferable occupancy jotes. The lower Appellate Court has found that the Defendants Nos. 6 to 11, who are the purchasers of the jotes at a sale held in execution of a money-decree and who are also the landlords of the jotes, are estopped from pleading that the jotes are not transferable. It has therefore given the Plaintiff a decree. 2. The Defendants Nos. 6 to 11 appeal. They contend that they never represented that the jotes were transferable without their consent and (2) that their conduct in no way amounted to an estoppel. 3. The facts are that in 1894 the Defendants Nos. 6 to 11 sold the 4 jotes in execution of a money-decree. The jotes were purchased by one Banwari Lal Ghose, who, however, did not take possession He re-sold the jotes to the former tenant" 4. who apparently obtained the money to buy them back from the father of the Plaintiff, to whom they mortgaged the jotes on the 21st September 1898. Subsequently, the Defendants NOS. 6 to 11 again sold the jotes in execution of a money-decree, obtained by one Mahim Chandra Shaha, who had a money-decree against the tenants. The Defendants NOS. 6 to 11 attached this decree, executed it and themselves became the purchasers. 5. The District Judge says: "In this case they were appearing not in the character of landlords, but as ordinary purchasers and in order to realise their dues they sold up the jotes. By doing so, they raised the presumption that the holding was transferable. Having done so and got their relief, I do not think they can now come forward in another capacity and say that the holding is not transferable." 6. The learned pleader for the Appellant contends that the Defendants Nos. 6 to 11 never represented that the jotes were transferable without their consent. By selling them, they represented only that they were transferable with their consent. 7. He further urges that they bought the jotes in May and July 1899, and the Plaintiff's mortgage was executed on the 21st September 1898; so there was no estoppel in pais. 8. We must admit the force of these arguments. Dr. By selling them, they represented only that they were transferable with their consent. 7. He further urges that they bought the jotes in May and July 1899, and the Plaintiff's mortgage was executed on the 21st September 1898; so there was no estoppel in pais. 8. We must admit the force of these arguments. Dr. Bash Behary Ghose for the Respondents replies that the provisions of sec. 115 of the Evidence Act are not exhaustive, that according to English law, the Defendants by their purchase in 1899, only purchased what the mortgagors had to sell, viz., the equity of redemption, and they are therefore now in the place of the mortgagors and so cannot in equity resist the claim of the mortgagee, and finally, on the strength of a ruling reported at Ayenuddin Nashyo v. Srish Chandra Banerjee 11 C. W. N. 76 (1906), that the question of transferability does not arise in this case. He further urges as cross objection that the Plaintiff has a mortgage over the 16 annas of the jotes and not over only a 9 annas 4 pie share in them. 9. We are of opinion that the English law of mortgage is not applicable to this case. The law of estoppel in force in this country is contained in sec. 115 of the Evidence Act. The Appellants are clearly not estopped from pleading and proving, as they have done, that the jotes are not transferable without their consent. That being so, the Plaintiff's mortgage is of no avail. The case of Ayenuddin Nashyo v. Srish Chandra Banerjee 11 C. W. N. 76 (1906) on which the learned pleader for the Respondent relies has no application to this case. 10. In that case the contest was, between a mortgagee and the purchasers of jotes sold at the instance of certain co-sharer landlords, who bought only the right title and interest of the tenant. None of the landlords were parties to the suit. The facts of the present case are entirely different. 10. In that case the contest was, between a mortgagee and the purchasers of jotes sold at the instance of certain co-sharer landlords, who bought only the right title and interest of the tenant. None of the landlords were parties to the suit. The facts of the present case are entirely different. But in that case it is said: ''No doubt if the question was between the assignee of the interest of Dharma Dass, the tenant," (as is the case in the present suit) "and the landlord the Plaintiff could not recover without proving that they were transferable according to custom and usage." So that according to this dictum, the question of the transferability of the jotes does arise in this case. We must therefore decree this appeal, which we accordingly do with costs. The cross appeal only arises if the appeal is unsuccessful. When we hold that the Plaintiff is not entitled to any thing, It is immaterial what share of the jotes he would have a right to, if his mortgage had been valid. 11. The cross appeal is therefore dismissed. Appeal and cross-appeal dismissed.