NALLAMILLI VEERAYAMMA Vs. NALLAMILLI VENKANNA

JUDGEMENT

(1.) The only question in this appeal is whether a widow is entitled to a share in a mtge. debt under the Hindu Women's Bights to Property Act, before it was amended by Act XXVI (26) of 1947. Deft. 2 & Ammi Reddi were brothers & sons of deft. 1, Venkanna. Deft. 3 is the son of deft. 2. Deft 4 is the widow of deft. 1 who died pending suit. The father & sons constituted members of a joint Hindu family. The pltf. as the widow of Ammi Reddi filed the suit for partition & for recovery of possession of her share in the joint family property under the Hindu Women's Rights to Property Act. The learned Subordinate Judge gave her a decree for partition in regard to the properties other than agricultural lands. Items 4 & 5 of Sch. B are properties mortgaged in favour of the family. Ex. D. 2 dated 7-3-1945 is the mtge. deed in respect of item 4. Ex. D. 1 dated 21-61937 is the mtge. deed in regard-to item 5. The properties secured under the aforesaid two documents consist of both agricultural & house property. The learned Subordinate Judge held that the mtge. debts are liable for partition proportionate to the value of the house property & that the pltf. is not entitled to a partition of the balance of the debt. The pltf. preferred the above appeal against the decree & judgment of the Subordinate Judge in so far as it was against her.

(2.) The solution to the problem depends upon the nature of a mtge. debt, & whether the debt is separable from the security for certain purposes. Fortunately this question had an authoritative treatment in the hands of the Judicial Committee in 'Imperial Bank of India v. Bengal National Bank, Ltd., 59 Cal 377: (AIR (18) 1931 PC 245). The facts in that case are that, as security for a loan the Bengal National Bank Issued to the-Imperial Bank of India debentures creating a floating charge upon their whole undertaking, properties, assets, interests, present & future. The debentures were not registered under the Indian Registration Act. It was conceded in that case that the debentures as they were not registered did not create a charge upon any immoveable property. The Judicial Committee held that the debentures created a charge over the debts due to the National Bank, whether secured on immoveable property or not, & therefore the Imperial Banto was entitled to the benefit of all sums received in reduction of the debts whether from the realisation of securities or otherwise. When an argument was addressed to the effect that as the debentures were not registered no charge was created In respect of the debts in favour of the Imperial Bank, the Judicial Committee negatived the contention & made the following observations:

(3.) From the aforesaid two judgments it is clear that a debt, apart from the security, can be transferred though the debt could be realised by enforcing the security by the mtgee. or an assignee from him. If it is assignable as a debt 'simpliciter' it is equally partible. Applying the aforesaid principle, I hold that the mtge. debt covered by Exs. D. 1 & D. 2 are partible & the pltf. will be entitled to her share.