JADU NATH ROY Vs. PARAMESWAR MULLICK

JUDGEMENT

(1.) BY three English mortgages executed in 1023 and 1924 one Bhuban Mohan Mullick (a Hindu governed by the Dayabhaga) mortgaged to appellant No.1 and the father of. the other four appellants his one-eighth share in certain immovable property. The capital sums secured amounted to Rs. 2,35,000. On April 24, 1925, he died intestate, leaving him surviving a widow Sm. Annabati Dassi, a minor son Biswanath and an unmarried daughter Sm. Parbati Dassi (also a married daughter who need not here be further mentioned ). BY the decree under appeal, which is dated January 28, 1937, it has been held by the High Court at Fort William in Bengal that the maintenance of the widow and unmarried daughter is a charge upon the interest of the mortgagees under the mortgages. . This conclusion is prima facie opposed to the rights of the parties; indeed it does not in the end appear to have been doubted by the Courts in India that while the ladies would have a claim for a charge upon any property coming to Biswanath as heir to his father, the interest of the father's mortgagees was not such property and is not liable upon the death of the mortgagor to be burdened with the maintenance of his widow or daughter. In order to trace the steps by which a contrary result has been arrived at by the High Court it will clearly be important to bear in mind throughout that the appellants' mortgages were all taken from Bhuban Mohan in his lifetime and not from his son after his death.

(2.) THE appellants brought a suit upon their mortgages in the High Court on June 7, 1926, impleading Biswanath. THEy obtained a preliminary decree on January 12, 1928, and a final decree for sale on January 21, 1929. On January 11, 1930, they purchased the mortgaged property at the execution sale and obtained a sale certificate on February 19, 1930, in respect thereof.

(3.) THE final decree for partition as settled by the High Court is now before their Lordships on appeal but the appeal appears to turn solely on the High Court's order of July 14, 1930-a reported decision (Jadunath Roy v. Murari Mohan Mullick (1930) 35 C. W. N. 296) which must necessarily have effect upon the procedure adopted in partition cases by the Courts of the province and elsewhere. It is unfortunate that no appearance has been made by the respondents and no argument heard on their behalf with reference to that decision, but their Lordships cannot omit to examine it.