AMOLAK RAM Vs. CHANDAN SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for contribution brought by the plaintiffs appellants under the following circumstances: On the 1 of June, 1878, one Naubat Singh executed a mortgage in favour of Mukand Siugh and Munna Singh, the predecessors in title of the defendants first party. The mortgage comprised a 5 biswa share in the village Muzaffra, and shares in three other villages. Naubat Singh, Sher Singh and the mortgagees Mukand Singh and Munna Singh were joint owners of certain property. On the 6 of June, 1878, that is, five days after the mortgage, a partition took place between these persons, under which the whole of the village Muzaffra, including, of course, the five biswas mortgaged under the mortgage of the 1 of June, 1878, was allotted to the share of Mukand Singh and Munna Singh. On the 28 of June, 1880, Mukand Singh and the heirs of Munna Singh, who had in the meantime died, obtained a decree upon their mortgage against Naubat Singh. That was a decree for the sale of all the property comprised in the mortgage, including the 5 biswa share in Muzaffra. Before that decree was obtained, Naubat Singh and Sher Siugh had executed a mortgage in favour of the present plaintiffs on the 21 of May, 1880, mortgaging to them all the property which had fallen into their share under the partition referred to above, and another village Atrauli. That mortgage included shares in two of the villages which had been mortgaged to Mukand Singh and Munna Singh in 1878. The plaintiffs were not made parties to the suit brought by Mukand Singh and the heirs of Munna Singh upon their mortgage. The plaintiffs brought a suit upon their own mortgage of 1880 without joining in that suit the prior mortgagees, and obtained a decree on the 20 of September, 1881. In execution of that decree they purchased, on the 20 November, 1885, a 5 biswa share in Chalessar and a 10 biswa share in Khera Buzurg, which included the shares in those villages comprised in the mortgage of 1878. On the 30 of November, 1884, the decree obtained by Mukand Singh and the heirs of Munna Singh was assigned by them to Lachmi Narain, defendant No. 6. The deed of assignment contained a stipulation to the effect that Lachmi Narain was not to proceed (against the 5 biswa share of Muzaffra Execution of the decree was taken out by Lachmi Narain, and he applied for the sale of the shares in the villages Khera Buzurg and Chalessar, which the plain tiffs had purchased in execution of their own decree. The plaintiffs preferred an objection, which prevailed in the Court executing the decree. Thereupon Lachmi Narain brought a suit, and obtained a decree on the 5 of November, 1886, declaring that the villages purchased by the plaintiffs were liable to sale in execution of the decree of 1880. In order to save the property from sale in pursuance of this decree, the plaintiffs discharged the decree of 1880, and brought the present suit for contribution against the principal defendantsj the legal representatives of Mukand Singh and Munna Singh, upon the ground that the 5 biswa share of Muzaffra mortgaged to Mukand Singh and Munna Singh in 1878, and allotted to their share by partition, was liable to contribute rateably towards the mortgage-debt. The suit was resisted on the ground that at the time of the partition it was agreed between the mortgagor and the mortgagees that the 5 biswa share in the village Muzaffra should be released from liability, and should not be deemed to be a part of the mortgaged property. This contention found favour with both the Courts below, and those Courts, holding that it was intended that the mortgage should not be enforced against the village Muzaffra, and that the village in question was consequently not liable under the mortgage of 1878, have dismissed the suit.

(2.) The plaintiffs have preferred this appeal, and two contentions have been raised on their behalf. The first is that, notwithstanding the partition, the share in Muzaffra was still liable under the mortgage; the second contention is, that the defendants are estopped from asserting that the village in question is no longer liable under the mortgage of 1878 and the decree obtained on foot of it.

(3.) As regards the first contention, it may be observed that the lower appellate Court has found that at the time of partition both the parties to the mortgage intended that the mortgage should not be enforced against Muzaffra. That must be taken to be a finding of fact, and cannot be challenged in second appeal. In the next place, it has been held by their Lordships of the Privy Council in Byjnath Lall V/s. Ramoodeen Chowdry (1874) L.R. 11 A. 106 that the mortgage of an undivided share which under a partition has been allotted to another co-sharer cannot, in the absence of of fraud, be enforced by the mortgagee against the share originally mortgaged, and that the mortgagee's sole remedy is to proceed against the share which has been allotted to his mortgagor in lieu of the share mortgaged. The principle of this ruling was followed by the Calcutta High Court in Hem Chunder Ghose V. Thako Moni Debi (1893) I.L.R. 20 Calc. 553. The learned Judges observed in that case: "The mortgage was subject to the right of those sharers to enforce a partition, and, as their Lordships held in the cases referred to, thereby to convert what was an undivided share of the whole into a defined portion held in severalty. In the absence, therefore, of any fraud in effecting the partition, plaintiff has no right to proceed against that portion of the undivided mortgaged property which, on partition, was allotted to the defendants, but he can proceed against that portion of the undivided property which was allotted to the mortgagors defendants in substitution of their undivided share in the portion mortgaged." Consequently after the partition which took place in 1878, as to which there is no suggestion at all of fraud or collusion, the mortgage of 1878 could not be enforced against the 5 biswa share in the village Muzaffra which passed out of the share of the mortgagor under the partition. The plaintiffs, therefore, cannot claim that the said share was still liable to contribute towards the payment of the mortgage debt.