AFTAB BEGAM Vs. MUHAMMAD AYUB

JUDGEMENT

(1.) THIS appeal has been argued on one single point. It relates to a shop in Landour, which together with other properties was mortgaged by the first four defendants to the defendants Nos. 5 to 12. These defendants brought a suit against their mortgagors and obtained a decree. In execution of that decree they have applied for the sale of the shop in suit. The present suit was instituted by the plaintiff for a declaration that the shop, was not liable to sale. The plaintiff has died during the course of the proceedings and the appellants are his heirs. The facts on which they based their claim are that in 1905 the 13 defendant instituted a partition suit against the first four defendants, and obtained a decree declaring her right over 4 sihams out of 84 in this shop find in nine other houses and a grove. These partition proceedings were subsequent to the mortgage, and the mortgagees were not parties to them. The partition decree is, therefore, not binding on the mortgagees. The plaintiff's case, and the case on which the defendant No. 13 obtained partition, was that the shop originally belonged to one Ghulam Muhammad,, whose heirs were admittedly the first four and the 13th defendants. It is now found as a fact by both the courts below that this particular shop did not belong to Ghulam Muhammad. The 13 defendant, therefore, had no right to any share in it, and as regards this shop had no right to the partition decree which she obtained. In the partition which was subsequently carried out she was allotted 6/7 of the shop in suit. Her rights have been subsequently transferred to the plaintiff. The appellant's contention is that the doctrine of substituted security should be applied, and that the mortgage, instead of attaching to the properties mortgaged, should be transferred to the properties which the first four defendants obtained in lieu of the 6/7 share given to the 13th defendant in this shop. THIS contention has been repelled by the courts below, and, in our opinion, rightly so. The. doctrine of substituted security only applies where possession of a particular property has been awarded to one party in lieu of an undivided share in the whole property which was the subject of partition, it does not apply when the entire property mortgaged belonged to the mortgagors, and a person with no title has subsequently obtained possession of a portion of it behind the back of the mortgagees. The mortgage when executed was a perfectly valid mortgage, and the mortgagees are entitled to take out execution against any portion of the mortgaged property. Their right cannot be affected by any subsequent transfer to the plaintiff or his predecessor in interest. We accordingly affirm the decision of the court below and dismiss the appeal with costs.