UMAR HUSSAIN KAJI Vs. SAKHARAM VISHNU PALSULE

JUDGEMENT

(1.) Although the facts of this appeal are rather complicated, as is usual in cases coming from Ratnagiri, the point for decision lies within a narrow compass, and is also covered by authority. The plaintiff sued to recover possession of the property which had fallen to him on partition. Prior to the partition his co-sharers had mortgaged the property at different times to two persons Ghate and Shejwalkar, whose interests are represented by the defendants. It has been found by both the Courts that the fact of these mortgages was concealed by the mortgagors co-sharers from the plaintiff, who was no party to the mortgages, and that the defendant is not aware of the partition. In this state of affairs the plaintiff sued to recover possession of the land in dispute, which is Survey No. 23, pot No. 1. The defendants, who were in possession, opposed this claim.

(2.) The first Court, the Subordinate Judge of Rajapur, dismissed the suit, but on appeal by the plaintiff the District Judge awarded the plaintiff possession without calling on him to redeem the defendants. The defendants appeal.

(3.) I have stated the facts very briefly inasmuch as the question for decision is a pure point of law, and is also covered by authority. Here we have a case where at the time of partition part of the land partitioned is already subject to mortgage to which the person to whom the land is assigned on partition was not a party, and where he has no knowledge of the mortgages executed by his co-sharers. There is a distinct finding that there has been no fraud on the part of the plaintiff. The leading case of Byjnath Lall V/s. Ramoodeen Chowdry (1873-74) L.R. I.A. 106 and the numerous other cases which follow that, e.g., Hem Chunder Ghose V/s. Thako Moni Debi (1893) I.L.R. 20 Cal. 533 and Lakshman V/s. Gopal (1898) I.L.R. 23 Bom. 385, show that in such cases the co-sharer to whom the land is allotted on partition without knowledge of the previous mortgage and in the absence of fraud on his part takes his share free of the mortgage, and the mortgagee's remedy is against the land which falls to the share of his mortgagor on partition. If the subject of the mortgagee is an undivided share, and the joint sharers effect a partition, the mortgagee must pursue his remedy against the share allotted in severalty to his mortgagor, and in the absence of fraud or collusion co-sharers of the mortgagor would hold their shares free of the mortgage. It appears, therefore, that the plaintiff is entitled to possession of the land which fell to his share at partition free of the mortgage, and the mortgagee's rights would be against the land which has fallen to the share of the original mortgagors Bhimrao and Ramkrishna. The case of Doddappa V/s. Somappa is one in which the co-sharer had knowledge of the mortgage, and in any case we are bound to follow the authority of the Privy Council, which has been followed by all the High Courts, The cases are collected in Mulla's Transfer of Property Act, p. 424, under Section 73.