GANGA PRASAD SAO Vs. DULARI SARAN SINGH

JUDGEMENT

(1.) The plaintiffs are the appellants in this appeal which arises out of an action in which they asked for a mortgage decree against certain properties other than those which are the subject pf their mortgage which was dated September 11,1926. This mortgage covered an area of 4.24 acres consisting of plots Nos. 1787, 1759 and 1769. The mortgagor was the karta of a joint Hindu family, a family who were co-sharers as regards these properties, and others with other persons not members of the joint family. It is clear, therefore, that the position of the joint family together with those persons who were their co-sharers and who were, as I say, not parties to this action, was that of tenants-in-common. In 1929 as between the joint family and these other persons a partition took place and in lieu of plot No. 1757 and the other plots which J have mentioned as the subject- matter of the mortgage, they obtained No. 1759 (which was one of the old plots) and plots Nos. 1771 to 1776. These plots- were about an acre in excess of the area which the mortgage of September 11, 1926, covered. The defendant- respondent comes in under a purchase immediately after the partition of plots Nos. 1771 to 1776 on July 30, 1930. We are not very seriously concerned with this purchase, however, although the issues which were raised in the Court below on behalf of the respondent had been decided in his favour. The matter is to be determined on the question of law. It is only necessary to state that the lower Appellate Court came to the conclusion that the doctrine of substitution did not apply in this case as this was an anomalous mortgage. I should perhaps have stated that under the mortgage deed itself the plaintiffs were to be in possession for five years, and, after that period, to continue to do so if they chose. If they decided not to take that course, they could sue for the mortgage money. The mortgage being an anomalous mortgage as I have stated, the Judge in the Court below held that tin matter was governed by Section 98, Transfer of Property Act, and the general principles of law did not apply: by that I mean the doctrine of substitution. In my opinion, so far as the effect of Section 98 is concerned, the learned Judge is clearly wrong. But in any event the point taken by the Judge in the Court below would not bar the plaintiff's claim as against what I may call the substituted properties as the mortgage deed itself makes a provision for substitution as will appear from the following clause: If the said rehandar, after the expiry of the term of the rehan, does not like to1 keep the rehan intact, in that case the said rehandar shall be competent to realize the said rehan money from the person and the mortgaged and other movable and immovable, nami and benami properties of me, the executant, my heirs and representatives by taking proper steps.

(2.) But I am not proposing to decide the case on that footing. The term of the bond which I have just read was a point advanced by Mr. Jayaswal but not very seriously pressed. The contention made on behalf of the appellants is that the principle as laid down in the leading case in Byjnath Lall V/s. Ramoodeen Chowdhury 1 IA 106 : 21WRPC 233 : 3 Sar. 333 : 2 Suther 42 (PC), and followed subsequently in Mohammad Afzal Khan V/s. Abdul Rahman 59 IA 405 : 139 Ind. Cas. 85 : AIR 1932 PC 235 : 13 Lah. 702 : Ind. Rul. (1932) PC 285 : 9 OWN 829 : 36 CWN 1129 : 36 LW 456 : (1932) MWN 1063 : 63MLJ 664 : (1932) ALJ 909 : LR 13 A 350 : 16 RD 522 :56 CLJ 324 :35 Bom. L.R. 1 : 34 PLR 63 (PC), applies. The principle there laid down was that in the case of a mortgage of an undivided share the mortgage may be enforced against properties "which, under a batuiara or revenue partition, have been allotted in lieu of" the share of the actual mortgage. The same principle as I have said was followed in the later case Mohammad Afzal Khan V/s. Abdul Rahman 59 IA 405 : 139 Ind. Cas. 85 : AIR 1932 PC 235 : 13 Lah. 702 : Ind. Rul. (1932) PC 285 : 9 OWN 829 : 36 CWN 1129 : 36 LW 456 : (1932) MWN 1063 : 63MLJ 664 : (1932) ALJ 909 : LR 13 A 350 : 16 RD 522 :56 CLJ 324 :35 Bom. L.R. 1 : 34 PLR 63 (PC) reported in Vol. 59 of the Indian Appeals. Mr. De on behalf of the purchaser-respondent contends in the first instance that the-defendant-mortgagor had no right to mortgage his undivided share and, should he do so, the result would be the same as in Balgobind Das V/s. Narain Lal 20 IA 116 : 15 A 339 : 6 Sar. 313 (PC). But the answer to that is the statement which I made at the commencement of my observation, namely, that this was the case of one party being a joint family mortgaging what they were clearly entitled to mortgage having regard to the fact that their co-sharers were not members of the same family but persons other than members of the joint family They were, therefore, in a position of tenants-in-common as I have already stated. It was a mortgage, to repeat himself, by the whole of the joint Hindu family represented by the karta and not a mortgage of an undivided share by one member or some members or a number of persons comprising a joint family. It is exactly that case to which their Lordships of the Judicial Committee of the Privy Council in Byjnath Lall V/s. Ramoodeen Chowdhury 1 IA 106 : 21WRPC 233 : 3 Sar. 333 : 2 Suther 42 (PC), refer. At p. 119" of the Report Sir Montague E. Smith is reported to have made this statement: Now, what was the subject of this mortgage? It was an undivided moiety in two out of three Villages forming a joint and undivided estate. The sharers, however, do not appear to have been members of a joint and undivided Hindu family, but to have enjoyed their respective shares (at all events their shares in two villages named in severalty). It is, therefore, clear that the mortgagor had power to pledge his own undivided share in these villages; but it is also clear that he could not, by so doing, affect the interest of the other sharers in them, and that the persons who took the security took it subject to the right of those sharers to enforce a partition, and thereby to convert what was an undivided share of the whole into a defined portion held in severalty.

(3.) I want to repeat at this stage that this was not a mortgage by one member of a Hindu family; it was a mortgage by all the members of a Hindu family forming together with their other co-sharers, tenants-in-common. The facts are exactly met by the extract of the judgment of the Privy Council I have just read. Again similar reference is made at p. 411 of 59 I A in the case of Mohammad Afzal Khan V/s. Abdul Rahman 59 IA 405 : 139 Ind. Cas. 85 : AIR 1932 PC 235 : 13 Lah. 702 : Ind. Rul. (1932) PC 285 : 9 OWN 829 : 36 CWN 1129 : 36 LW 456 : (1932) MWN 1063 : 63MLJ 664 : (1932) ALJ 909 : LR 13 A 350 : 16 RD 522 :56 CLJ 324 :35 Bom. L.R. 1 : 34 PLR 63 (PC). It would appear from the facts of the present case that these plots were in separate possession of this family; whether they were in possession of other plots is quite immaterial. In those circumstances it would quite clearly be a case covered by the authorities to which I have referred supposing that the mortgage bad been of the undivided interest in these plots. It does not appear exactly what the interest of the family in the whole property was--I mean what proportion of the 16 annas. But supposing it had been eight annas, if the mortgage had been of eight annas interest in these properties, there is no doubt, as I have stated that the principle laid down by their Lordships of the Judicial Committee of the Privy Council would have applied. Does it make any difference if this one co-sharer was one tenant-in-common represented by the joint Hindu family and purported to mortgage 16 annas interest--the interest mortgaged under the mortgage deed? I cannot say that it does. What I understand the mortgage deed to be is the mortgage of the whole of the joint family's interest in the common tenancy: to put it in other words, the plots mortgaged represented in substance the total share of the joint family in the joint family property or, perhaps more properly described, in the common tenancies. If it represented the whole 16 annas of these plots which was in excess of the mortgagor's share, it might have given rise to certain difficulties; but with that we are not concerned. I repeat myself by stating that I cannot say that the mere mention of 16 annas of these properties makes any difference to the application of the principle, especially having regard to the fact that there is a clear representation, and statement at the end of the mortgage deed that these properties were joint with other properties. It is impossible in my judgment to distinguish this case from the facts of the cases of the Privy Council to which I have made reference. It seems to me, therefore, that the decision of the learned Judge was wrong. I would add one word as regards Section 98, Transfer of Property Act, which provides that, "In the case of an anomalous mortgage, the rights and liabilities of the parties shall be determined by the deed". I understand that to mean that so far as the Act provides for the rights and liabilities of the mortgagor, these provisions do not apply to the case of an anomalous mortgage. An anomalous mortgage is governed by the deed itself but substitution is a general principle of law not provided for in the Transfer of Property Act and in my judgment Section 98 in no way affects it. It would lead to rather absurd and unjust results if one were to hold otherwise. In my opinion the learned Judge^ in the Court below was wrong and his proper action should have been to remand the case to the trial Court, as he intimated in the latter part of his judgment, for the purpose of determining what proportion of the substituted plots should be the subject-matter of the decree as representing the proportion of the joint property which was mortgaged under the mortgage deed. I should have referred to Section 99, Estates Partition Act. I would, therefore, allow the appeal with costs throughout as against the contesting respondent No. 7. Leave to appeal is refused.