BATAKRISHNA PRASAD SUKUL Vs. APURBO KRISHNA MITRA

JUDGEMENT

(1.) The principle governing this case is stated first of all in Byjnath I all v. Ramoodeen Chowdry (1873) 1 I.A. 106 in the course of the judgment of the Judicial Committee of the Privy Council pronounced by Sir Montague Smith: 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 in severalty. It is therefore dear that the mortgagor bad power to pledge his own undivided share in these villages; but it is also dear 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.

(2.) A corollary of that is found in Mohammad Afzal Khan V/s. Abdul Rahman A.I.R.1932. P.C. 235 where their Lordships of the Judicial Committee of the Privy Council made this statement: If the mortgage therefore is followed by a partition, and the mortgaged properties are allotted to the other co-sharers, they take those properties, in the absence of fraud, free from the mortgage, and the mortgagee can proceed only against the properties allotted to the mortgagor in substitution of his undivided share.

(3.) The only difficulty which arises in this case is because of the fact that the mortgagor had properties other than those which were mortgaged, some of which were the subject-matter of the partition which has given rise to this dispute. Now, as a result of that partition, the proper, ties, which the mortgagor got in lieu of the properties which he held before the partition, necessarily were in substitution for both the properties mortgaged and the properties that were not mortgaged: that necessarily resulted. It is argued that as some of the properties which the mortgagor possessed before partition were not mortgaged, and, as the properties given in substitution could not be identified as properties given in substitution for specific properties held by the mortgagor before partition, the mortgagee would be entitled to sell that proportion of the new proper, ties in the proportion which the mortgaged properties bore to the mortgagor's unmortgaged properties. I think I have stated sufficiently clearly the argument which Sir Sultan Ahmed puts forward in this case and which it seems to me, apart from other circumstances, would have prevailed.