RAJAT KAMINI DEBI Vs. RAJA SATYA NIRANJAN CHAKRABARTY

JUDGEMENT

(1.) This is an appeal preferred by the defendants Nos, 5, 8 and 9 against the decision of the learned District Judge of Birbhum, dated the 1st of June 1917, affirming the decision of the Munsif at Suri. The suit was brought by the plaintiff as an assignee to recover a certain sum and the value of certain rice payable and deliverable to a Hindu widow. The widow, whose name is Srimati Provash Kamini Debi, in consideration of releasing her life---interest in her husband s properties obtained from her two: brothers in-law---brothers of her deceased husband---a document which is called a khorposhnama, that is, a deed of maintenance. Under the terms of that document, she was entitled to receive the sum of Rs. 100 per annum in cash and 39 maunds of rice. The plaintiff purchased from that Hindu widow, who was the defendant No. 7 in the suit, this right. Under the khorposhnama, the properties set out in the schedule to the plaint were charged with the payment of the sum and rice payable and deliverable to the widow. The plaintiff subsequently acquired a portion of the property mentioned in the khorposhnama from the purchaser thereof at a sale in execution of a decree for rent that had been obtained by the landlord. But it has been found as a fact and cannot be challenged in this Court that the sale was not made free from encumbrances and that the encumbrance created by the khorposhnama as regards the property purchased by the plaintiff has not been annulled. The plaintiff then brought the present suit, and it was partly decreed by the Court of first instance for the sum of Rs. 773 odd. The learned Judge of the lower Appellate Court has decreed the whole of the suit against the properties not purchased by the plaintiff. He has held that the properties of the defendants, which are all the properties other than those acquired by the plaintiff, are liable to pay the whole of the arrears, and the reason he thinks so is that there is a clear stipulation in the khorposhnama that the grantee can proceed against any of the mortgaged properties. That obviously is an insufficient reason. The case is covered quite clearly by the las few words of the final Clause of Section 60 of the Transfer of Property Act. A mortgagee having become a partial owner of the equity of redemption is bound to apportion the money which he seeks to recover as between the properties acquired by him which were subject to the charge and the rest of the mortgaged properties. The reason given by the learned Judge that the deed authorises the mortgagee to proceed against any of the mortgaged properties means nothing. It only states what the law provides.

(2.) The other point raised is not well founded and that is this: That this is a personal right to the Hindu widow. It is not a personal right at all. It is a claim which the widow had under a deed of covenant for which there was a charge on certain properties, and it was capable of transfer in the same manner as in other cases. The mere fact that the grantee of the deed of covenant happens to be a Hindu widow does not prevent her from transferring her interest, if she thinks fit so to do.

(3.) The judgment and decree of the learned Judge of the lower Appellate Court must be set aside and in lieu of the findings arrived at there must be a declaration that the plaintiff is entitled to recover the arrears that have been found due in the lower Appellate Court from the properties acquired by him and the other properties mentioned in the charge by the khorposhnama, and the case will be remitted to the primary Court for the purpose of ascertaining what amount of the arrears ought to be borne and paid by the properties held by the defendants. There will be no order as to the costs of this appeal, both parties having partially succeeded. The order of costs made by the lower Appellate Court will remain as it is. Cumino, J.-I agree.