ATMARAMSAO KHEDURAMSAO Vs. BHUPENDRANATH SOBHARAM

JUDGEMENT

(1.) THE appellants are plaintiffs in a mortgage suit. The mortgage was effected over a eight annas' share of a village called Risda. The mortgagor was one Brijlal and the subject of mortgage is expressed as follows: "I mortgage without possession my eight annas' share of Mouza Risda, Tahsil Baloda Bazar, District Raipur" and then are added the various rights and privileges mortgaged connected with that eight annas share. The date of the mortgage is 15th August 1922. At that date the mortgagor was a member of a joint Hindu family which was disrupted by partition in 1923. The defendants to the present suit comprise both branches of that joint family, the one branch being headed at all material times by Brijlal who since this suit was brought has died leaving behind him two major and one minor sons and the other by Sheodutt and comprising his grandson and his (Sheodutt's) sons two of whom are majors and one a minor at the time of suit which was brought in 1934. Sheodutt's branch whom we shall refer to as the non-mortgaging coparceners, are sued as the persons primarily responsible for this mortgage debt for the following reasons: By the partition the family properties, which were considerable, consisting of 9 1/2 villages, and debts, which amounted to Rs. 68,000 (including the mortgage debt), were divided up as follows: Brijlal was given three villages and some houses and was made responsible for Rs. 44,000 of the Rs. 68,000 debts together with interest thereon. That left 6 1/2 villages and Rupees 24,000 of debts partly unsecured, and partly secured by the suit mortgage. The suit mortgage debt is taken as of the value of Rs. 12,000 though there was due at the time of the suit, according to the plaint, Rs. 25,457-12-6 a major part of that being due to interest. This property and the remaining debts were divided as follows : Brijlal was directed to pay off the Rs. 12,000 unsecured debts and obtained 3 1/4 villages and the other branch was directed to pay the suit mortgage and also got 3 1/4 villages but in their 3 1/4 villages was included the village half of which was the subject-matter of the suit mortgage. In other words, though Brijlal had mortgaged his half share in the village Risda the whole of the village Risda was given on partition to the other branch, the other branch undertaking with Brijlal to pay off the mortgage. It is perhaps not quite accurate to say that the above results from the partition, for the partition was brought about apparently, though this is by no means clear, as a consequence of a reference to arbitration and was preceded by an agreement which made the above allocation. The steps so far as we can see are as follows: By an agreement come to on 1st August 1923 the sons of Sheodutt, two of them under the guardianship of Sheodutt's widow Mt. Gondibai, came to the arrangement with regard to the Rs. 68,000 and the Rs. 44,000 with the Brijlal branch and also arranged as to the debts amounting to Rs. 24,000 which were treated as joint debts owing by the family, and the various component parts were treated in the following way: Rs. 12,000 due on a bond to Balkisenseth was arranged to be paid by Brijlal. The major and minor sons of Sheodutt undertook to pay the debt of Rs. 12,000 with interest due to Atmaram Sao under the suit mortgage and they state; "Besides the above as a result of partition mouza Risda 16 annas...have fallen to the share of we people", that is to say, the sons of Sheodutt. On 28th August 1923, nearly a month after this agreement, arbitrators were appointed to settle the details of the partition. What exactly happened thereafter is not clear but both sides agree that in the result the property was so divided that the non-mortgaging coparceners got the whole of the village half of which had been mortgaged by Brijlal and that they agreed with Brijlal that they would be wholly responsible for the mortgage debt. At the same time Brijlal agreed to be responsible for the Rs. 12,000 abovementioned due to an unsecured creditor. It is common ground that Brijlal failed to pay that creditor, that the debt being a joint one the creditor was at liberty to proceed against Sheodutt's branch as well as against Brijlal, that he did so proceed, obtained a decree, and was paid by Sheodutt's branch, which in turn proceeded against Brijlal's branch got a decree, executed that decree in part tout has not as yet been able to recover the whole of the Rs. 12,000 and costs. The award and the agreement remained for a time, so long as we know, within the knowledge only of the family and the arbitrators. There was no recording in any public register of this arrangement but at latest by 1929 the mortgagee became aware that there had been a partition and that the half share mortgaged by Brijlal had gone, together with the rest of the village in question, to the other branch. Doubtless on learning those acts he was anxious about his security. He wrote to the non-mortgaging coparceners asking about his debt and he received back the following reply, dated 23rd January 1929: ...it is to be written that your letter has been received. It has been read and its contents have been noted. According to the partition as stated in the ikrarnama (deed of agreement), the amount of your khata is my liability. In this respect the settlement between us has not taken place through Court. Only within three months there will be a settlement through Court. After the settlement, I will pay your amount in full in a lump. You need not be anxious at all. I am anxious to credit the amount.

(2.) THE person signing that letter is the managing member of Sheodutt's branch and in it he accepts liability for the mortgage debt, but he is not sought to be made liable upon that contractual liability. The position taken up by the plaintiffs is that Sheodutt's branch, having accepted liability for this mortgage, took the village subject to the mortgage. Reliance is placed upon a passage in Ghose's Law of Mortgage (Edn. 5) and the case in Joy Sankari Gupta v. Bharat Chandra Birdhan (1899) 26 Cal 434 at p. 440 on which that view is based and on Bhup Singh v. Chedda Singh (1920); 7 AIR All 34 at p. 599. The learned author is concerned with the well-known rule, set out with all the authorities to date in Mayne's Hindu Law, p. 506, note (c), that where a member of a joint Hindu family mortgages an item of joint family property, (the mortgage debt not being binding on the other coparceners) and later, on a partition, that item of property is given to a coparcener other than the mortgaging coparcener, the mortgagee's right is to obtain a substitution of security for the security mentioned in the mortgage. The learned author (Ghose) observes: But if in making the allotments, the incumbrance is taken into account in valuing the share which is subject to it, the partition will not, for obvious reasons, affect the security of the mortgagee. It is hardly necessary to add that the mortgagee will not be bound by an unequal partition effected by fraud and collusion between the mortgagor and his cosharers, whether such partition is made by private arrangement or by the Court...

(3.) AFTER this, in the year 1888, the family property was privately partitioned and the entire 10 biswa share of the village was allotted to B. B's mortgage was then discharged. The mortgagee's son thereupon sued transferees from B on the mortgage executed by A in 1881 and claimed the remaining 5 biswa share which had been allotted to B at the partition. It was held that he could proceed against that share and was not bound to accept as substituted security the property which had been allotted to his mortgagor A. But here again, unfortunately, the ground on which this could be done was not disclosed. It seems to have been taken for granted that that was the only possible course. For instances, Ryves J., said at p. 547: Could Baldeo [the brother we have called B] himself, after partition, have claimed the benefit of the rule in Byjnath Lall v. Ramoodeen Chowdry (1875-76) 11 A 106? I think not. He knew that his brother was mortgaging his undivided 5 biswa share in Chauwar, and when, at the time of the partition, he accepted 10 biswas in Chauwar in exchange for something else, he knew perfectly well how it wag incumbered.