Barhamdeo Narain and Others vs Hajari Lal and Others

Atkinson, J.—These four second appeals are analogous, and come before me from the decision of Mr. Scroope as Additional District Judge of Patna reversing the decision of the Munsif, who had granted a decree in these cases to the plaintiffs. Second Appeal No. 628 is taken as a test case and the decision in it governs Second Appeals Nos. 656, 657 and 658 of 1916. The actions were brought primarily to recover rent due by the first party defendants in each of these second appeals. It is necessary, however, to state some facts of the case in order to understand the matters which arise for decision and determination. The plaintiffs are admittedly the maliks to the extent of 12-annas share in the village of Jagatmanpur Beahpur; and the two pro forma defendants, Ishwar Sahai and Narsingh Sahay, are the proprietors of the remaining four-annas share. Defendants Nos. 1 and 2 represent the tenants of the holdings in respect of which the suit for rent has been brought. Defendant No. 4 is the real contesting defendant. The position which defendant No. 4, Musammat Raufan, occupies is that she was in possession of the pro forma defendants'' undivided 4-annas share of this village under a zarpeshgi mortgage or lease. These two maliks mortgaged their interest in the village to Musammat Raufan, under a zarpeshgi lease dated the 12th of September 1911. Subsequently, I believe, further sums were raised from the mortgagee by these mortgagors, which resulted in a second zarpeshgi lease being granted to defendant No. 4 on the 5th of September 1913. Shortly after this second lease to the defendant No. 4 was granted, the plaintiffs and the pro forma defendants Nos. 2 and 3, who formed all the co-sharer maliks of the village, agreed between themselves to partition their respective interests in the property in this village. They did so; and agreed that the partition was to take effect as from the beginning of the year 1321, which would correspond to about the beginning of September 1913 A.D. The partition deed was not actually registered until February 1914 and it bears date the 2nd February 1914. But although it bears this date, there was a collateral agreement at the time the partition was effected between the co-sharer maliks giving effect to the partition from the beginning of 1321 F.S. That aspect of the case has never been questioned in either of the two lower Courts. Therefore one may take it that it was beyond the region of dispute. The plaintiffs in this action sued to recover rent from the first party defendants in respect of the three kists of the year 1321. These are briefly the facts of this case. The tenant defendants in two cases contested their liability to pay rent, namely, in the Original Suits Nos. 186 and 187. In Suit No. 188 the tenant defendant compromised after action brought; and in Suit No. 189 the tenant defendants did not appear to resist the plaintiffs'' claim for rent.

The first point taken by Mr. Fakhruddin, in his long and able argument, is that the suit being merely a rent suit, it was quite unnecessary to add either defendant No. 2 or defendant No 3 or defendant No. 4 as parties. Though strictly speaking perhaps it was unnecessary to have joined these parties as defendants, having regard to the fact that the case was based upon the partition which had taken place between the co-sharers, I think that it was a wise and prudent course for the plaintiff to have adopted; because, if for any reason the partition which had taken place had been impugned, it was then open to the plaintiff in the suit as constituted on the record to obtain a rent-decree which otherwise he could not have got. Therefore, I think no objection at all can be taken on the ground that any of the parties to the suit as joined upon the record were unnecessary or undesirable parties.

The learned Munsif in this case considered the law and facts with the greatest possible care; and his clear and able judgment shows that he had present to his mind every matter material for the proper consideration of this case both in point of law and on the facts; and his judgment stands out in marked contrast to the perfunctory, unsatisfactory and ill-considered judgment of the Additional District Judge who tried the appeal. The main controversy before me has turned upon the question, inasmuch as defendants No. 2 and 3 were co-sharer maliks of this village and the defendants Nos. 2 and 3 being at the same time mortgagors to defendant No. 4, whether the partition effected between the maliks of the village without the assent of the mortgagee is binding upon her; or whether in point of law such a partition so effected can be impugned by the defendant No. 4 as mortgagee? The learned Munsif came to the conclusion, and rightly, that the co-sharers were not bound to recognise the mortgagee of one undivided share in the joint property of a joint Hindu family in effecting a private partition inter partes; and that the mortgagee of the undivided share would be bound by the partition and could only look to the share of the joint property allotted to his mortgagor by such partition by way of substitution as security for his mortgage-debt. That is undoubtedly the law. The Privy Council has laid down the law in the case reported as Byjnath Lall v. Ramoodeen Chowdry 1 I.A. 106 ; 21 W.R. 233, At page 119 their Lordships state in clear terms what the law is. Their Lordships say: ''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." To the like effect is the case reported as Amolak Ram v. Chandan Singh 24 A. 483 ; (1902)A.W.N 137. In the Allahabad case, it is desirable to notice that the partition in that case took place only five days after the mortgage-bond had been created by one of the co-sharers in the undivided property; because much stress has been laid upon the fact in this case that the partition took place shortly after the mortgage of the 5th of September 1913 was created. Their Lordships in the case reported as Amolak Ram v. Chandan Singh 24 A. 483 ; (1902)A.W.N 137 carefully considered all the authorities; and they followed the reasoning and decision of the case reported as Hem Chunder Ghose v. Thako Moni Debi 20 C. 533 ; 10 Ind. Dec. 362 which followed the decisiou of the Privy Council in the case which I have referred to, Byjnath Lall v. Ramoodeen Chowdry 1 I.A. 106 ; 21 W.R. 233. The latter authority is the leading case upon the law; and it has been invariably followed, as I understand, in every Court throughout India, save for a breath of suspicion which might have been east upon it in the case reported as Sadu v. Ram 16 B. 608 ; 8 Ind. Dec. 884. In the case reported as Amolak Ram v. Chandan Singh 24 A. 483 ; (1902) A.W.N137 Chief Justice Stanley says: "The mortgage was subject to the right of those sharers to enforce a partition and, as their Lord ships held in the cases referred to, thereby to convert what was an undivided share of the whole into a defined portion held in severalty. In the absence, therefore, of any fraud in effecting the partition plaintiff has no right to proceed against that portion of the undivided mortgaged property which, on partition, was allotted to the defendants, but he can proceed against that portion of the undivided property which was allotted to the mortgagors-defendants in substitution of their undivided share in the portion mortgaged. Consequently after the partition which took place in 1878, as to which there is no suggestion at all of fraud or collusion, the mortgage of 1878 could not be enforced against the 5-bisuas share in village Muzaffra which passed out of the share of the mortgagor under the partition. The plaintiff, therefore, cannot claim that the said share was still liable to contribute towards the payment of the mortgage-debt." Thus the question in this case is, whether this partition was effected by fraud? If not, then defendant No. 4, the mortgagee, is bound by the partition effected by the co-sharers inter se. The learned Munsif carefully weighed the evidence in this case; and came to the conclusion that there was no fraud between the co-sharers in effecting the partition; and he also found as a fact that the partition itself was fair and equitable. The only justification which a mortgagee has for interfering in such a case is, if there has been fraud between the co-sharers in effecting the partition; or if the share allotted to his mortgagor under the partition is inequitable or unfair so as to diminish his security for his mortgage debt. The element of fraud and unfairness in this case is conspicuous by its absence. It is suggested by Mr. Fakhruddin that the cases reported as Byjnath Lall v. Ramoodeen Chowdry 1 I.A. 106 ; 21 W.R. 233, Hem Chunder Ghose v. Thako Moni Debi 20 C. 533 ; 10 Ind. Dec. 362 and Amolak Ram v. Chandan Singh 24 A. 483 ; (1902) A.W.N137 are cases of simple mortgages; and that some distinction ought to be made between those cases and a case in which the mortgage, as in this case, is a zarpeshgi mortgage. I cannot see any difference in principle at all between the cases cited and the present case. The principle of law is the same whether the mortgage be a simple mortgage or a usufructuary mortgage. In my opinion It would need a very subtle mind indeed to comprehend a difference between the two classes of cases; and I fail to do so. Therefore, I shall apply the law as laid down in the cases referred to by me as applicable to the present case. The learned Munsif having come to the conclusion that there was no fraud between the co-sharers who effected the partition; and that the partition was fair and equitable; and that the share in the property which fell to the pro forma defendants Nos. 2 and 3, who were the mortgagors of defendant No. 4, was ample security by way of substitution for the mortgage-debt; in my opinion there was an end of the case; and the learned Munsif rightly passed a decree for rent against the respective first party defendants. The learned Judge on appeal came to the conclusion that there was fraud in this case which vitiated the partition; and that consequently it was inoperative as against the rights of the mortgagee; and that thus the mortgages was entitled to enforce his security against the undivided four-annas share of his mortgagor as the same existed prior to the partition. I assume--and I think it is fair to assume--tha the learned Judge on appeal considered that the partition that was made of the lands was not unfair or inequitable. He does not quarrel with the finding of the learned Munsif that the partition was as a matter of fact fair and equitable; and it would be only fair to the learned Judge to assume that he did not ignore that portion of the judgment of the Munsif.

Let us examine the grounds which the learned Judge gives in support of his judgment reversing the findings of the Munsif. The first ground is that the ijara money that was raised and secured by the mortgage went to pay off dues owing by the pro forma defendants to the plaintiffs as co-sharers. The second ground is that the incumbrance of defendant No. 4 existed prior to the date of the partition. Thirdly, that clearly the interests of defendant No. 4 were jeopardized by the partition because instead of having the whole undivided malik interest available for realizing her security, she only had the 4-annas separate share allocated to her mortgagor. Fourthly, that no reason was assigned for the partition, and that it was a suspicious fact that the partition took place within so short a time after the zarpeshgi lease of 1913 was granted. Fifthly, that another suspicious circumstance is that the action is for arrears of rent due for such a short period as two-thirds of a year. Sixthly, that any opposition that there might have been on the part of the tenants has been clearly bought off. There is not a shred of evidence to justify this last suggestion put forward by the learned Judge. All that I need say is that these grounds neither individually nor collectively, in my opinion, warrant the conclusion that there was any fraud which vitiated the partition. Not a single one of the six grounds set forth lends any possible support to the finding of fraud in point of law. Fraud is a mixed question of law and fact; namely, whether on the facts proved legal fraud can be inferred. In my opinion, there is no ground whatever for holding that defendant No. 4 has established facts from which legal fraud can be inferred. If this is so, there is an end of the case so far as the judgment of the lower Appellate Court is concerned. The learned Judge on appeal when considering bona fides of the parties might well have paid some attention to the course of the proceeding before the Munsif. In the Munsif''s Court the plaintiff offered at the request of the mortgagor defendant No. 4 to pay up every penny of the money secured by the mortgage lease; but defendant No. 4 declined to accept the offer or take the money. Was that not a proof of bona fides on the part of the plaintiffs and of mala fides on the part of the defendant No. 4? The offer that the plaintiff made in the Munsif''s Court has been repeated in this Court but has been declined in the same way.

I am asked by Mr. Fakhruddin to send the case back for further consideration by the learned Judge, on the ground that it is obvious from his judgment that he has not considered the question whether the partition that was effected between the co-sharers was a fair and equitable partition as security for the money which was advanced by the mortgagee. I decline to remand the case on this ground. As I have said, the learned Munsif has distinctly found that the partition was fair and equitable; and the learned Judge on appeal has not quarrelled with that finding; and I must assume in fairness to the learned Judge that he did not ignore that portion of the learned Munsif''s judgment. It seems to me that it would be most undesirable that this trifling litigation should be further protracted. The appeal is valued at Rs. 7-9-9. The litigation was instituted on the 13th July 1914 and has been pending ever since. There is a special reason for declining to remand the case, and that is that the learned Munsif says that it was never in dispute between the parties that the partition that was effected was either inequitable or unfair so far as the mortgagee''s security was concerned. Accordingly I refuse to remand the case. And for the reasons which I have set out at some length, I set aside the order of the learned lower Appellate Court and restore the decree pronounced by the Munsif; and I further order that defendant No. 4 do pay to the plaintiffs their costs in this Court, in the lower Appellate Court and in the Munsif''s Court.