Batakrishna Prasad Sukul vs Apurbo Krishna Mitra

Won, J.—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.

A corollary of that is found in Mohammad Afzal Khan v. Abdul Rahman AIR 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.

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.

Reference is made to the decision of Mookerjee, J. in Hakim Lal v. Ram Lal (1907) 6 C.L.J. 46 where a number of instances are given, the learned Judge there stating what the solution is. It is suggested that the illustration which the learned Judge gives as most nearly applicable to this case is found at p. 50 of the Report. But the statement which I have made seems to me to be the proper principle to apply in this case but for another contention which has been put forward by Mr. Sushil Madhab Mullick on behalf of the respondent. His contention is that this appeal was really confined to what was known as the Gaya property, with regard to which the learned Judge in the Court below has found in favour of the present appellant-judgment-debtor.

Now, it would appear that during this execution proceeding, the judgment-debtor petitioned the Court for time: the first petition is dated 2nd September 1935 in which amongst other things the petitioner states that the decree holder consented to have the sale adjourned to the 6th of the same month and then states:

That your petitioner will have no right to question the validity of the decree, the due and proper service of all processes in the suit and in the execution proceeding and to raise any objection about any alleged irregularity, illegality relating to the decree or execution proceeding or about any mis-description of the property advertised, and about the prices mentioned in the sale proclamation being adequate and proper.

Then on 6th September 1935, the date upon which the sale was to be held, a fresh petition was filed in which the petitioner judgment-debtors say as follows:

That your petitioners, the judgment-debtors Nos. 1 to 8 will have no right to take any exception to the decree, the execution proceedings in this case and about the right of the decree-holder to sell up properties to be mentioned in the fresh sale proclamations and lo try to get the sale set aside on any grounds mentioned in Order 91, Rule 90, Civil P.C., or on any other ground whatsoever if the judgment-debtors fail to pay in full the decretal dues by 16th November 1933.

The learned Judge has held that this does not amount to waiver of the objection which the judgment debtors took before him, and it is contended by Sir Sultan Ahmed in their behalf that it does not amount to waiver of the objection which has been taken before this Court. It might very well be said that the paragraph in the petition of 2nd September 1935 was not a waiver because what appears to have happened was that the decree-holder in his application for attachment had set out the property which it might be said that the judgment-debtor could not suppose that the decree-holder intended to sell in the manner which I suggested in the first part of my observations. But when the Judge came to the petition of 6th September 1935, the matter was very different. Again it might be argued that, as the judgment-debtors were only waiving what might be put into the sale proclamation, they could not be held to have waived the present objection. But again the Judge had before him the sale proclamation upon which the execution case was proceeding and it could not be assumed that he would imagine that the fresh sale proclamations referred to in the paragraph which I have read would describe the properties in any way other than the way in which the earlier pale proclamation had described them.

In this petition to which I am now referring the judgment-debtors state (to repeat the words) that they would not have any right to object to the

right of the decree-bolder to sell up properties to be mentioned in the fresh sale proclamations and to try to get the sale set aside on any grounds-mentioned in Order 31, Rule 90, Civil P.C., or on any other ground whatsoever.

It seems to me to be impossible to come to any conclusion other than that the judgment-debtors did there waive the present ejection which they are now taking Taking the two petitions together the words used in the petitions cover every possible objection which could be taken, and, more particularly as I have already stated, do the words stated in the petition of 6th September 1935 cover the present objection which has been raised. I have already stated and perhaps it is unnecessary to repeat, that had it been for this Court to express an opinion, I should have been rather inclined to hold that the argument of Sir Sultan Ahmed on this point represents the correct view to be taken on a matter of this kind; but having regard to my decision as regards the waiver, I must hold that the appeal fails.

Another question was argued that it was not competent at this stage to raise this objection. It is unnecessary to Dome to a conclusion with regard to the matter apart of course from the question of waiver which I have already decided. But I think it might be said, if it were necessary to come to a decision on the point, that until the judgment-debtors saw the manner in which the decree-holder bad sold the properties, the objection could not be raised.

The conclusion at which I have arrived with regard to the manner in which the properties were to be sold would necessarily require the Court to come to the conclusion that the decision of the learned Judge in the Court below with regard to the Gaya property was wrong, in that a proportion at least of that property should be sold as representing at least a proportion of the properties possessed by the mortgagor before the partition. But the cross-objection is not pressed.

For these considerations I would dismiss the appeal. There will be no order for costs either in the appeal or in the cross-objection.

Varma, J.

I agree.