Muthia Raja vs Appala Raja and Another

There is no ground for Second Appeal No. 411 It relates to the two-thirds share belonging to the plaintiff and his father. It must be dismissed

with costs.

Second Appeal No. 412 relates to the one-third share in the suit properties which was originally the share of the first defendant. The mortgage

by the first defendant was before the partition. At the partition the whole of the suit properties fell to the plaintiff''s share. It is not alleged that the

partition was otherwise than fair and equal. It was not in fraud of the mortgagee. The authorities are clear that a mortgagee of an undivided share in

common property, or of one of the joint properties before partition from one of the sharers, is only entitled to proceed against the substituted

property which falls to the share of the mortgagor at the partition, unless the partition has been unfair or is in fraud of the mortgagee. The principle

is well explained in Domat''s Civil Law, Section 671. In Byjnath Lall v. Ramoodeen Chowdry (1873) 1 I.A. 106 the Privy Council has adopted

the same principle, though the partition in that case was made by the ''Revenue authorities under a Regulation, and the partition, or Butwara

proceedings, had been started at the date of the mortgage, and the mortgage could not; be a party to the proceedings under the Regulation. But the

broad principle above referred to has been applied in numerous cases. See Hem Chunder Ghose v. Thako Moni Debt ILR (1893) Cal. 533

Amolak Ram v. Chandan Singh ILR (1902) All. 483. Shahebzada Mahomed Kazim Shah v. Hills ILR (1908) Cal. 388 and Hakim Lal v. Ram Lal

(1907) Cri.L.J. 46.

In the last case Mr. Justice Mookerjee has discussed and explained the rule at some length. We do not think that the decision in Lakshman v.

Gopal ILR (1899) Bom. 385 is opposed to it. In that case the partition was found to be in fraud of the mortgagee. It is pointed out by Mr. Justice

Ranade that the mortgagee should have been made a party to the partition suit according to the practice in Bombay. The partition was, therefore,

ordered to be reopened so as to assign to the mortgagor-co-sharer the properties which had come to the plaintiffs at the partition. That decision

fully recognizes the authority of the Calcutta cases. We must therefore hold that the Subordinate Judge was right in decreeing possession to the

plaintiff of the entire property.

We must dismiss the second appeal with costs.