Raji Ram Tewari vs Suraj Tewari

The plaintiffs and defendants Nos. 2 and 3 were at one time owners of a certain property. The plaintiffs say that they formed with defendants Nos. 2 and 3 members of a joint family governed by the Mitakshara, but for our present purpose we may assume that they have not been able to establish this and that all that is shown is that they and defendants Nos. 2 and 3 were co-sharers in an undivided property. Defendants Nos. 2 and 3 brought a suit for partition and while that suit was pending, they mortgaged part of the undivided property to defendant No. 1. No partition was effected in that suit. Another suit was brought subsequently in which a partition was effected and the property mortgaged to defendant No. 1 was allotted to the plaintiffs. Defendant No. 1 sued on his mortgage and obtained a decree in 1910, in execution of which he proceeded to bring to sale the property which had been mortgaged to him. The present suit was brought for a declaration that the mortgage made by defendants Nos. 2 and 3 in favour of defendant No, 1 was not binding on the property in the hands of the plaintiffs and that the decree and sale thereunder were invalid as against the plaintiffs. The Munsif decreed the claim. On appeal the Subordinate Judge held that the mortgage was binding on the property and he reversed the Munsif''s decree and dismissed the suit with costs. The Subordinate Judge seems to hold that as it is not proved that the plaintiffs and defendants Nos. 2 and 3 were members of a joint family, defendants Nos. 2 and 3 were at liberty to mortgage a portion of the undivided property in such a way that the mortgage would bold good against a subsequent partition at which the property mortgaged was allotted to a co-sharer other than the mortgagors. This view is contrary to a long line of decisions which are well known. Prima facie the mortgage must give way to the partition and the mortgage attached after the partition to the share which was allotted at the partition to the mortgagors, so that the plaintiffs to whom the mortgaged property was allotted at the partition took it free of the mortgage. But it is said that when the second suit for partition was brought, the plaintiffs were aware of the mortgage made by defendants Nos. 2 and 3 in favour of defendant No. 1. I am prepared to assume that they were aware of the mortgage, but, so far as I know, they owed no duty to the mortgagee of their co-sharers and they were at liberty to take the property allotted to them at the partition on account of their share, whether that property had been mortgaged by their former co-sharers or not. The Subordinate Judge suggests that in the present suit the plaintiffs and defendants Nos. 2 and 3 are acting in collusion. What this means I do not know. Nothing that they can do in the present suit can affect the rights of the parties as they existed before the present suit was brought. The decision of the Subordinate Judge in this case appears to me to be contrary to all precedent. I allow this appeal, set aside the decree of the lower Appellate Court and restore the decree of the first Court with costs here and in the lower Appellate Court.