1. In this case we think that the District Court has misconstrued the document No. 101. Properly interpreted that document does not imply that defendant No. 1 was in possession of the property mortgaged by him to the plaintiff, but that he was managing it for the plaintiff, or rather helping the plaintiff to manage it, as he was bound to do by the terms of the mortgage. This implies a possession by the mortgagee. The difference is important in this respect, that a mortgagor left in possession, though he would not as against his mortgagee have any right to deteriorate the property below the value which it had when mortgaged, might dispose of the annual felling or cutting in any way which would be consistent with good management (Fisher on Mortgages, 572). It is not contended in this case that the sale to defendant No. 2 was destructive of the estate so as to impair the security. As, then, the mortgagor in possession might properly sell, so a purchaser might properly buy, and should be protected in his purchase against any claims of the mortgagee upon the mortgagor in virtue of his mortgage.
2. Here, however, the mortgagee had possession,--that is, such possession as the mortgagor had previously held for himself, that of a tenant-in-common with Anapurnabai. She also had, and has, possession as tenant-in-common. Defendant No. 2 bought his license to out wood from both her and the mortgagor; the latter, as mere assistant of the mortgagee in possession, having no right to sell, as he did, on his own account. The mortgage was registered, so the defendant No. 2 had the opportunity of knowing the relations of his licensor, defendant No. 1, to the plaintiff. It is clear, then, that had the license been taken from defendant No. 1 alone, the licensee would have acquired no right, as the pretended licensor was not the mortgagee's agent for this purpose, and did not even profess to act on his behalf, but on his own. But Anapurnabai joined in the license, and it is well established that one of two or more co-tenants may lawfully enjoy the whole in any way not destructive of the substance so as to amount to an ouster of the other co-tenants--Hole v. Thomas 7 Ves. 589; Jacobs v. Seward L.R. 4 C.P. 328. What a co-tenant may do, however, he may license another to do. This, in fact, is in many cases the only feasible mode of enjoyment. Thus Anapurnabai had a right to license a cutting of the wood, not limited to her own share, but extending to the whole forest held in common. So, too, had the mortgagee. The licensee from either would do no wrong to the other in acting on his license. The rights of the co-tenants inter se would be to an account of the profits realized, and a distribution of them according to their proportions of the ownership. This principle has in England been embodied in a Statute, 4 and 5 Anne, cap. 16, Section 27, but it is one enforcible by equity--Denys v. Shuckburgh 4 Y. & C. 42 as resting on natural light, and, therefore, by the Indian Civil Courts.
3. Mr. Telang cited, Wilkinson v. Haygarth 12 Q.B. 837 for a dictum of Lord Denman's--'the plaintiff can recover such damages only as are proportionate to his interest in the property'; but that was in a case of actual ouster, as part of the soil was carried away. This would ground an action against the co-tenant himself, but any user of the common property not excluding the plaintiff would not: Martin v. Knowllys 8 T.R. 145. in the same case, Coleridge, J., says of the removal of the peat: 'It is not the mere vestura, or growth of the land, that is taken,' and, again, 'Now, whatever one tenant-in-common might himself have done, he might license a third party to do, but no more.' This shows that the suit in this case could not be maintained against the second defendant acting on a license from Anapurnabai: the plaintiff's remedy, if any, is against her. From defendant No. 1 the plaintiff sustained in this form no distinct injury, and, therefore, cannot recover damages. Whether he may recover from him in another suit any sum which he has obtained through assuming falsely a position and rights which belonged to the plaintiff, we need not express an opinion:Lindon v. Hooper See per Lord Mansfield 1 Cowp. at p. 419; Bac. Abr. Assumpsit (A) Vol. I p. 256, nor whether he could prudently join him a defendant in a suit for an account.