1. In this appeal a preliminary point has been raised on behalf of the respondent and the facts necessary to understand the point are these.
2. The respondent filed against the mother of the present appellant the suit giving rise to this appeal in order to enforce a mortgage dated March 28, 1926, In that suit the principal contention of the defendant was that the mortgage was not supported by consideration. The other defiance was that the defendant was an agriculturist. The learned trial Judge negative both these contentions and he proceeded to pass a decree in favor of the plaintiff for the sum of Rs. 10,000 with costs and future interest at 6 per cent. on the principal sum of Rs. 5,000. From that decree the mother of the present appellant preferred an application in this Court for leave to appeal in forma pauperis. Along with the application she also presented a memorandum of appeal. That was by civil application No. 337 of 1942. On April 10, 1942, this Court made an order referring the question of the pauperism of the original appellant to the lower Court in order to find whether the applicant was a pauper. It seems that the original defendant died sometime after the papers were received in the lower Court and the lower Court reported the fact of the death of the original appellant to this Court. Subsequently an application was made by the present appellant, who is the daughter of the original defendant, being civil application No. 906 of 1942, and by the application she prayed that she be substituted as the legal representative of the original appellant and that she might be allowed to appeal in forma pauperis. On November 18, 1942, Mr. Justice Wassoodew made an order upon the application in the word 'Granted'. The matter was referred back and the lower Court reported that the legal representative was not a pauper. When the matter came before Mr. Justice Lokur on April 5, 1943, for final disposal, he, however, held that the applicant was a pauper and accordingly he granted her leave to file the appeal in forma pauperis. Upon the memorandum of appeal which had been already presented he made an order: 'Admitted: Notice'. It is under those circumstances that the appeal comes up before us for final disposal, and the preliminary point taken is that the order of Mr. Justice Lokur granting leave to file the appeal in forma pauperis is bad since it does not comply with the terms of the proviso to Rule 1 of Order XLIV of the Code of Civil Procedure. The proviso to Rule 1 is in these terms:
Provided that the Court shall reject the application unless, upon a perusal thereof and of the judgment and decree appealed from, it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust.
3. The proviso in terms does not say that reasons should be given while granting the application. It has, however, been ruled in a decision of this Court reported in Sakubai v. Ganpat, 6 Bom. L.R. 442 that in granting leave to appeal as a pauper the Court should be careful to sec that the proviso to Section 592 of the Civil Procedure Code (Act XIV of 1882) is satisfied and that the Judge or bench admitting a pauper appeal should express and record very briefly the reasons for granting leave so that the bench before whom the appeal ultimately comes may have an assurance that the leave was properly given. With respect, we are in entire agreement with this view.
4. When an application is made for leave to appeal in forma pauperis, the applicant is also required to present a memorandum of appeal, and to enable a person to be allowed to appeal as a pauper, the person must be a pauper. In order to ascertain whether the applicant is or is not a patiper, an inquiry into the applicant's pauperism is essential. If the finding is that the applicant is a pauper, the next step is to sec whether the requirements of the proviso to Rule 1 of Order XLIV are fulfilled.
5. It is contended on behalf of the respondent that the Court should first sec if the requirements of the proviso to Rule 1 are satisfied. This involves the assumption that the applicant is a pauper. It secms to us that the first thing to do is to sec if the applicant is a pauper. If he is, the next thing to do is to sec if the conditions in the proviso to Rule 1 of Order XLIV are satisfied. If the applicant is not a pauper, there is no question of compliance with the terms of the proviso. In this case the finding of Mr. Justice Lokur is that the applicant is a pauper and upon that footing leave was granted to the appellant to appeal in forma pauperis and the appeal was also admitted. The only infirmity in the order is that no reasons were given while granting the application and admitting the appeal. This does not, however, mean that the order is bad. We think it is extremely unlikely that the provisions of Order XLIV. Rule 1, were not present to the mind of a Judge of the experience of Mr. Justice Lokur. At the same time, it is, in our opinion desirable, as was pointed out by Sir Lawrence Jenkins in Sakubai's case, that the Judge while admitting a pauper appeal should express and record briefly the reasons on which leave proceeded. In this view of the matter we now proceed to dispose of the appeal upon the merits.
6. On behalf of the appellant three points have been taken, two of which have been faintly argued. The principal point which has been argued on behalf of the appellant is that the respondent is not entitled to proceed against the property mentioned in Schedule B to the plaint because the property in question is different from the property which was the subject matter of the mortgage, and to understand the contention it is necessary to mention some facts. The deed of mortgage giving rise to the suit was executed on March 28, 1926. It was a simple mortgage and by the document the defendant mortgaged a house and certain lands situate at four different places for the consideration of Rs. 5,000. The mortgagor happened to be a Mahomedan lady and it appears that she was not the absolute owner of the properties which she had mortgaged. In 1983 there was a litigation between the defendant and other cosharers with respect to their property including this property. In the compromise decree which was made in that suit the property mentioned in Schedule B was allotted to the defendant's share. The decree was passed on February 17, 1938. The plaintiff commenced his1 suit on March 29, 1941, and to the suit the defendant raised two objections which I have mentioned above. In the plaint the plaintiff alleged as follows:-
The property included in the mortgage deed and the changes made in the numbers in the Government records from time to time are shown in Schedule A to the plaint. The particulars of the said properties and the properties which the defendant-Ashabibai-got for her share under the decree in Regular Civil Suit No. 60 of 1983 in the said properties, by right of ownership and which she took in her possession are given in Schedule B: to the plaint. The said properties in Schedule B are liable according to law for the payment of the mortgagedebt in suit.
7. The written statement which the defendant filed and which is exhibit 12 in the suit, contains no fewer than 11 paragraphs, but in none of these is reference made to the contention which is now taken that the plaintiff's claim cannot be met from the properties mentioned in Schedule B. This point not being taken in the written statement was not made the subject matter of an issue in the trial Court. It is only upon the hearing of this appeal that this point has been taken and reliance has been placed upon the decision of their Lordships of the Privy Council reported in Mohammad Afzal Khan v. Abdul Rahman 35 Bom. L.R. 1. The suit giving rise to the appeal was to enforce a mortgage of April 26, 1928, which the third respondent and his son Sardar Ali had executed in respect of some of the properties in favour of the appellant to secure payment of one lakh of rupees lent and advanced by the appellant, and their Lordships of the Privy Council proceeded to lay down the principle as follows (p. 411):
Where one of two or more co-sharers mortgages his undivided share in some of the properties held jointly by them, the mortgagee takes the security subject to the right of the other co-sharers to enforce a partition and thereby to convert what was an undivided share of the whole into a defined portion held in severalty. If the mortgage, therefore, is followed by a partition, and the mortgage 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 for his undivided share.
8. In the face of this ruling the appellant has clearly no case. But it is urged that this decision can be distinguished. We are unable to sec how the appellant can with any success do that. The mortgage in that case, as in this case, was executed by the mortgagor and his son conveying some of the properties in favour of the appellant. In the present instance the defendant mortgaged some of the properties belonging to herself and others as if she was a full owner, and with reference to almost identical facts their Lordships of the Privy Council held that in the absence of fraud the mortgagee was entitled to proceed against the properties allotted to the mortgagor in substitution of his undivided share. In our opinion the contention has no substance and we therefore reject it.
9. The two other points argued are one relating to consideration and the other relating to the status of the defendant as an agriculturist. With regard to the question of consideration it is suggested that the mortgage deed was not supported by consideration and what happened was that various items which go to constitute the consideration of the mortgage were supposed to have been advanced on the date of the mortgage and not on the respective dates mentioned in the promissory notes Beyond mentioning the point learned Counsel for the appellant has not made any serious attempt to deal with the point. The learned trial Judge upon the evidence came to a finding that there was consideration for the mortgage and that the same was for a sum of Rs. 5,000. In our opinion this contention must also fail.
10. The next and the last point taken is that the defendant should have been held to be an agriculturist. Upon that point also the learned Judge came to the conclusion that the defendant's nonagricultural income was larger than the agricultural income. Nothing is shown in a contrary sense and we therefore accept the conclusion of the trial Judge and reject the contention urged in support of the appeal.
11. For all these reasons the contentions urged on behalf of the appellant must fail. The result is that the appeal fails and must be dismissed with costs. In Civil Application No. 593 of 1943 the rule is discharged with costs.
The appellant was allowed to prefer the appeal in forma pauperis, and as the appeal fails, the appellant will have to pay to Government the amount of the courtfee upon the claim in appeal, via. Rs. 10,000 as if she had not been allowed to appeal in forma pauperis.