Basil Scott, Kt., C.J.
1. This is a suit upon a mortgage executed on the the of April 1899 purporting to be between Ardeshir Kavasji, Manager of the firm Kavasji Mancherji and Sons, at Ahmedabad, and Ranchodlal Gangaram, Manager of the United Printing and General Agency Co. Ltd., who are the plaintiffs in this case.
2. The document is attested amongst other attesting witnesses by Eruchsha Kavasji, brother of Ardeshir, the executing party. Kavasji Mancherji, whose name is mentioned as that of the family firm, had three sons, Ardeshir, Phirozsha, and Eruchsha; and it is not disputed that the money was raised from the mortgagee for the purpose of paying off a judgment-creditor who had attached one of the family properties.
3. The learned Subordinate Judge holds that at the time of the mortgage it is satisfactorily proved, upon the admissions of Eruchsha, that Ardeshir was in the vahivat of the estate of Kavasji Muncherji on behalf of Eruchsha and Phirozsha and with, their consent, and that the deed is of such a character as to bind part if not the whole of the estate of Kavasji, but he thinks that the plair tiff's suit must fail because the estate of Kavasji was not legally represented by Ardeshir at the time when he passed the san bond in 1899.
4. Now the mortgage-debt could not be a debt of Kavasji because it was incurred after Kavasji's death. And according to the rule enunciated in Farhall v. Farhall (1871) L.R. 7 Ch. 123 it would not give rise to any claim against the estate of Kavasji. Therefore Section 190 of the Indian Succession Act to which reference is made by the Subordinate Judge has no application.
5. We are not concerned with a claim enforcible against the estate of Kavasji whether it be represented or unrepresented. We are concerned with the claim which is made upon a mortgage which purports to bind the partners in the firm of Kavasji Muncherji and Sons, and a certain property which is specified in the mortgage. The partners in Kavasji Muncherji and Sons so long as that firm continued were Ardeshir, Phirozsha and Eruchsha, and from the point of view of the mortgagees it is absolutely immaterial whether the firm was a going concern or whether it was not, because, it is quite clear that the interest ^ which was intended to be conveyed in the mortgaged property was the interest of Ardeshir, Phirozsha and Eruchsha.
6. It is not disputed that the beneficial interest in the, property which is the subject-of the mortgage and the beneficial interest in the other immoveable property of Kavasji is in the mortgagors subject to the satisfaction of the claims of their sister under a consent-decree which has recently been passed in this Court, and it is clear that under the provisions of Section 43 of the Transfer of Property Act the mortgagors upon getting the beneficial interest in this property are bound to satisfy the mortgagee's claim out of that interest. Even if the administration suit had proceeded and had not been closed by the final consent-decree, we think that the mortgagee would have been entitled to come in in the suit and ask that the properties should be marshalled in order that his mortgage should be given effect to and that the other properties should be applied to satisfy the claims on Kavasji's estate. But under the present circumstances there is no difficulty in satisfying the claim of the mortgagee out of the property mortgaged.
7. The only other objection which was raised was that it was not satisfactorily proved that Eruchsha was bound by the mortgage.
8. We have, however, the fact that he was an attesting witness. He was a Government servant who must have understood the effect of the deed which he was attesting and which was executed by his brother who was in vahivat of all the family properties. The occasion of the mortgage- was the necessity of raising the attachment on the family property before the marriage ceremony of one of Eruchsha's own daughters took place, and we have the uncontradicted statement of Ardeshir upon oath that Eruchsha consented to this mortgage.
9. For these reasons we reverse the decree of the Subordinate Judge and decree that the plaintiff:' will be entitled to an order that if the money due under the mortgage is not paid within six months from this date with costs and interest at the mortgage rate, the interests of Ardeshir, Phirozsha and Eruchsha's heirs in the mortgaged property be sold and that the proceeds applied in satisfaction of the decretal debt.
10. Costs of this suit and appeal must be added to the mortgage debt.
11. Interest will run at mortgage rate upto the date of payment. The pleaders to settle the amount of the mortgage claim.