1. Although the facts of this appeal are rather complicated, as is usual in cases coming from Ratnagiri, the point for decision lies within a narrow compass, and is also covered by authority. The plaintiff sued to recover possession of the property which had fallen to him on partition. Prior to the partition his co-sharers had mortgaged the property at different times to two persons Ghate and Shejwalkar, whose interests are represented by the defendants. It has been found by both the Courts that the fact of these mortgages was concealed by the mortgagors co-sharers from the plaintiff, who was no party to the mortgages, and that the defendant is not aware of the partition. In this state of affairs the plaintiff sued to recover possession of the land in dispute, which is Survey No. 23, pot No. 1. The defendants, who were in possession, opposed this claim.
2. The first Court, the Subordinate Judge of Rajapur, dismissed the suit, but on appeal by the plaintiff the District Judge awarded the plaintiff possession without calling on him to redeem the defendants. The defendants appeal.
3. I have stated the facts very briefly inasmuch as the question for decision is a pure point of law, and is also covered by authority. Here we have a case where at the time of partition part of the land partitioned is already subject to mortgage to which the person to whom the land is assigned on partition was not a party, and where he has no knowledge of the mortgages executed by his co-sharers. There is a distinct finding that there has been no fraud on the part of the plaintiff. The leading case of Byjnath Lall v. Ramoodeen Chowdry 1873 74 L.R. IndAp 106 and the numerous other cases which follow that, e.g., Hem Chunder Ghose v. Thako Moni Debi I.L.R. (1893) Cal. 533 and Lakshman v. Gopal I.L.R. (1898) Bom. 385 show that in such cases the co-sharer to whom the land is allotted on partition without knowledge of the previous mortgage and in the absence of fraud on his part takes his share free of the mortgage, and the mortgagee's remedy is against the land which falls to the share of his mortgagor on partition. If the subject of the mortgagee is an undivided share, and the joint sharers effect a partition, the mortgagee must pursue his remedy against the share allotted in severalty to his mortgagor, and in the absence of fraud or collusion co-sharers of the mortgagor would hold their shares free of the mortgage. It appears, therefore, that the plaintiff is entitled to possession of the land which fell to his share at partition free of the mortgage, and the mortgagee's rights would be against the land which has fallen to the share of the original mortgagors Bhimrao and Ramkrishna. The case of Doddappa v. Somappa : (1906)8BOMLR550 is one in which the co-sharer had knowledge of the mortgage, and in any case we are bound to follow the authority of the Privy Council, which has been followed by all the High Courts, The cases are collected in Mulla's Transfer of Property Act, p. 424, under Section 73.
4. A second point has been raised that the suit is barred by limitation by reason of the adverse possession of the defendant. But, as has been pointed out by the learned District Judge, partition took place on June 7, 1915, and the suit is brought on June 7, 1927. The plaintiff's cause of action to recover possession of this particular land would only arise on the date of partition, when it was allotted to his share, and in any case the suit is within twelve years of that. The possession of the defendants originally arises from the mortgages. They cannot be regarded as strangers, and their possession will not be adverse. Moreover, they appear to have been out of possession for some years. However, in any case, the suit is within twelve years of the partition.
5. For these reasons I think the decree of the lower appellate Court should be confirmed, and the appeal dismissed with costs.
6. I agree. The finding of the lower Court is that the present plaintiff was not only not a party to the mortgage created in favour of the predecessor-in-title of the present appellant, but that he did not know of that mortgage, because of the fraud played on him by his co-sharers, who are the mortgagors of the property. That being so, the property which has been assigned to the present plaintiff's share in the partition of 1910 would not be liable for this mortgage, for the principal reason that the present appellants who stand in the shoes of the mortgagee can work out their rights as such against their mortgagors under the principle of substituted security. It is not found that they cannot proceed against their mortgagors or that the property that has fallen to the share of their mortgagors is insufficient to cover the amount of the mortgage. As long as there is no fraud proved between the present plaintiff and the appellants, the latter will not be entitled to insist to proceed first as against the plaintiff before exhausting the remedies against their mortgagors. Their right to proceed against their mortgagors is not taken away by this decision. The learned counsel for the appellants has relied on the case of Bhavrao v. Rakhmin I.L.R. (1898) Bom. 137 That case is an authority for the proposition that the mortgagee or the alienee can acquire rights by adverse possession not only as against the co-sharer of joint property from whom he derives title, but against the other co-sharers as well under certain circumstances. Here, however, the remedy of the present appellants under their mortgage is not lost. Their mortgage is still there. The only difference would be that instead of getting their money enforced against the particular property that has fallen to the share of the present plaintiff, they have got the right now to proceed against their mortgagors and get the other property sold which, has fallen to the share of the mortgagors. Next, reliance has been placed on the case of Doddappa v. Somappa : (1906)8BOMLR550 . There is this difference between that case and the present case that here the present plaintiff was not only not a party to the mortgage, but he was not even aware of that transaction, and there is a finding in this case that the co-sharers have played a fraud on the present plaintiff, which was not the case there. I think, therefore, that this case falls within the principle laid down in the Privy Council case of Byjnath Lall v. Ramoodeen Chowdry 1873 74 L.R. 1 IndAp 106 which has been followed by all the High Courts, including our High Court in Lakshman v. Gopal I.L.R. (1898) Bom. 385 That being so, I agree that the plaintiff is entitled to get possession of the suit property from the defendants, and that the decision of the lower Court is correct, and the appeal should be dismissed with costs.