1. This is a second appeal from an appellate decree of the District Court of Poona reversing the decree of the Court of the Subordinate Judge at Poona in Civil Suit No. 413 of 1927. The plainttiff in that suit sued for partition of two houses mentioned in the plaint as being the mortgagee from defendant No. 1, who was a member of a joint family consisting of himself and his uncle defendant No. 6. The mortgage is of September 27, 1919, and purports to make over possession to the mortgagee, the mortgagor executing a rent-note in his favour. The appellants are original defendants Nos. 3, 4 and 5, who are in possession of one of the two houses in suit, house No. 45, having purchased the same in 1920 from the uncle of defendant No. 1, who was defendant No. 6. The principal contention on which this appeal turns was raised in issue No. 2 in the original Court, namely, whether the suit for partition was maintainable. It was contended that the plaintiff being the mortgagee from a coparcener in a joint Hindu family who was not in possession of the property at the date of the mortgage, was not entitled to maintain the suit for partition and possession. That issue was decided against the plaintiff by the learned Subordinate Judge, and he accordingly dismissed the suit.
2. On appeal to the lower appellate Court, the learned Assistant Judge held that the suit was maintainable. He pointed out that a purchaser of the rights of a coparcener in a joint Hindu family would have the right to maintain a suit for partition. The principle is stated in the 7th Edition of Mr. Mulla's Hindu Law, p. 301, Section 261 (2), as follows : In Bombay and Madras the purchaser of the undivided interest of a coparcener in a specific property belonging to a joint family is not entitled to a partition of that property alone, for his vendor himself could not have claimed it, unless the other coparceners consent to it, and he can only enforce his rights by a suit for a general partition. And as regards a mortgagee it is stated at p. 306, Section 263(1), that the principles 'laid down in Section 261 above' apply mutatis mutandis to a mortgagee of joint family property from a coparcener. The learned Assistant Judge also pointed out that the mortgage deed in a suit was a combination of a simple and a usufructuary mortgage, and entitled the mortgagee to ask for possession. He considered that the fact that defendant No. 1 was not actually in possession of the property at the time of the execution of the deed, Exhibit 35, did not mean that the plaintiff was not entitled to possession. He accordingly held that the plaintiff was entitled to maintain the suit, and he reversed the decree of the trial Court. The defendants have, therefore, come up here in second appeal.
3. This decree has been attacked, firstly, on the ground that the plaintiff has asked for partition of specific property and not for a general partition. That contention, however, does not seem to be well-founded, because in answer to the written statement the plaintiff has filed a reply in which he has stated that there is no other property belonging to the joint family and that if there is any he is willing to have it-included in the suit. It has not been pointed out that any such property was shown to exist, and therefore the contention that the suit is not for a general partition cannot be successful.
4. Then the second point taken up is that as mortgagee from a coparcener who was not himself in possession, the remedy of the plaintiff is not to ask for partition and possession, but merely to bring the right, title and interest of his mortgagor to sale in enforcement of the mortgage. Now it may be a difficult question on which there appears to be no clear authority whether a mortgagee who is not entitled to possession can ask for partition of the joint family property, Our attention has been drawn to certain dicta in Pandurang Anaiidrav v. Bhaskar Shadashiv (1874) 11 B.H.C. 72 which might suggest that he has such a right. But that question really does not arise in the present appeal, because Exhibit 35, the mortgage deed, clearly entitles the mortgagee to ask for possession. It may be that the rent-note executed at the time did not effectively put him in possession, but there can be no doubt that under the mort gage deed he was entitled to ask for possession by taking suitable steps. The only steps he could take to enforce this right would be to get the share of his mortgagor in the family property ascertained by partition and then claim his right of possession. That is what he has sought to do in the present suit, and I therefore cannot agree with the contention that his suit was not maintainable. Our attention has been drawn to two rulings in which lessees from coparceners were held competent to maintain suits for partition and possession and this supports the view that a mortgagee who is entitled to possession must be held to be competent to maintain such a suit: Ramasami Chetti v. Algirisami Chetti I.L.R. (1903) Mad. 361 and Muhammad Jafar Khan v. Mazhar-Ul-Hasan (1906) 3 A.L.J. 474
5. It was further contended that the learned Assistant Judge should have ordered partition to be by equitable division so that the appellants who are in possession of a part of the family property by sale from defendant No. 6, the other coparcener, should as far as possible be able to retain the benefit of their purchase and of any improvements that they may have made after purchase. It is to be remembered that the equities of other alienees may also have to be considered, but as I read the order of the learned Assistant Judge, it appears to be intended to mean that the partition should be equitable as far as is possible in the circumstances of the case, and no change is required to be made in the terms of his order. That being so, the appeal must be dismissed with costs.
6. I agree.