1. This appeal arises out of the following facts: Bhagirath and Baldeo, two brothers, formed a joint Hindu family, and owned, amongst other zamindari property, a ten biswa share in mauza Chauwar. They jointly executed a mortgage in favour of the plaintiff's father, on the 8th of November, 1879, of this ten biswa share in Chauwar.
2. On the 16th of November, 1881, the two brothers executed two separate mortgages, in favour of the same mortgagee, in each of which each brother hypothecated a five biswa share in Chauwar for half the amount then due under the original mortgage deed of 1879. These two mortgage bonds were signed by both brothers.
3. On the 16th of October, 1888, the joint family property was partitioned privately and the whole ten biwsa share in Chauwar was allotted to Baldeo's share and it became his separate property. Baldeo's mortgage was subsequently discharged, under circumstances related later on.
4. The plaintiff, who is the son of the original mortgagee, has now sued to recover Rs. 4,326-4-0 on foot of the mortgage executed by Bhagirath on the 16th of November, 1881, and prayed that, in default of payment, the mortgaged property, namely, a five biswa share of Chauwar be put for sale, or if the court considered that on account of the partition of the 16th of October, 1888, the plaintiff was not entitled to have the mortgaged property in Chauwar sold, then the other property allotted to Bhagirath in lieu of his share in Chauwar might be sold by auction. The representatives of the original mortgagors, who, however, have no longer any interest in the property, and their various transferees were made defendants.
5. Both the lower courts decreed the suit, and directed that in default of payment of the mortgage money, a five biswa share in Chauwar be sold. The present appellants are in possession of this property. They acquired their title under the following circumstances:
6. On the 11th of November, 1892, they took a possessory mortgage from Baldeo of his ten biswa share in Chauwar of which he was then the sole owner. I may observe that the mortgage deed, which is on the record, shows that although Baldeo's own mortgage was mentioned, and a sum of money with which it was discharged, was loft in the hands of the mortgagee, it was not stated in the deed that there were no other incumbrances on the property. On the contrary there was a covenant in the deed, that if any other incumbrances should be found to exist, then Baldeo would be responsible for their discharge.
7. Later on a four biswa share of this property was put up for sale in execution of a decree held by one Lalta Prasad, and was purchased by Dhanpat Rai and another person, who in turn, on the 6th of September, 1893, sold it to the present appellants.
8. The appellants' main contention throughout has been that, the mortgaged property having gone on partition to Baldeo's share, the property which had been received by Bhagirath in exchange for his five biswas in Chauwar should be made liable for this mortgage.
9. Great stress has been laid in argument on the case of Byjnath Lall v. Ramoodeen Chowdry (1874) L.R., 1 I.A., 106. It seems to me that the exceptional rule applied in that case is only applicable in similar circumstances.
10. In that case one of several joint owners mortgaged for his own personal benefit, without the knowledge or consent of his co-sharers, his undivided rights in certain properties, alleging that they were his own, when as a matter of fact they were portions of a joint estate. A partition had already been commenced, and on its completion, the estate was split up and the mortgagor received in his separate share some only of the properties mortgaged and other property which had not been included in the deed. The mortgage was by way of conditional sale, and the mortgagee sued to get possession of the property which was allotted to the mortgagor on partition, and it was held that he could do so.
11. Their Lordships say: 'It is clear that the mortgagor had power to pledge his own undivided share in these villages, but it is also clear that he could not, by so doing, affect the interest of the other sharers in them, and that persons who took the security, took it subject to the right of those sharers to enforce a partition and thereby to convert what was an undivided share of the whole into a defined portion held in severalty.'
12. Their Lordships go on to say: 'In the present case there is not a suggestion of fraud, nor is there any ground to suppose that the partition was other than fair and equal. The mortgagee is content to accept what has been allotted in substitution of the undivided interest (of the mortgagor) as the fair equivalent of it. Their Lordships are of opinion, not only that he has a right to do so, but that this, in the circumstances of the case, was his sole right, and that ho could not successfully have sought to charge any other parcel of the estate in the hands of any of the former co-sharers.'
13. That rule is, I think, applicable mainly to protect co-sharers from being saddled with the liability of a mortgage created by another co-sharer, without their knowledge and for which they have received no benefit, on an undivided portion of the joint estate which on partition falls to their separate possession. And in such a case the mortgagee 'who has no privity with the other co-sharers would have no recourse against the lands allotted to such co-sharers; but must pursue his remedy against the lands allotted to the mortgagor.... He would take the subject of the pledge in the new form which it had assumed.'
14. Now what are the facts in this case?
15. The mortgagee was dealing with all the co-sharers. The two mortgages of 1881, one of which is now in suit, were made with the knowledge and consent of both co-sharers, and were in substitution of the prior joint mortgage of 1879.
16. Could Baldeo himself, after partition, have claimed the benefit of the rule in Byjnath's case? I think not. He knew that his brother was mortgaging his undivided five biswa share in Chauwar, and when, at the time of the partition, he accepted ten biswas in Chauwar in exchange for something else, he knew perfectly well how it was incumbered.
17. If he could not, I do not think his representatives in interest can. In paragraph 7 of their written statement, the appellants do not state that when they took the ten biswas in Chauwar in mortgage from Baldeo, they believed there were no other mortgages on it other than Baldeo's, which was discharged. Similarly, when they bought the four biswa share in 1893, they do not even allege that they believed it was unencumbered. If they had taken the trouble to examine the registration records, which, as prudent men they should have done, they would have discovered that the mortgage of Bhagirath executed in 1881 was still outstanding. I would dismiss the appeal with costs.
18. I concur generally. The rule laid down in Byjnath's case obviously can have no application to transactions entered into with the general body of co-parceners. In the present case I look on the transaction of the 16th of November, 1881, as little more than a novation of the older contract of 1879, and seeing that each of the brothers signed the other's mortgage deed as a witness; it is obvious that the mortgagee was dealing with the two of them and had the consent of both to the transaction then entered into. Under the circumstances, the rights of the mortgagee and the liability of the mortgaged property could not, in my opinion, be affected by the subsequent partition.
19. The appeal is dismissed with costs.