1. This is an appeal by the plaintiff. He brought a suit for possession of certain properties entered at the foot of the plaint and for damages. He impleaded as defendants to the suit defendants first party who it was alleged were in possession of the property in dispute, and defendants' second party who it was alleged had made a mortgage of the property in dispute which mortgage had been sued upon, and in execution of a decree for sale passed on the basis of the said mortgage against the said defendants' second party, the defendants' first party had obtained possession of the property in suit. He also impleaded as defendants, defendants' third party who, it was said, were jointly interested with the plaintiff in the property in dispute, but as they were absent they could not be joined as plaintiffs but were made pro forma defendants. The plaintiff's suit has been decreed by the Courts below with respect to certain portion of the plaint property but was dismissed in respect of two plots Nos. 1326 and 983, and the appeal before me is with respect to these two plots alone.
2. The allegations on the basis of which the claim in respect of these plots was made were that the plaintiff, the defendants' second party and the defendants' third party were owners of an undivided mahal in which these two plots were situate. I shall now refrain from making any mention of defendants' third party and content myself with mentioning the plaintiff alone, the rights of defendants' third party being safeguarded by the plaintiff. It is said that in the year 1897 the defendants' second party executed a simple mortgage in respect of the two plots mentioned above along with certain other plots in favour of defendants' first party. A preliminary, decree for sale on the basis of this mortgage was obtained by defendants' first party against defendants second party on 7th April 1913 and the final decree for sale was passed on 26th February 1916. Subsequent to the passing of this final decree there was a perfect partition as amongst two cosharers and these two plots were allotted to the plaintiff. It might be mentioned that these two plots were before the partition in the exclusive possession of defendants' second party as their sir: this has been found by the Courts below and the finding has not been challenged by learned Counsel for the appellant. In pursuance of the decree obtained by the defendants' first party they put the mortgaged property to sale and purchased the two plots on 24th July 1919. Formal possession was obtained by the defendants' first party on 22nd December 1919, and on 18th September 1920 in spite of the objections of the plaintiff the revenue Court ordered mutation in favour of the defendants' first party. The case for the plaintiff is that the defendants' second party were not entitled to execute a mortgage in respect of specific plots of sir even though they might have been in the exclusive possession of the same by virtue of an arrangement amongst the cosharers when prior to the partition all the coparceners had only an undefined right proportionate to their share in the entire village. This aspect of the case has not been clearly appreciated by the Courts below. There is abundant authority for the proposition for which learned Counsel for the appellant contends. As early as the year 1885 the majority of the Judges in the Full Bench case in Sital Prasad v. Amtul Bibi (1885) 7 All 633, held that in zamindari tenures in which the whole land is held and managed in common, a cosharer cannot convey his right of occupancy in the sir as something distinct from his proprietary rights in the mahal. In Jamna v. Jhalli 1920 18 ALJ 129, Lindsay, J. held:
The co-sharers in an undivided property may, by arrangement among themselves, take possession of definite portions of that property and hold them so as to enjoy their proper quota of the profits, but it is not permissible for any one of such co-sharers to alienate to a third person as his exclusive property the portion which he has been occupying by agreement with his co-sharers.
3. In Ram Khelawan Koeri v. Bishwanath Prasad 1932 All 81, Pullan, J., held:
Although a co-sharer brings under cultivation certain waste land and occupies it as his exclusive property with the permission of his co-sharers it is still not permissible for him to alienate that land by means of a perpetual lease.
4. In Qutubuddin v. Mangla Dubey 1935 AWR 717, it was held by Niamatullah, J., that one of several cosharers in an undivided mahal cannot transfer to a stranger lands held by him in severalty, and if he does so the other cosharers are entitled to have the alienation set aside, to eject the transferee, and to take joint possession with the transferor. The law therefore seems to be fairly well settled that a co-sharer in an undivided property cannot alienate any defined portion of such property even though he might have been in exclusive possession of the same by an agreement amongst the various cosharers. It is too late in the day for learned Counsel on behalf of the respondents to base his argument on the minority decision of Mahmud, J., in Sital Prasad v. Amtul Bibi (1885) 7 All 633 to which reference has already been made in an, earlier portion of my judgment. As a corollary of the proposition laid down above, it follows that if such a mortgage is made the mortgage is subject to the' right of the other co-sharers to enforce a partition. In Byjnath Lall v. Ramoodeen Chowdry (1874) 1 IA 106 their Lordships of the Privy Council observed as follows at page 119:
Now what was the subject of this mortgage? It was an undivided moiety in two out of three villages forming a joint and undivided estate.
The sharers, however, do not appear to have been members of a joint and undivided Hindu family, but to have enjoyed their respective shares (at all events their shares in Gunniporebeja and Pemburrinda) in severalty. It is therefore, 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 the 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.
5. In this case the question as to whether the mortgagee could proceed against the property actually mortgaged was not pointedly considered because it did not pointedly arise and all that was held was that the mortgagee could proceed against the property which came into the share of the mortgagor after partition, although there is a paragraph at p. 120 beginning with the words 'let it be assumed' from which it might be inferred that the mortgagee cannot proceed against the property originally mortgaged. The matter, however, was considered again by the Privy Council in Mohammad Afzal Khan v. Abdul Rahman 1932 P C 235 and it was held that where one of two or more cosharers 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 cosharers to enforce a partition and thereby to convert what was an undivided share of the whole into a defined Portion in severalty. If the mortgage therefore is followed by a partition and the mortgaged properties are allotted to the other cosharers, 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 of his undivided share. In Hem Chandra Ghose v. Thako Moni Debi 1893) 20 Cal 533 it was held that under similar circumstances the mortgagee could not proceed against the mortgaged property which had been allotted on partition to a sharer other than the mortgagor but should be allowed to proceed against that property alone which had been allotted in substitution to the mortgagor. To the same effect is the case in Amolak Ram v. Chandan Singh (1902) 24 All 483.
6. The mortgage of 1897, therefore, suffered from a certain infirmity, in the sense that its full effect could be defeated at the instance of a cosharer who might on partition be allotted the two plots covered by the mortgage and then the mortgagee could proceed only against the substituted security. In the present case certain difficulties face the mortgagee. The decree for sale was obtained by the mortgagee on 26th February 1916 and the partition took place afterwards; it was perhaps not open to him to proceed against any property in the execution department other than the property mentioned in the decree. The lower appellate Court says that:
The next difficulty is that the defendant second party did not receive any other property in exchange and hence there was no substituted security on which defendant 1 can fall back upon in case of plaintiff's success for the fact was that the mortgagor had more sir and khudkasht land in his exclusive possession than his lawful share had warranted and by the partition some sir plots went out to the plaintiff who had less sir in his possession.
7. I have not been able quite to appreciate this portion of the judgment of the lower appellate Court. It may be that in the partition the mortgagor did not get any specific sir plots in lieu of plots Nos. 1326 and 983, but the mortgagor undoubtedly had got some property under the partition, and if the decree itself had not been passed and if the mortgage were still a subsisting mortgage, it was perhaps open to the mortgagee to proceed against such property as might have fallen in the share of the mortgagor. Be that as it may, the defendant first party has got to thank himself for the position in which he finds himself at the present moment. He entered into possession in the year 1920 and from that time alone his possession became adverse, and it is conceded that he has not perfected his title by adverse possession. The question, however, remains as to whether it was not the duty of the plaintiff cosharer to have seen that at the time of partition unencumbered plots only fell to his share. The lower appellate Court says that the plaintiff has been placed in this position because the plaintiff raised no objection in the partition that he will not take encumbered property and kept silent even at the time of the sale; of the two parties it is the plaintiff who must suffer.
8. First of all it is not clear that the plaintiff knew anything about the mortgage of 1897 which after all was a simple mortgage and the mere fact that it was registered would not go to show either as a matter of fact or as a matter of law that the plaintiff had notice of the mortgage. In the second place I do not think it was the duty of the plaintiff to have apprised himself of the entire circumstances and to have moved the partition officer in the matter. In the case reported in Byjnath Lall v. Ramoodeen Chowdry (1874) 1 IA 106, referred to above, Mr. Doyne on behalf of the respondents argued that cosharers who seek partition ought to acquaint themselves with existing encumbrances, and I think it is permissible to infer from the judgment of their Lordships that this argument did not find favour with them. It may be mentioned at this stage, although perhaps I should have mentioned it before, that it was never specifically pleaded by the defendants' first party that the partition was tainted with fraud or collusion. In a vague manner it was stated in para. 7 of the written statement that the plaintiff and the defendants' second party were residents of one and the same place and were on friendly terms with each other and that these people having colluded with the village patwari had got wrong and fictitious entries made against the property sold by auction as well as other plots of land in order to injure the defendants' first party. I do not take this as a plea to the effect that the partition was fraudulent nor was it so understood by either of the Courts below, there being no specific issue on this point.
9. As stated before, in the present case, there has been a sale on the basis of the mortgage and the name of defendants' first party has been mutated against the two plots 1326 and 983, but this in itself does not in any way injure the plaintiff inasmuch as the title of the defendants first party has not yet matured by reason of adverse possession. In Bhup Singh v. Chedda Singh 1920 42 All 596, it was held under somewhat similar circumstances that the auction-purchasers took nothing by their purchase.
10. For the reasons given above, I am of the opinion that the decrees of the Courts below are not correct and allowing the appeal I modify them to this extent: that I decree the plaintiff's suit for plots Nos. 1326 and 983 as well with damages. As no objection was taken by anybody to the direction contained in the judgment of the learned Munsif, who had partly decreed the plaintiff's suit for possession, that the amount of damages would be determined later on in miscellaneous proceedings, I also in order to avoid confusion make the same direction as regards the amount of damages in respect of plots Nos. 1326 and 983. The plaintiff's suit having practically succeeded in its entirety, the plaintiff is entitled to his full costs in all the Courts. Leave to file an appeal by way of Letters Patent is allowed.