1. My learned colleague and myself are agreed that the decree given by the Court below in this suit is erroneous but we differ, unfortunately, as to the relief which the mortgagee-plaintiffs are entitled to obtain. The principal facts are set out in my learned brother's order, but I desire to lay particular stress on the position and constitution of the family to which the mortgagors belonged and for this purpose reference must be made to the award made by Moulvi Farid-ud-din and Munshi Shaikh Shams-ud-din on the 26th July 1897. This document is to be found in Part III of the printed record of this case. Reference must also be made to a further award by Muhammad Rahmat Ullah in the year 1901, which is to be found in the printed record of First Appeal No. 193 of 1915, (see the appellants book, page 10 et seq).
2. To deal first with the award of the 26th July 1897. This document sets out in detail the constitution of the family to which the mortgagors belong. Although a Muhammadan family, it is declared to be a joint family and it is clearly stated that although the members incurred debts and hypothecated properties which, stood recorded in their own names the entire property of the family was joint property and those persons whose names were entered in the public register did not acquire any separate rights.
3. The following extract from this award maybe quoted:
All lived as members of a joint family and the entire business of all of them was joint. No sort of separation existed between them.... This jointness of the family existed in all household affairs and in the purchase and acquisition of property, debts, expenditure on marriages and debts and in all other matters. No sort of disunion or separation existed in this family and in view of permanent jointness the property was entered in different names and in different ways. Some property was purchased in the name of some body and some in the names of others. This was the case of debts also. Some loans were taken in the name of one person and some in the names of others. Sometimes this jointness extended so far that the name of some particular person was recorded in the public register against the ancestral property inspite of the specification of shares.... On the other hand the inference is simply that loans were taken in the names of different persons at different times and in lieu thereof the property of any; of the executants of documents relating to debts was hypothecated specifying therein the ancestral property or that property which was acquired in his name.... We are of opinion that these facts do not affect the jointness of the family; on the other hand this is a practice observed in all joint families.
4. It follows from this that the entries made in the revenue registers bore no relation to the actual facts. Items of property recorded in the names of individual members of the family did not belong exclusively to them but were the joint property of all the members and secured debts contracted by individual members and charged upon specific items of property recorded in their names. were in fact debts binding upon all the members of the family and upon all the family property which was held jointly. In short, it would appear that individual members were treated as agents of the entire family for the purpose of borrowing money for family purposes, and the family property in its entirety was charged with debts so incurred, and it was upon this footing that actual division of the family property came to be made by Muhammad Rahmat Ullah in the year 1901 (see his award printed at page 10 et seq of the appellants book in First Appeal 193 of 1915). Among the issues which Muhammad Rahmat Ullah set himself to determine was issue No. 5 (page 11 of his award) which reads as follows:
What are the joint family debts and what is the amount thereof?
5. At page 17 of the award the arbitrator records his finding and states there is no disagreement between the parties as regards the debts entered in columns 1 and '2 of List No. 5 being joint.
6.: List No. 5 is to be found at page 26 of the award and the first item in column 1 is the debt contracted under the document now in suit. The amount of the debt is stated to be Rs. 35,670-5-6. This debt was duly apportioned between the persons to whom shares were allotted by the award.
7. The arbitrator laid down that the joint debts (of which the debt in suit was one) were to be paid in the proportions laid down in List No. 6, (printed, at page 27 of the award). He further ruled that the share allotted to each co-sharer stood hypothecated for his share of the joint debts. The award also provided for contribution for it was declared that in the event of any sharer being compelled to pay a sum in excess of his due share of the joint debts he was to be entitled to claim contribution against the other sharers and their property.
8. The mortgage-deed in suit should, therefore, be interpreted in the light of these facts as determined by the two awards to which reference has just been made.
9. With regard to the law as laid down in the case of Byjnath Lal v. Ramoodeen Chowdhury 11 A. 106 : 21 W.R. 233 : 3 Sar. P.C.J. 333 : 2 suth. P.C.J. 942 (P.C.), which is cited in the order of my learned brother, that was a case in which a mortgage of an undivided share had been made by one of several co-owners of joint property. The case was decided upon the principle that while a mortgagor has power to pledge his undivided share in joint property he cannot by so doing affect the interests of other co-sharers. The person who takes the security takes it subject to the rights of those other co-sharers to enforce partition and thereby to convert what was an undivided share of the whole into a defined portion held in severalty. And so where there is a mortgage of an undivided share followed by a partition under which the co-sharers of the mortgagor take the lands allotted to them free, of the mortgage, the only right of the mortgagee is to follow the parcel allotted to his mortgagor. But this is not what happened in the present case. In the first place, the deed does not purport to mortgage an undivided share or shares and in the next place it is apparent from what has been set out above that when partition came to be made the co-sharers other than the mortgagors did not take the lands allotted to them free of the mortgage in suit but subject to it.
10. In his comments upon the case of Byjnath Lal v. Ramoodeen Ckawdhury 11 A. 106 : 21 W.R. 233 : 3 Sar. P.C.J. 333 : 2 suth. P.C.J. 942 (P.C.), Dr. Ghosh at page 292 of his book on the Law of Mortgage in India (4th Edition) observes as follows:
But if in making the allotments the incumbrance is taken into account in valuing the share which is subject to it, the partition will not, for obvious reasons, affect the security of the mortgagee.
11. In other words, the mortgagee can enforce his security in its original form notwithstanding the subsequent partition. If this is a correct view of the law the mortgagees in the present case would ordinarily be entitled to bring to sale the properties as specified in the mortgage-deed. But the lower Court has found, and the finding has not been challenged, that the suit is time-barred as against the representatives of Asad Ullah and Zia Ullah, two of the mortgagors and that the claim is alive only against the legal representatives of the third mortgagor Sharf-ud-din.
12. Another fact to be noticed is that subsequent to the date of the mortgage certain sums were paid by representatives of some of the mortgagors and in consideration of these payment some items of the mortgaged property were released. These are specified in the endorsements made upon the deed (see the translation at page 9 of the appellant's book in First Appeal No. 193 of 1915).
13. According to the recitals in the deed of mortgage the property mortgaged consist ed (a) of certain, specified shares in villages which were declared to belong jointly to all the three mortgagors and (6) of certain property--shares in villages and house property described as being the sole property of Sharf-ud-din.
14. I agree with the Subordinate Judge that the items of property described in the mortgage-deed as belonging exclusively to Sharf-ud-din are liable to be sold, excluding, however, any items which were subsequently released in whole or part from the mortgage.
15. As to the (a) property, i.e., the property, described in the deed as joint property of the three mortgagors the Subordinate Judge held that none of it could be brought to sale because it could not be ascertained what share Sharf-ud-din was entitled to in the joint family property at the time of the mortgage. As pointed out by my learned colleague in his order the Subordinate Judge is in error for it is proved that at the time of the mortgage Sharf-ud-din was entitled to 711/12 pies out of 16 annas and, that being so, I am of opinion that the items falling under the head (a) are liable to be sold to the extent of 711/12 pies out of 16 annas which is represented by the 95/2304.
16. I would, therefore, vary the decree of the Subordinate Judge by providing for sale of a 95/2304 share of those items of property described in the mortgage-deed as the joint property of the three mortgagors. In other respects I would leave the lower Court's decree as it is.
17. This is a plaintiffs appeal arising out of a suit for sale on the basis of a mortgage-deed dated the 12th September 1893, executed by three persons Asad Ullah, Zia Ullah and Sharf-ud-din for a sum of Rs. 22,000 bearing interest at the rate of 10 annas per cent per mensem with the stipulation that interest if not paid every year would be added on to the principal and bear interest at the same rate.
18. Under this deed a very large number of properties were mortgaged. Three specifications of the village properties and a house were hypothecated under this deed. The first one was said to belong to all the three debtors jointly. The second and the third were said to belong to Sharf-ud-din only. The plaintiff claimed a decree for Sale of the mortgaged properties as specified in the mortgagedeed.
19. The mortgagees were Bhawani Prasad, Brij Mohan Lal and Raja Ram. Only Raja Ram and his son Sheo Prakash instituted this suit, making Bhawani Prasad and the other members of his family pro forma defendants. Credit was,given for some amount said to have been realised.
20. There were a very large number of defendants to the suit who were stated to be either the heirs of the three mortgagors or subsequent transferees from them or their heirs. No further details were set forth in the plaint.
21. A number of separate written statements were filed on behalf of the various groups of the defendants. It is not necessary to enumerate all the pleas in detail. It will be sufficient to say that the main pleas were that the claim was barred by limitation; that all the properties mortgaged did not belong to the three mortgagors and that without showing which of the defendants is in possession of what property the claim could not be decreed. It was also pleaded that some of the mortgaged properties had been released from liability and were no longer liable to be sold.
22. The learned Subordinate Judge was of opinion that the claim was barred by limitation as against the representatives of Asad Ullah and Zia Ullah. He, however, held that there was a written acknowledgment of liability signed by Sharaf-ud-din within 12 years of the mortgage-deed and also within 12 years of the institution of the suit which saved limitation as against his representatives but he held that the defendants were entitled to require the plaintiffs to prove that the mortgagors were owners of the property mortgaged and were competent to execute the mortgage. Being of opinion that there was no evidence on the record to show what share was owned by which of the mortgagors in the mortgaged property or in the family property he thought that it could not be said what share should be exempted and wl: at not. Acting on the admission made by Mr. Abid Ali, Vakil for some of thedefen-dants, he held that the properties given in the second and third specifications of the mortgage-deed belonged exclusively to Sharf-ud-din and that the plaintiffs could seek their remedy against those properties. As to the joint properties detailed in the first specification he was of opinion that the mortgaged money could be recovered by sale of any of those properties. He, accordingly, passed a decree for the properties described in the mortgage-deed as belonging exclusively to Shurf-ud-din, except certain properties in the possession of particular defendants named and dismissed the claim with regard to the property described therein as joint property. Village Adampur and half shares in Ulda and Kurha were also exampted. He also directed that certain properties released by Bhawani Prasad would not be liable for the amount of the mortgage-debt found due to him.
23. Babu Sheo Prakash plaintiff not being satisfied with the decree passed in his favour has come up in appeal to this Court. None of the defendants, however, has either filed a separate appeal or any cross-objection.
24. The position taken up by the plaintiffs in the plaint as well as at the trial was that they were entitled to follow the entire mortgaged property in the hands of the defendants whosoever they may be and this claim was persisted in the grounds of appeal filed in this Court.
25. There is one circumstance, however, pf which the true significance has been entirely overlooked by the parties as well as the Court below. The three mortgagors were members of a very large Muhammadan family which owned shares in a large number of different villages. The three executants were only entitled to undivided shares in the various villages along with the other members of their family. In the mortgage-deed, however, they professed to be the execlusive owners of the entire shares in certain specified villages mortgaged without making any mention of the rights of the other members of the family.
26. On the 4th of February 1897, three private arbitrators pronounced a lengthy award settling all the disputes of the family and defining the share which each member was entitled to In the cause of their findings they pointed out that all the members of the family had been living together as if they constituted a joint family and had been incurring expenses and also acquiring properties for the whole family though in the name of one or other of the members. This finding led them to the conclusion that no matter whose name was actually entered against any property it must be deemed to have been owned jointly by all the members. They were further of opinion that all the members of the family were jointly responsible for the payment of all the debts even though the same had been borrowed by only some of the members. The question of personal liability now does not arise as the suit was instituted long after the expiry of six years. Leaving out of account the share which. Sharf-ud-din became entitled to by inheritance between the dates of the mortgage-deed and the award (for this share must be excluded for the purpose of this appeal) I am satisfied that according to their findings Sharf-ud-din had at least a 711/12 pies-share if the family estate be deemed to be sixteen annas. The plaintiff's Vakil in the oral pleadings printed at page 32 of the paper-book admitted, that Sharf 11 ud-din's share was only a 711/12 pies in the 16 annas estate. And this was by no means an over-estimate.
27. At page 7 the arbitrators found that Aman-ullah, the grand-father of Sharf-ud-din had 3-annas and 4 pies. As Sharf-ud-din's father had three other brothers and Sharf-ud-din himself had a brother his ancestral share came to 1/8 of 3 annas 4 pies which amounted to 5 pies. Then again Mubarakullah, by inheritance and purchase had 9-annas and 4-pies. By, collateral inheritance Sharf-ud-din got 5/192 of. 9 annas and 4 pies which was equal to 5/192 X 112 = 35/12 = 212/12 pies. Thus excluding any other small fractional share which he might have inherited on the death of some other members, Sharf-ud-din's total share was in no cases less than 7 11/12 pies, which the plaintiffs Vakil admitted. The view of the learned Subordinate Judge that there is nothing to show what share he owned is entirely wrong.
28. On the 13th September 1901,, Maulvi Rahmat Ullah by an arbitration award divided up the entire family property including villages, houses and other properties and in this division all debts and liabilities were fully taken into account. Thus the three mortgagors in the final adjustment of the accounts were charged with the due proportion of the debt for which they alone had undertaken the liability. Had the partition beep made the equities of redemption only, the case would have been simple as then the charge would have remained attached to the properties originally mortgaged. This was not done. As might naturally be expected in such a partition the properties which were ultimately allotted to Sharf-ud-din were not quite the same which had been described in the mortgage-deed as belonging to him exclusively. All the various properties were lumped together as the joint family property of the parties and the legal share of Sharf-ud-din was allotted to him. The main complexity of this case ds caused by the difficulty in finding out the property which was allotted to Sharf-ud-din in lieu of the properties which he had mortgaged.
29. It was laid down by their Lordships of the Privy Council as early as 1874, in the case of Byjnath Lal v. Ramoodeen Chowdhury 11 A. 106 : 21 W.R. 233 : 3 Sar. P.C.J. 333 : 2 Suth. P.C.J. 942 : (P.C.) that a mortgagor has power to pledge his own undivided share in joint villages, but it is clear that he cannot by so holding affect the interests of the other sharers in them, and that persons who 'take the security take it subject to the 'right of those sharers to enforce a partition and thereby convert what was an undivided share of the whole into a defined portion held in severalty.
30. This was a case of a Revenue Court partition, but the High Courts in India have applied the same principle to all cases of partition whether by award or by private agreement. Some of these cases are summarised in the judgments in the case of Bhup Singh v. Chedda Singh 58 Ind. Cas. 171 : 43 A. 596 : 18 A.L.J. 807 : 2 U.P.L.R. (A.) 345.
31. This being so, the mortgagees cannot now sell the property according to the descriptions given in their mortgage-deed. They are entitled to sell, in fact are bound to all the properties which as a result of the partition have been allotted to their mortgagors as a substitute for the security. The decree of the Court below directing that the property which was described as belonging solely to Sharf-ud-din should be sold up regardless of the effect of the partition is grossly unjust to many of the defendants. Even in those properties Sharf-ud-din had only undivided shares which are subject to the enforcement of the right of partition by the other co-sharers and some of those have been allotted to quite different persons.
32. In my opinion, therefore, the only proper decree to pass in the present case should have been to direct the sale of that part of ;the property allotted to Sharf-ud-din's sharepartition' which represented his share in the mortgaged property; for only that much can be regarded as the equivalent of the mortgagees security which the latter are entitled to follow. If one were to allow a sale of the entire properties allotted to Sharf-ud-din it might possibly amount to an unjustified enhancement of the mprtgage security.
34. It has been strongly contended on behalf of the plaintiffs that the true interpretation of the mortgage-deed is that the three debtors intended to mortgage their whole interest in the entire estate belonging to the family that though they professedly mentioned only some of the properties by name the idea was that those properties represented their whole interest in the estate and they were really intending to mortgage the whole of that interest. The contention is that although only some specific properties were mentioned in the deed, it should be presumed that they were mortgaging their whole interest in those villages as well as in all the other villages not covered by the deed which were part of the family estate. On this hypothesis it is argued that Sharf-ud-din had purported to mortgage all the assets which he was possessed of and it, therefore, follows that whatever he got at the partition was allotted to him in lieu of his entire interest which had been previously mortgaged. If one were to accept this contention no further difficulty would remain in the case as one would at once admit that the plaintiffs are entitled to proceed against whole of the property which was allotted to Sharf-ud-din at the time of the partition. I am, however, of opinion that the appellants contention is untenable. The debtors in the mortgage-deed confined the mortgage to the properties specified therein. It is impossible to hold that the mortgagees could enforce the charge against any property other than that mentioned in the registered deed.
35. Suppose in three villages A,B and C a person owns one-third share in each altogether he owns an interest represented by A+B+C/3, and also suppose that he wrongly mortgages the whole of A, can it be said that the mortgage of A is tantamount to a mortgage of A+B+C/3? Can the mortgagee say that because that person wrongly mortgaged more than his share in A the mortgagee should be compensated out of his shares in B and C? When the law requires a registered deed for creating a mortgage, how can the mortgagor's interest in B and C be ever charged? As Sharf-ud-din actually owned a less share than that mentioned in the mortgage-deed, the charge would have had to be confined to the smaller share if dispute as against the representatives of the other members of the family had arisen. I must, therefore, take it that the charge was created only on the properties covered by the mortgage-deed and on no other. As the claim against the representatives of Asad-ullah and Zia-ullah is barred by time, it is obvious that the charge which the plaintiffs are entitled now to enforce is that which was created on Sharf-ud-din's share in the properties mentioned in the mortgage-deed. A reference to the subsequent award makes it quite clear that there was very large number of village and house properties in which also Sharf-ud-din had shares but which were not included in the mortgage-deed. On no reasonable hypothesis I feel justified in assuming that Sharf-ud-din, although he named some of the properties only, really intended to mortgage his interest in all the other properties also. In my opinion the language of the document is not capable of any such interpretation.
36. In the leading case of Byjnath Lal v. Ramoodeen Chowdhury 11 A. 106 : 21 W.R. 233 : 3 P.C.J. 333 : 2 Suth. P.C.J. 942 (P.C.), their Lordships of the Privy Council took care to point out at page 237 page of 21 W.R.-Ed that it is certainly possible to conceive cases in which the security not covering the undivided share in the whole estate, it might be difficult to determine which of the lands allotted in substitution of that share represented the mortgage premises. No such difficulty, however, existed in that case as the property allotted in substitution was easily traceable.
37. If a number of co-sharers own undivided shares in a number of villages constituting an estate and one of such co-sharers mortgages shares in some of the villages only and as a result of a subsequent partition the villages are re-distributed, it is just and equitable, that the charge should attach to that fraction of the share allotted to the mortgagor which represents the share mortgaged by him originally. The charge cannot be allowed to be enforced against the whole of the property allotted to the mortgagor as part of it obviously represents that interest of his which was unencumbered. In the case of Hakim Lal v. Ram Lal 6 C.L.J. 46 in an elaborate judgment Mookerji, J., has expressed the same view and I have no doubt, in my mind, that this, principle is in consonance with the rules, of justice, equity and good conscience.
38. The true way to find out the substituted > security is by determining the ratio which the value of the shares owned by Sharf-ud-din in the mortgaged properties at the time of the partition bore to Sharf-ud-din's, actual share in the entire family property. This will at once give us what fractional share of his interest in the entire estate he, had mortgaged. Assuming that there has been no increase of his shares by subsequent inheritance or other acquisition, the substituted equivalent of his mortgaged share will obviously be this very fraction out of the properties which were allotted, to him as representing his entire interest at the time of the partition. To give a concrete example, suppose a co-sharer's interest in the entire family estate, was representad by X+Y. He mortgaged only an interest represented by X. It is obvious X that he mortgaged X/X+Y of his entire interest in the estate. If on partition he was allotted a property Z, the mortgage security will be represented by the fraction X/X+Y of Z.
39. The evidence to show the actual values of the various properties is meagre. But in the absence of any more satisfactory evidence the Government revenues assessed on the various village properties may be assumed to bear the right proportion of their respective values. These Government revenues are mentioned in the mortgage-deed as well as in the second award. The house properties were separately divided in the last mentioned award and so they need not be mixed up with the village properties.
40. According to the plaintiff's own admission the share of Sharf-ud-din in every bit of the property was 7 11/12 pies out of sixteen annas
41. Expressed in terms of the fraction of a rupee it comes to 95/2304.
42. The total Government revenue of the entire family zemindari by addition of the figures on page (?) = Rs. 33,332.
43. The total Government revenue of the properties mortgaged as given on page? Rs. 3,396.
44. Thus the Government revenue of the zemindari not covered by the mortgage-deed would be Rs. 29,936.
45. It is patent that just before the partition Sharf-ud-din had interest in two sets of properties. One of the revenue of Rs. 3,396 against which the mortgage could be enforced, and the other of the revenue of Rs. 29,936 against which it could not On partition Sharf-ud-din received properties in lieu of both these interests. The heirs of Sharf-ud-din are, therefore, entitled to say that that portion of his allotted share which represents his unencumbered interest should be freed from the charge and this unencum bered portion obviously is (95/2304 x 936)/(33,332 x 95/2304) of the property allotted to him. This is the same thing saying that only (95/2304 x 3396)(33,332 x 95/2304) of the property allotted to him should be ordered to be sold.
46. There is one other fact which has to be taken into consideration. Between the mortgage and the partition Sharf-ud-din acquired some more fractional shares by inheritance on the death of some of his relations, with the result that his original 7 11/12 pies share was increased. On partition be received property not only as representing 711/12 pies but as representing this increased share. Thus in order to find out the property given to him in lieu of his original 711/12 pies, the allotted properties must be reduced by a fraction. By calculation this fraction amounts to 69 and odd = 7/10 approximately.
47. The properties allotted to Sharf-ud-din on partition are described in detail on page 34 of the old book.
48. It follows, therefore, that the property which cannot be ordered to be sold = (95/2304 x 3396) - (33,332 x 95/2304) x 7/10 of the property given to him as detailed on page 34.
48. The last thing that remains to be considered is the effect of Sharf-ud-din having purported to mortgage more than his share In the mortgaged properties. By virtue of Section 43 of the Transfer of Property Act the charge can be enforced against any property which he purported to mortgage, although it did not belong to him and which be has since acquired. But Section 43 would, of course, only apply to such properties acquired by him subsequently as Were actually mentioned in the mortgage-deed. If Sharf-ud-din inherited shares in other villages, they cannot be followed. If, therefore, there are any villages common to the mortgage-deed and the list at page 34 then in addition to the fraction determined by me as above, the mortgagees are entitled in those common villages to get the balance of the share up to the full extent of the share mortgaged if the village falls, in the second or the third list and up to one-third of the share mortgaged if it falls in the first list given in the mortgage-deed.
49. The result will be that out of the 7/16th and odd shares in the villages mentioned on page 34 if any one village also falls in; the second or the third specified list of the mortgage-deed, the share liable to be sold would be increased to that extent provided that it is not already more; if it falls in the first specified list it will be increased, to one-third of the share mortgaged provided that it is not already more; and if it falls in neither of those specifications then it will be (95/2304 x 3396) / (33,332) + 95/2304 x 7/10 of the seven-sixteenth and odd shares in the properties mentioned at page 34 = (95/2304 X 3396) / (33,332 x 95/2304) x 7/10 = 7/10 + 3332/3332
50. As the true significance of the partition was not realised in the Court below, and as none of the defendants have appealed, I would give the plaintiffs an option either (1) to let the wrong decree remain as it stands, or (2) to let it be substituted by a new decree in accordance with the directions given by me above.
51. Since preparing the above judgment, I have had an opportunity to see the judgment proposed to be delivered by my learned brother and I wish to add a few more words. I agree that if in making the allotments the encumbrance is taken into account in valuing the share which is subject to it, the partition will not affect the security of the mortgagee. I, however, understand this to mean that in allotting the properties the proportionate encumbrance on each of the properties is deducted from its market-value, and file partition made on the valuations of the equities of redemption; for example, when properties of the values say A, B and G with charges a, b, and c on them are treated as worth (A-a), (B-b) and (C-c) respectively.
52. I myself pointed out in a previous portion of this judgment that 'had the partition been made of the equities of redemption only, the case would have been simple as then the charge would have remained attached to the properties originally mortgaged.' As I read the award of Mr. Rahmatullah, that unfortunately was not what was done.
53. Estimated values of the houses as given in List No. 1 do not take into account the encumbrances; nor do the proportionate shares of the co-sharers in List No. 2. Similar remarks apply to lands and shares in them (Lists Nos. 3 and 4).
54. The profits of the properties allotted to the various co-sherers as mentioned in Lists Nos. 10/1, 10/2, etc. to 10/8 correspond as nearly as they can to the profits to which the co-sharers are entitled according to List No. 10. In fact only the profits are estimated and not the capitalised values of the shares.
55. It is true that the arbitrators took great pains in working out calculations to show the proportionate liabilities of the various co-sharers. Lists Nos. 5 to 9 give the results of such calculations. The amounts were, however, not deducted from the shares in List No. 10. The arbitrators had obviously the pious hope that all the co-sharers would pay to the creditors their respective shares of the entire family debts, and thus free the whole estate from all liabilities. That ideal was, of course, not realized. So the only useful purpose that the calculations can serve now would be in working out equities inter se, when any question of rateable contribution arises. So far as the mortgagees, who were no parties to the award, are concerned they, of course, are not bound by any splitting up of the liabilities.
56. I would point out once again, that the effect of giving the plaintiffs a decree for the sale of the properties as detailed in the mortgage-deed, ignoring the award altogether, would be to hold that the claim is, time barred against the representatives of Asad-ullah and Zia-ullah, and yet order the sale of many items of properties which fell to their lots under the award and. which are their exclusive possession.
57. It is on these grounds that I still adhere; to the view expressed originally.
58. In view of the difference of opinion between us regarding the relief which should be granted to the plaintiffs, we direct that the record be laid before the Chief Justice under Section 98, Sub-section (2), of the Order P.C. in order that the decision of one or more of the other Judges maybe taken.
59. The question for decision is 'what relief in law are the plaintiffs entitled to?
Kanhaiya Lal, J.
59. This is a reference under Section 98 of the C.P.C. and the question: referred for opinion is, to what relief in law the plaintiffs are entitled?
60. The suit which has given rise to this reference was filed by the plaintiffs for the recovery of money due on a mortgage executed by Asad-ullah, Zia-ullah and Sharf-ud-din on the 12th of September 1893. The mortgage comprised some properties which were described in the mortgage-deed as the joint properties of the three mortgagors and certain other properties which were stated to have been held separately by Sharaf-ud-din alone. The defendants are either the heirs of the mortgagors or their transferees, or other members of the family to which the mortgagors belong and to whom some of the mortgaged properties or portions thereof have been allotted on partition by a subsequent award of arbitration.
61. The claim was opposed by some of the defendants on various grounds which are not material for the purposes of this reference. The Court below dismissed the claim as against the heirs and transferees of Asad-ullah and Zia-ullah on the ground that, it was barred by limitation and decreed the claim against the separate properties mortgaged by Sharf-ud-din with the exception of certain properties in the possession of certain transferees on the basis of certain acknowledgments found to have been made by Sharf-ud-din. In regard to the properties described in the mortgage-deed as having been jointly held by the three mortgagors the Court below refused to grant,any relief holding that it was not shown what share-thereof was owned by Sharf-ud-din.
62. The plaintiffs appeal. Their main contention is that in the. absence of evidence to the contrary the Court below ought to have enforced the mortgage against the one-third share of Sharf-ud-din in the properties mortgaged jointly by him and the other mortgagors. An objection is also taken that the separate properties mortgaged by Sharf-ud-din against which the claim had been decreed were not correctly described in the decree and that the amount due to Bhawani Pershad and his sons, who were impleaded as pro forma defendants, ought to have been separately specified because they were found to have realized a portion of the mortgage-money.
63. The Bench hearing the appeal came unanimously to the conclusion that at the time of the mortgage Sharf-ud-din was entitled to 711/12 pies-share in the family properties, certain shares of which had been mortgaged, but while one of the learned Judges came to the conclusion that the mortgage could be enforced against the family properties mortgaged to the extent of that share in addition to the separate properties mortgaged by Sharf-iid-din the other learned Judge was of opinion that it could only be enforced after partition against the substituted securities.
64. In regard to the properties described in the mortgage-deed as belonging exclusively to Sharf-ud-din it was not disputed before the Court below that they were liable to sale excluding such items as had been subsequently released in whole or in part from the mortgage (vide the statement of the defendants Pleader, dated the 17th February 1912, at p. 5 of Part II of the printed record). The principal contesting defendants have neither appeared nor filed any appeal or cross-objection; and the decision of the Court below in regard to the separate properties mortgaged by Sharf-ud-din has become final. The plaintiffs, however, point out certain mistakes or omissions in the description of the separate properties given in the decree. Those mistakes or omissions can and ought to be rectified so as to bring the decree into conformity with the judgment.
65. The matters in difference relate principally to the other properties mortgaged jointly by Sharf-ud-din and the other mortgagors; and the effect of the subsequent partition thereof in common with the separate properties by arbitration has also to be considered. My learned brother Lindsay, J., rightly pointed out that by virtue of the award made by Muhammad Khaalil-ud-din and Shaikh Shams-ud-din on the 26th of July 1897. the mortgage in question was treated as a joint debt due by all the members of the family to which the mortgagors belong ed and could be enforced against the properties mortgaged by Sharf-ud-din which were in their possession because the partition was made subject to that mortgage. My learned brother Sulaiman, J., pointed out with equal propriety that after the partition the mortgagees could not sell the joint properties mortgaged according to the descriptions thereof given in the mortgage-deed even to the extent of the share of Sharf-ud-din, because some of those properties had been allotted by a subsequent partition to the shares of the other members: of the family. According to his view the mortgage could only be enforced against, the substituted securities which could be determined by ascertaining the ratio which the value of the shares owned by Sharf-ud-din in the mortgaged properties bore to the actual share of Sharf-ud-din in the entire family properties forming the subject of-that partition. It is manifest that if the partition be ignored the sale of the mortgaged properties according to the old descriptions would be attended with difficulties; and the protection which ought to be extended to the intending purchasers and the members of the family other than Sharf-ud-din and his heirs and assigns who have obtained the same by partition would not be adequately secured. The contingency of there being prior or subsequent mortgages on the substituted securities cannot, however, be overlooked. No plea was raised in the defence that the sale should be confined to what is now described as the substituted securities and no issue of enquiry was directed on that point. All that appears is that the landed properties mortgaged stood recorded in the revenue papers partly in the names of Sharaf-ud-din, Asad-ullah, and Zia-ullah and partly in the name of Sharaf-ud-din alone to the exclusion of the other members of the family. By the award of the 26th July 1897, all these properties were treated as the joint properties of all the members of the family; and by the award of the 13th September 1901, these properties were partitioned and Sharaf-ud-din was allowed a seven-annas and odd krants share in the properties specified in List No. 10/4 appended to the same. The properties described as the separate properties of Sharaf-ud-din in the deed of mortgage were included in that partition. But so far as those properties go, the decision of the Court below granting the plaintiffs decree for their sale has already become final; and the contesting defendants cannot be allowed to raise a plea in assertion of a joint right which was not taken by them during the trial and which would be inconsistent with the statement of their Pleader of the 17th February 1915. The properties separately mortgaged by Sharaf-ud-din must, therefore, be left entirely out of account.
66. As regards the block of properties jointly mortgaged by Sharf-ud-din and his co-mortgagors against which the claim of the plaintiffs has been dismissed, the question is not so concluded.
67. Almost all the members of the family to which the mortgagors belonged were parties to the arbitration or have either no interest in the properties now in dispute or have taken no part in opposing the claim. The award of the 26th of July 1897 declared that the properties recorded in the names of the individual members of the family did not belong exclusively to them but were the joint properties of all the members and that the debts contracted by the individual members and charged upon specific items of property recorded in their names were, in fact, debts binding upon all the members of the family and upon all the family properties which they held jointly. One of the issues dealt with by the arbitrators was whether the entire property of the family was liable for all the debts standing in the names of the individual members of the family or whether they were due only by the persons in whose names they stood. Dealing with that issue, the arbitrators said:
As regards issue No. 27, we, the arbitrators, are of opinion that the entire property of this family shall be liable for the payment of all the loans, that have been taken in the names of the members of this family. The aforesaid loans will not be a charge on the person and property of that person alone in whose name they were taken irrespective of the fact whether they may be simple or under hypothecation of that property of the executant which may be in his name. We, the arbitrators, are of opinion that any loan that was taken in this family and is still payable or that has already been paid is jointly due by all the jnembers of the aforesaid family. It has nothing to do with the person and property of any particular person. We cannot determine what for the loan aforesaid was taken. Just as it is a fixed rule as regards a joint family that the property that is acquired in any way by the physical and mental activities of any one, while it is joint, belongs to all its members, in the same way all the loans that were taken will be a charge on all the members of the family and on the ancestral and acquired property.
68. The arbitrators held in effect that all the members of the family were liable for the payment of the debts including the mortgage now in suit. The partition was made subject to a joint liability for the payment of the mortgage and the partition cannot, therefore, affect or prejudice the security of the mortgagees.
69. It would, however, save future difficulties if the substituted securities corresponding with the share of Sharf-ud-din in the joint properties mortgaged is also traced and entered in the decree. As observed by their Lordships of the Privy Council in Byjnath Lal v. Ramoodeen Chowdhury 11 A. 106 : 21 W.R. 233 : 3 Sar. P.C.J. 333 : 2 Suth. P.C.J. 942 (P.C.) and Bhup Singh v. Chedda Singh 58 Ind. Cas. 171 : 43 A. 596 : 18 A.L.J. 807 : 2 U.P.L.R., a mortgagee is entitled by substitution to pursue his remedy against the share or property which his mortgagor has obtained under the partition.
70. The share of Sharf-ud-din in the joint properties on the date of the mortgage was 711/12 pies out of the entire family share It was enlarged by subsequent inheritance according to the award to something like 8 pies 14 krants share, but in the statement held by them (vide page 32 of Part I of the paper-book) the plaintiffs have contended themselves with a 711/12 pies share.
71. In order to determine the securities substituted therefor we have to find out the ratio which the profits of the share of Sharf-ud-din in the joint properties mortgaged bore at the time of partition to has actual share of the profits in the family properties which were then partitioned. The profits of the 711/12 pies-share of Sharf-ud-din in the block of joint properties mortgaged amount, according to the award, to Rs. 591-13-8 or roughly Rs. 592. The profit of the total share of Sharf-ud-din, in the properties comprised in the partition was roughly 7/16th share of Rs. 4,564 (vide the list No. 10/4 attached to the award of the 13th September 1901). The substituted securities representing the share of Sharf-ud-din in the block of properties mortgaged jointly by Sharf-ud-din and his co-mortgagors thus amounted to a 592/7/10 x 4564 share or, in other words, 2368/7987th share of the properties entered in list No. 10/4 appended to the award of the 13th September 1901.
72. The house mortgaged was treated as joint property by the award and allotted to Sharf-ud-din and Muhammad Yahia to the extent of their respective shares.
73. My opinion, therefore, is that the plaintiffs are entitled to enforce their mortgage against a 711/12 pies share of Sharf-ud-din out of the entire family share in the village properties mortgaged jointly by Sharf-ud-din and his co-mortgagors, corresponding with a 2368/7967th share of Sharf-ud-din in the properties mentioned in the partition list No. 10/4 appended to the award of the 13th September 1901. They are also entitled to enforce their mortgage against the properties described in the mortgage-deed as the separate properties of Sharf-ud-din excepting the house which will be treated as the joini property of Sharf-ud-din and Muhammad Yahia, wherein the share of Sharf-ud-din alone will be liable to sale and such other items of property as have already been excluded or released by the Court below. Any mistakes or omissions in the decree of the Court below regarding the separate properties against which a decree was passed by that Court will be rectified so as to bring it into conformity with the judgment. The other matters raised in the appeal will be dealt with by the Bench concerned before which this opinion will be laid forthwith.