1. The facts involved in this dispute are not In controversy. The plaintiff, Fatima Bibi obtained a decree for partition in O. S. 445 of 35 on the file of the District Munsif, Aska and sought delivery of possession in execution of the partition decree. Item 'H' is a house which had been mortgaged by the plaintiff's brother, Usman, to Sital Prasad, the husband of defendant No. I by a mortgage dated 31-11-1925. Sital Prasad filed a suit in O. S. 625 of 1935 to enforce his mortgage and a final decree in that suit was passed on 25-11-1938. Item 'H' was put to sale subsequently, and purchased by the mortgagee on 5-4-1941 and delivered to him through Court on 6-3-1942. It is admitted, that neither was the mortgagee a party to the partition decree obtained by the plaintiff, nor was the plaintiff made a party in the subsequent mortgage suit filed by Sital Prasad. When the plaintiff, went to take delivery of possession of the house she was resisted by Sital Prasad. Defendant No. 5 is said to be a subsequent purchaser from Sital Prasad and is the only contesting defendant. The executing court upheld the title of the auction purchaser and referred the plaintiff to work out her remedy in a civil suit. Accordingly the present suit was filed under Order 21, Rule 103, Civil P. C.
2. Both the Courts below have found that there was no collusion or fraud in obtaining the partition decree -- between Usman and his sister (the plaintiff). The only question therefore, is whether the title of the plaintiff should prevail over that of the mortgagee-auction purchaser & his alienee. The principle of law applicable to this case is laid down by the Privy Council in -- 'Mohammad Afzal Khan v. Abdul Rahman', AIR 1932 PC 235 (A) where their Lordships have observed as follows:
'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 held 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.'
Mr. Mohapatra appearing for the appellant seeks to distinguish this case as one in which the mortgage was executed subsequent to the partition proceedings. I do not see how this fact can make a difference to the application of the general principle of law that the right of a cosharer to partition is not affected by an alienation created by his other cosharers. My attention has also been drawn' to a case reported in -- 'Shyama Kant Lal v. Ramlal', AIR 1941 Pat 399 (B), wherein an application for amendment of the preliminary decree, the final decree and the sale certificate, after the sale in execution of the mortgage decree had been completed, was disallowed on the ground that to allow such an amendment would be tantamount to handing over possession of the property, which had never been sold, to the auction-purchaser. Whatever other rights the appellant may have, I am satisfied that the plaintiff's right to evict the appellant cannot be resisted.
3. I am, therefore, in agreement with the view taken by the Courts below who have awarded a decree to the plaintiff for possession.
4. The appeal fails and is dismissed with costs.