1. There is no ground for S.A. No. 411. It relates to the two-thirds share belonging to the plaintiff and his father. It must be dismissed with costs. S.A. No. 412 relates to the one-third share in the suit properties which was originally the share of the 1st defendant. The mortgage by the 1st defendant was before the partition. At the partition the whole of the suit properties fell to the plaintiff's share. It is not alleged that the partition was otherwise than fair and equal. It was not in fraud of the mortgagee. The authorities are clear that a mortgagee of an undivided share in common property or of one of the joint properties before partition from one of the sharers is only entitled to proceed against the substituted property which falls to the share of the mortgagor at the partition unless the partition has been unfair or is in fraud of the mortgagee. The principle is well explained in Domat's Civil Law, Section 1671. In Byjnath Lall v. Ramoodeen Chowdry (1874) I.L.A. 106 the Privy Council has adopted the same principle though the partition in that case was made by the Revenue authorities under a Regulation and the Partition or Butwara proceedings had been started at the date of the mortgage and the mortgagee could not be a party to the proceedings under the Regulation.
2. But the broad principle above referred to has been applied in numerous cases. See Hem Chunder Ghose v. Thakomoni Debi I.L.R. (1893) C. 533. Amolakh Ram v. Chandan Singh I.L.R. (1902) A. 483. Shahebzada Mahomed Kasim Shah v. R.S. Hills I.L.R. (1907) C. 388 and Hakim Lal v. Ram Lal (1907) 6 0. L.J. 46.
3. In the last case Mr. Justice Mookherjee has discussed and explained the rule at some length. We do not think that the decision in Lakshman v. Gopal I.L.R. (1898) B. 385 is opposed to it. In that case the partition was found to be in fraud of the mortgagee. It is pointed out by Mr. Justice Ranade that the mortgagee should have been made a party to the partition suit according to the practice in Bombay. The partition was therefore ordered to be reopened so as to assign to the mortgagor co-sharer the properties which had come to the plaintiffs at the partition. That decision fully recognises the authority of the Calcutta cases. We must, therefore, hold that the Subordinate Judge was right in decreeing possession to the plaintiff of the entire property.
4. We must dismiss the second appeal with costs.