Coutts Trotter, J.
1. In this case there was a partition and in that partition it was provided that certain debts should be paid by two of the separating co-parceners and certain other debts by the others. There was, also, a partition of the properties between them and it was provided that in case two of the. dividing coparceners, who are called Nos. 1 and 2, fail to discharge the debts that were allotted to their portion to be, discharged, then they as well as the properties allotted to them should be liable for the losses resulting therefrom. In plain English : If owing to the default of two of the dividing co-parceners the debts which they had undertaken to pay should have to be paid by the others, then the persons who paid should recoup themselves out of the properties allotted to the defaulting parties.
2. Now the learned Judge has held that this deed of partition Ex. D. did not create a 'charge' under Section 100 of the Transfer of Property Act and in coming to that decision he bases himself upon a decision in Madho Misser v. Sidh Binaik Upadhya I.L.R. (1887) C. 687. Now that decision as well as Harjas Rai v. Naurang (1906) 3 A. L.J. 220 is capable of two constructions. It is capable of being construed as deciding that the instrument in that case was in fact, not a present charge to secure against a future contingent liability, but a mere contingent charge arising on the happening of a possible future event If the two cases mean that, there is no particular harm in that though whether one would agree with the view they take of the construction of the particular instruments is another question. But if they are opposed to enunciate the proposition which is contended for here--and nothing short of that proposition will avail the respondent--namely wherever you have a charge to secure a liability which is not a liability existent in praesenti but will arise, if at all, in the future, that that cannot be a present charge within the meaning of the Transfer of Property Act,--then I think this Court is bound to say that those decisions, if they mean that, are bad law and should not be followed. The most forcible illustration, I think, is the one given by my learned brother, of a Government servant who gives security by the deposit of fidelity bond or other security for the faithful discharge of his duties. Is the charge bad, because he has not been dishonest at the time the deposit is made Another equally good illustration is the case of a man, who while his account is in credit at the bank, deposits his title-deeds to secure any future overdrafts there may be. It is idle to contend that those are not perfectly good charges on the property over which they purport to operate, notwithstanding the fact that the indebtedness in both eases is future and is contingent.
3. As I say if those cases in Calcutta and Allahabad are to be supposed to decide the proposition contended for, we decline to follow them.
4. The appeal must be allowed and the decree of the District Munsif will be restored with costs here and below.
Srinivasa Aiyangar, J.
5. I agree.