Ramachandra Iyer, J.
1. This appeal arises in execution proceedings of O. S. No. 4 of 1946, on the file pf the Sub-Court. Tanjore. The appellant was a third party to the suit and his connection with the matter will presently be adverted to O. S. No. 4 of 1946 was a suit for partition by Ramaswami Pillai and Palanisami Pillai. respondents 1 and 2 herein, against Arumugam Pillai and others, respondent 3 to 10. According to the plaintiffs they were entitled to a half share in the suit properties, whereas defendants who are the members of the other branch would be entitled to the other half share.
One of the items in the suit was item 14 in the plaint, a house. During the pendency of the suit there was a partition amongst the members of the defendants' family as a result of which item 14, namely, the house, fell to the share of the 4th defendant. He mortgaged that property under Ex. A. 1 on 17-4-1948 to the present appellant, Subra-mania Iyer. In the meanwhile on 21-12-1946 the partition suit was dismissed by the trial court except in regard to item 15.
The plaintiffs took up the matter in appeal to the District Court of Tanjore and thereafter to the High Court, Madras, and finally succeeded in obtaining a preliminary decree for partition. There was also a decrep in favour of the plaintiffs against the contesting defendants for costs which amounted to fairly a good sum of money. It must be stated at this stage that Subramania Iyer the present appellant, an alienee pendente life from one of the parties to the litigation, namely, the 4th defendant, was not impleaded as a party to the suit or the appeal.
At the stage of the final decree proceedings it was held expedient that item 4 should be sold under the provisions of the Partition Act; the plaintiffs purchased the same for a sum of Rs. 2500/-They were allowed to set off the amount due to their share, namely, Rs. 1250 out of the sale price, and were directed to pay the balance of Rs. 1250 into court.
Without however paying the money, the plaintiffs filed E. P. 8 of 1955 for delivery of item 14 and applied to set off of the amount due by them towards the half share of purchase price against the decree for costs which they obtained in the High Court. The appellant, the mortgagee of the interest of the 4th defendant in the property applied in E. A. No. 37 of 1955 praying that it should be held that he was entitled to payment of Rs. 1250 as representing the share of the mortgagor, namely, the 4th defendant.
He claimed that the security under the mortgage attached to the sum which was payable by the plaintiffs as purchase money towards the 4th defendant's share of item 14. Both the courts have rejected the claim of the appellant. The appellant has therefore filed the present appeal against the order of the lower court.
On behalf of the appellant it is contended that the plaintiffs would not be entitled to set off the amount payable by them as purchase money against what was due to them from the defendants by way of costs as the appellant's right as a mortgagee of the 4th defendant's interest in the house was superior to their claim.
It is stated that the sum of Rs. 1250 which the plaintiffs were bound to pay as purchase price represented the value of the 4th defendant's share in item 14 and that the security which Subramania Iyer had over the property attached to that money and any claim for set off in respect of the money claim which the plaintiffs may have against the 4th defendant would not prevail over the security.
It is clear that under the provisions of the Partition Act, if a property is sold, the proceeds of the sale would represent the shares of the persons which have been so sold. In the present case, the plaintiffs purchased the property. It is not clear as to wether the property was sold under Section 2 or Section 4 of the Partition Act, but it is admitted that the price of the house was fixed at Rs. 2500.
It is also admitted that the plaintiffs would be entitled only to half a share thereof in their own right and that they having purchased the house were allowed to retain one naff of the price representing their share in the proceeds and were directed to pay the other half, namely, Rs. 1250 the share of the 4th defendant. It is undoubted that over the sum of Rs. 1250 (being the share of the 4th deten-dant) the security which the appellant had would prevail.
The right 08 the 4th defendant to that sum would be only subject to that security as the 4th defendant would bo bound by the morlgage, which he granted to the appellant. Tho plaintiffs who had only a money claim against the defendants (appellant not being one of them) in respect of costs, decreed could attach or set oil only what was due to the 4th defendant; that right being subject to the mortgage claim of the appellant, could not prevail over it. Tho plaintiffs, therefore, cannot set offi under the provisions of Or. XXI, Rule 19 C. P. C. against what does not really belong to the fourth defendant.
2. It is contended on behalf of the respondents that the appellant's rights should be held to be subordinate to those of the plaintiffs as the appellant was only a mortgagee pendente lite. Section 52 of the Transfer of Property Act states that a property in respect of which a suit is pending cannot bo transferred or otherwise dealt with by any party to the suit so as to affect the rights of any other party thereto under any decree or order which may be passed therein.
Such a transfer however will be held void only so far as it affects the right of any other party to the litigation. The decree in the suit does not have the effect of annulling a conveyance or mortgage but would only render it subservient to the rights of the parties to the litigation. That is to say, if the appellant got a mortgage of the entire house (as he did) ana it was ultimately declared in the partition suit that the plaintiffs would ho entitled to a half share therein, the mortgagee would be bound by that declaration and his security would be dismissed to half of the property.
The effect of Section 52 of the Transfer of Property Act is that the right of successful party in the litigation in regard to that property would not be affected by the alienation but it does not mean that as against the transferor, the transaction is invalid. Nor does it mean that any other money claim which the plaintiffs may have in the course of the suit would prevail over the rights of the transferee of or mortgagee over the property.
The decree for costs in the present case was not made a charge on the property of the 4th defendant. Even then a question may arise whether the charge would be effective from the date of suit or the date of decree. It remained only as a money claim and the plaintiffs would have a right only to proceed against the interest of their judgment debtor, namely, the 4th defendant, that interest being subject to the mortgage claim of the appellant.
I nn therefore of the opinion that plaintiffs 1 and 2 would have to deposit the sum of Rupees 1250 into court and that would be available tor the appellant as security for his mortgage. The learned advocate for the respondents referred rne to thedecision of the Privy Council in Mahalingam Chet-tiar v. Ramanathan Chettiar . In that case there were crossdecrees in separate suits for payment of money between the same parties. A third party effected attachment of one of the decrees.
The decree holder in the cross decree stated that he had a prior right to set off his decree against what was due from the judgment debtor under his decreo. The Privy Council held that the right given to the holder of a decree under Order 31, Rule 18 C. P. C. of setting off of cross decrees tor the same or lesser amount cannot be defeated by the attachment of the cross decrees by third parties.
This decision proceeded on the footing that as soon as cross decrees are passed there is a right of set off between the cross decree-holders and any attachment by a stranger decree-holder thereafter would bo only subject to that right of set off which came into existence the moment the decrees were passed. This rule cannot in my opinion apply to a case where there is an anterior charge over one of the decrees, for then the right to set off can only be subject to the charge.
I have held in the present case that the mortgage in favour of the appellant was valid against the 4th defendant and therefore the right to set off which is only a personal right against (sic) cannot as such have an operation over the property. In the decision referred to above the Privy Council left open the question as to what would be the result if the cross-decree was attached by a stranger decree-holder oven before it was passed.
The decision in Swaminatha Odayar v. Official Receiver, West Tanjore : 1SCR775 was next referred to. In that case the Supreme Court held that where an owelty is awarded to a member on partition for equalisation of the shares on an excessive allotment of immovable properties to another member of the joint family such a provision of owelty ordinarily creates a charge or a lien on the land taken under the partition and such a lien would be implied by the very terms of the partition.
I am unable to appreciate how this case can have any application to the matter in dispute. For the sum of Rs. 1250 which the plaintiffs have to pay, the 4th defendant may have a charge over the properties of the plaintiff, but that does not mean that the plaintiffs have a charge in respect of their decreo for costs against the owelty money. There is a further answer to this contention.
Tha sum of Rs. 1230 represents the share of the 4th defendant in the property. It may, no doubt, bo liable to attachment or set off under Order 21. Rule 19, C. P. C., to the extent of the interest which the 4th defendant has in the money on the date of the decree; but long prior to it there was a mortgage created over his share in favour of the appellant.
The respondents 1 and 2 whose rights underthe decree for money came in long afterwardscannot sustain their claim in preference to that ofthe appellant I am of the opinion that the judgment of the lower court cannot be sustained. Thisappeal is, therefore allowed and E. A. No. 37 of1955 on the file of the Sub Court, Tanjore, willstand allowed. The appellant will. have his costsin the appeal. Leave refused.