Macpherson and Beverley, JJ.
1. The appellants before us are persons who intervened and were made defendants in the Court of First Instance. It has been found that the mortgaged property, consisting of 2 bighas of raiyati land within specified boundaries, was the ijmali property of the mortgagor, the father of the first seven defendants, and of the appellants; that the appellants' share of it was 3 annas 3 gundas 1 cowrie 1 kranti, and that subsequent to the execution of the mortgage bonds there was a partition under a decree of Court by which the 2 bighas in question, with the exception of a small portion which was left joint, was allotted to the appellants. The latter were not concerned in the mortgage, and the mortgagee was not a party to the partition suit.
2. Both the Courts have held on those facts that the mortgagee was not affected by the partition, and that the mortgaged property, with the exception of the appellants' share, should be sold in satisfaction of the mortgage debt just the same as if no partition had been made. It is contended that this decision is wrong, that the mortgagee has no charge on that portion of the property which was allotted on partition to the appellants, and that the effect of the partition was to transfer the lien to the property which the mortgagor obtained in substitution of that which he had mortgaged. In support of this contention the case of Byjnath Lall v. Ramoodeen Chowdhry L.R. 11 I.A. 106 : 21 W.R. 233 has been cited. That case differs from this in these respects, that the partition had there been made by the Collector under Regulation XIX of 1814, and that the mortgagee was seeking to enforce his remedy not against the property which had been actually mortgaged, but against the property which had been allotted to the mortgagor on partition in substitution of the mortgaged property. Their Lordships held not only that he had a right to do this, but that it was in the circumstances of the case his sole right, and that he could not successfully have sought to charge any other parcel of the estate in the hands of any of the former co-sharers.
3. The principle upon which that case was decided appears to us to apply equally to the present one. The mortgagee was not a party to the partition suit, but he was not a necessary party; he could not have enforced a partition nor could he have resisted a fair partition at the instance of any of the co-sharers. There is no allegation here that the partition was effected by fraud or collusion between the mortgagor and his co-sharers, and, as pointed out, if there had been fraud with the object of defrauding the mortgagee, the latter would have had a clear remedy against all who were parties to it. If, then, the partition is not challenged on the ground of fraud, the case stands thus:
What was mortgaged was joint undivided property in which the appellants had a 3-anna odd-gunda share; their co-sharers, the mortgagors, could undoubtedly pledge their own undivided shares,--at least it is no part of the appellants' case that they could not do so, but they could not by such mortgage affect the interest of the other co-sharers. The mortgage was subject to the right of those sharers to enforce a partition and, as their Lordships held in the case referred to, thereby to convert what was an undivided share of the whole into a defined portion, held in severalty. In the absence, therefore, of any fraud in effecting the partition plaintiff has no right to proceed against that portion of the undivided mortgaged property which on partition was allotted to the appellants, but he can proceed against that portion of the undivided property which was allotted to the mortgagor-defendants in substitution of their undivided share in the portion mortgaged. We must set aside the decrees of the lower Courts directing the sale of the mortgaged property, with the exception of the 3-anna odd-gunda share belonging to the appellants, and remand the case in order that it may be determined exactly what portion of the mortgaged property was on partition allotted to the appellants. Against that portion the plaintiffs can have no charge. They will of course be at liberty to bring to sale the share of the mortgagor-defendants in the portion which was left undivided, as well as any property which has been allotted to the latter in substitution of what was mortgaged, and this is a point which the Court will also have to determine, if it can do so. The parties will be at liberty to adduce further evidence on the matters referred to.
4. Another question raised in the appeal is that the plaintiffs are not entitled to the full amount of the interest decreed, and that this could not in any event be made a charge on the property. By the terms of the bond, dated the 5th Sraban 1285, interest was to run on the principal, Rs. 1,000, at one per cent. per mensem, and the whole amount was to be repaid in Assar 1288. In Bysack 1292 the mortgagor executed another bond in which, after referring to the execution of the first bond and the omission to pay the money due under it, he undertakes to pay off the aforesaid Rs. 1,000 with interest at the same rate in Chait 1294, and as security he hypothecates the same property which was mortgaged in the first bond. Neither bond contains any stipulation for the payment of interest after due date. The effect of the second bond was, we think, to make the interest run continuously up to Chait 1294 and to make it a charge on the property. The first Court allowed interest after due date at the rate of 12 per cent. per annum, considering that a reasonable rate. Even if any question had been raised in the Lower Appellate Court, and no question was raised, there is no ground on which we could hold on second appeal that the interest allowed by the first Court after due date was unreasonable. That interest cannot, however, he made a charge on the property : it is not a charge by the terms of the deed.
5. The appeal must be decreed and the case remanded as above directed. The appellants are entitled to their costs in this Court.