1. In this case it appears that four brothers mortgaged their share in certain properties to one Rai N. N. Sahu Bahadur. On the 4th day of December 1911 they and a fifth brother, a minor represented by his duly appointed guardian the eldest of the four adult brothers, executed a second mortgage of the same properties in favour of one Nripendra Nath Sahu. The four adult brothers next executed a third mortgage in favour of one Gopi Nath Mondal.
2. On the 10th of May 1912 the four adult brothers were adjudicated insolvent and on the 27th of June of that year a Receiver of their properties was appointed.
3. It thus became necessary to effect a partition between the five brothers, and by the decree in the partition suit dated 4th January 1913 the three properties now in question were allotted to the four adult brothers. Next followed a sale by the Receiver at the instance of the 1st mortgagee on the 22nd and 23rd April 1913. The properties were sold free of incumbrances and, with a certain amount (Rs. 2,002) due or realised from the minor brother as owelty money, fetched a sum of Rs. 25,320. Out of this sum Rs. 7,846 odd was paid to the 1st mortgagee, and the only question argued in this appeal is whether the 2nd mortgagee Nripendra is entitled to priority over the 3rd mortgagee Gopi in respect of the whole of the balance Rs. 17,473 odd or in respect only of 4/5ths of the same.
4. It is argued that by reason of the partition and by the sale of these properties as the sole property of the four insolvent adult brothers, Nripendra the 2nd mortgagee has released or exonerated the share of the fifth brother, and to the extent of the 1/5th which that share was liable to contribute to the debt secured by Nripendra's mortgage has, therefore, lost priority over the 3rd mortgagee.
5. We are unable to accede to this contention.
6. It does not appear that the partition or the sale proceedings were at the instance of the 2nd mortgagee. It is exceedingly doubtful whether any liability under the 2nd mortgage, executed ostensibly on his behalf by the eldest brother, could be fastened upon the minor; In any case it is not disputed that the four adult brothers are jointly and severally liable to pay the whole debt due under that mortgage, and it cannot, we think, be said that by demanding payment' out of the surplus sale-proceeds now in the hands of the Receiver the 2nd mortgagee has done anything which can be appropriately described as a relinquish. merit or release of any portion of the property mortgaged to him.
7. In this view this appeal fails, but we should further point out that the whole question raised appears to be academic.
8. Out of the balance Rs. 17,473 odd, payment of a sum of Rs. 13,221 odd has been made or directed in favour of the 2nd mortgagee in full satisfaction of the mortgage debt. This is less than 4/5ths of the balance.
9. The appeal is dismissed with costs. We assess the hearing fee at five gold mohurs.
10. The appeal having been dismissed, the connected Rule No. 647 of 1917 is discharged.
11. Out of the hearing fee assessed one gold mohur will be given to the Receiver and four gold mohurs to the respondent Nirpendra Nath Sahu, who will also have the costs incurred by him in the preparation of the paper book. Let the record be sent down at once.