1. This appeal arises out of a suit on two mortgage-bonds whereby the plaintiff seeks to realise a sum of Rs. 15,609-15, as the amount due to him on those bonds in respect of principal and interest. He has joined as defendants to this suit his mortgagor defendant No. 1, and a co-sharer of the mortgagor defendant No. 2, whom ho describes as pro forma defendant.
2. No contest arises as to the right of the plaintiff to enforce his security. The only question is, against what is it to be enforced: and this dispute arises out of a fact that the mortgage was of an undivided share, and that since the mortgage there has been a partition suit between defendant No. 1 and defendant No. 2, which has resulted in the allotment of certain portions of the joint estate to defendant No. 1 and defendant No. 2 in severalty so that the undividedshare that belonged to defendant No. 1 at the date of the mortgage is now represented by a share in severalty held by him as a result of the partition carried out under the decree of the Court. The plaintiff alleges that this partition was carried out to his prejudice and that the portion allotted to defendant No. 1 did not fairly represent his share in the joint property and on this ground he seeks to have his security realised as though there had been no partition. It has been decided and is now the settled law, under Byjnath's case 11 A. 106 : 21 W.R. 233, and the cases which have followed that decision, that a mortgagee of an undivided share, when there is a subsequent partition, ordinarily has, is his security after the partition, the separate share allotted to his mortgagor in place of the undivided share, and that is not disputed as being the principle applicable in this case. Further, it is the rule in this Court that a partition can be effected without making the mortgagee of a share a party, when the suit is brought by the mortgagor's co-sharer so that the mere fact that the mortgagee was not a party to the partition suit in no way invalidates the proceedings, according to the view that has been adopted in the Calcutta High Court. In these circumstances, the plaintiff by his plaint has alleged fraud and illegality as vitiating the partition and, what he alleges is that the mortgagor with the intention of putting obstacles to the recovery of the money taken by him from the mortgagor, caused a partition suit, No. 76 of 1902, to be instituted collusively by the pro forma defendant, and, by getting the partition of the property No. 1 of Schedule (ka) effected, fraudulently gob lands of much inferior quality and much less in quantity to be allotted to the share of the mortgagor, than what should have been allotted to him according to a fair and lawful division of the property. There is a further allegation that the mortgagor got the partition effected improperly and illegally in collusion with the pro forma defendant, the co sharer. These matters were traveised by the co-sharer defendant, and when the case came to trial, the following issues were formulated: (1) Whether the decree of the suit No. 76 of 1902 for the partition of the property No. 1 of the schedule of the plaint is fraudulent and is it binding on the plaintiff? Is plaintiff's mortgage now confined to the exclusive share of the defendant No. 1 after partition? (2) What is the extent of the share of the defendant No. 1 in respect of the property No. 41 of the schedule? Can the plaintiff get his mortgage lien declared beyond that share? On those issues, the learned Subordinate Judge of Rungpur determined that the decree was not fraudulent but was binding on the plaintiff and that the share of defendant No. 1 was one-third, and that of defendant No. 2 was two-thirds. A decree was passed in accordance with these findings. From the decree the plaintiff has appealed.
3. At the outset the learned pleader, who represented the plaintiff, proposed to argue before us that though he might not be able to make out a case of fraud, still the facts show that, there was negligence on the part of the mortgagors.
4. Now, without deciding that negligence on the mortgagor, if proved, would have been of any avail to him, it is manifest that the plaintiff cannot at this stage launch such a case. It is a case neither made in the pleadings, nor raised by the issues, and it would be not only highly inconvenient but distinctly unjust to the defendants to allow this case to be made on appeal, so that the case must be determined in accordance with the pleading and the issues must depend upon whether; or not fraud has been established. There, if no oral evidence of fraud. The learned Sub-ordinate Judge has pointed out that no other evidence was placed before the Court upon the issue of fraud than the proceedings of the partition suit No. 76 of 1902. He discusses those proceedings, and he has for very good reason shown that there is nothing in those proceedings that would justify an inference of fraud. I am in complete agreement with his treatment of this question. It is not Suggested before us that there is any other evidence. It may be possible that the proceedings in suit No. 76 of 1902 show indifference on the part of the defendant mortgagor. I am not going to say that that is so,--but I am satisfied that the Judge was right in his conclusion that fraud had not been established. Therefore, that ground of appeal fails.
5. The only other question raised in the grounds of appeal is as to the extent of the share but Mr. Chatterjee has properly said before us that he cannot contest the finding of the learned Judge on the second issue to which I have already referred.
6. The result, then, is that the decree of the lower Court must be confirmed with costs.