These applications are brought by way of appeal against the order of the learned Master in a matter arising out of a partition in a family consisting of two branches descending from two brothers, Sadasiva Chetty and Gangadhara Chetty. Gangadhara had a son Thayumana Chetty who has since died, and his branch is represented by his widow Visalakshi. Sadasiva has left two sons. On the 24th March, 1931, Visalakshi on behalf of her minor son filed a pauper petition claiming partition. This was registered as a suit in September of the same year and resulted in a final decree on 14th September, 1934. On 22nd July, 1931, that is to say, approximately four months after the pauper petition was filed, Sadasiva mortgaged two items of property to the present appellant. The mortgage was executed by Sadasiva for himself and as manager of the joint family and as guardian of his minor nephew, the son of Gangadhara; and it was also executed by his own adult son. This mortgage is not referred to in the partition suit, and the appellant was not a party to that suit. On 4th August, 1934, the appellant brought a suit on his mortgage impleading the two sons of Sadasiva, who was by this time dead, and also the minor son of Gangadhara and he claimed a decree against the hypotheca on the ground that his mortgage was binding on the family. Alternatively, he asked for substituted security in the shape of whatever was allotted to the share of Sadasiva's branch. Eventually he was given a decree for substituted security. Meanwhile the partition suit had ripened into a final decree, as a result of which both the items mortgaged to the appellant were allotted to Gangadhara's branch: and, besides the properties actually allotted to them, Gangadhara's branch was given a right to a payment of Rs. 2228-12-2 by way of owelty to equalise the shares. The original decree made this payable out of the assets of the share of the 1st defendant (Sadasiva), but he having died, it was amended so that Cl. 11 runs:
“Defendants 2 and 3 (i.e, Sadasiva's sons) do from and out of the assets of the 1st defendant, deceased (i.e, Sadasiva) and out of their share of the family property pay,”
the amount decreed to Gangadhara's son. Subsequently the appellant proceeded to execute his mortgage decree against the properties allotted to Sadasiva's branch. There were three properties which were sold in execution: (1) No. 109, Egmore High Road, which was sold subject to a mortgage for Rs. 5560, recognised in the partition suit as binding on the family. In the sale the equity of redemption was purchased by the appellant for Rs. 1550, which was set off against his mortgage decree, and he has himself subsequently redeemed the mortgage for Rs. 5560 which binds the whole family. (2) Lands at Arasur which were purchased by the appellant for Rs. 600, this amount being set off against the appellant's mortgage decree. (3) Property at Ponneri, subject to a mortgage for Rs. 500 in favour of a third party. The equity of redemption in this item was purchased by a stranger for Rs. 1000 which amount is in Court deposit. The only additional fact to be noted is that the amount due on the appellant's mortgage decree at the time of its execution was Rs. 3563.
The two applications against which these appeals are preferred were (1) an application by the appellant to the Master for the payment of the Court deposit of Rs. 1000, the proceeds of the sale of the third item referred to above, towards the discharge of the appellant's decree; (2) An application by Gangadhara's widow, firstly for the payment of the same sum of Rs. 1000 towards the amount due by way of owelty, secondly for a direction to the appellant to pay back the amount of Rs. 1550 credited to his mortgage decree, as a result of the sale of the first item. There is no prayer for the payment of the amount of Rs. 600 credited as a result of the sale of the second item. The questions which arise out of these appeals are (1) What is the extent of any charge which the appellant may have against Sadasiva's share? (2) Was any charge created by the provision in Cl. 11 of the partition decree for the payment of owelty? (3) If so, can it be enforced by a mere direction to the appellant to pay back that which he has received as a result of the sale of item 1? or should it not be enforced by a regular application for execution? (4) If both the appellant and Visalakshi are entitled to a charge over the properties, which has the priority?
I will deal first with the contention that, whatever be the merits of the respondent's applications, the form in which they have been made is wrong. As I understand it, the appellant's contention is that, if the respondent were to file an execution petition and bring the properties to sale subject to the prior encumbrance, the appellant being in the position of both prior encumbrancer and of puisne encumbrancer, the result might well be that the amount due on the prior encumbrance would swallow up the whole of the proceeds of the first item; and that the appellant has a right to demand that this procedure be followed. It seems to me that this contention, which does not appear to have been advanced before the Master, is very technical. I cannot see why when these properties have been brought to sale by the appellant under his mortgage decree the respondent should not have a right of recourse against the proceeds of that sale rather than against the lands in the hands of a stranger. The appellant had the right to execute his decree, but that right was subject to any prior or more powerful rights residing in others. Since the right declared in favour of the respondent was the right to receive a cash sum out of the proceeds of these properties, I see no reason why the respondent should be made to sell them over again instead of directing his claim against the cash which has in fact resulted from the sale of those properties.
Turning to the question of the existence or non-existence of a charge in favour of the respondent, the appellant relies on a very old case reported in Bheri Dorayya v. Maddipatu Ramayya(1) in which it was held that an indefinite order for the satisfaction of a decree out of the assets of a deceased person creates no charge on the property in the hands of the purchaser provided that the purchase was not fraudulent. This case has been discussed and distinguished in a case reported in Manickam Pillai v. Audinarayana Pillai(2), wherein it was held that when the decree makes ‘the properties’ liable to satisfy a debt and it appears from a construction of it that the word ‘properties’ does not refer to the properties of the party generally but to certain specific properties, the identity of which is clear, a charge is created. That ruling surely would govern the facts of the present case where the decree orders the payment “out of their share of the family property” and the share is itself specified in the schedule attached to the decree. Another case which has been referred to is the Full Bench ruling in Shahebzada Mahomed Kazim Shah v. Hills(3) wherein it was held that co-sharers who have been given a specific charge over an amount awarded by way of owelty are entitled to a prior charge over a particular property as against the mortgagees of an undivided share of one of the coparceners. In that case the present difficulty does not really arise at all, for the whole question here is whether a charge is created in favour of the person who has the right to owelty, whereas in that ruling the existence of a charge is perfectly clear.
The question really seems to reduce itself to this. What is the right which the appellant gets by reason of his decree for a sum of money against a substituted security consisting of the share of his mortgagor? Is it a right against the whole of the properties allotted at partition to that mortgagor regardless of any incident of the partition which is in derogation of that share, or is it a right to proceed against the net share of his mortgagor, after making allowance for any deductions which under the partition decree have to be met from it? Another way of putting it is this:—Is the share of the mortgagor the properties actually allotted to him coupled with an obligation to pay a certain amount in cash, or is it certain properties less an extent the value of which would be equivalent to the cash amount decreed by way of equalisation? It seems to me that in equity the latter view is the only possible view. If we assume that the mortgagee from a coparcener who has mortgaged properties not allotted to him in a partition has a right to proceed against the whole of the specific properties allotted to the mortgagor regardless of any liability by way of equalisation of shares, the result surely is to enlarge the security of the mortgagee beyond that to which he is in equity entitled. The Courts have recognised in such circumstances the right of the mortgagee to fasten his mortgage on the properties alloted to the mortgagor. But there is no reason, merely because the difficulties of division make it desirable to give to the mortgagor more than his proper share while requiring him to make a cash payment to his coparceners, to allow to the mortgagee the benefit of that excess allotment. The proper security to which the mortgagee is entitled should not be more than the actual share of the mortgagor, which can only be calculated after deducting properties of a value equivalent to the amount which he has to pay in order to equalise the shares.
In the result, therefore, I hold that the learned Master is right in directing the payment to the respondent of the amounts claimed and I dismiss the appeals with costs.
Appeals dismissed.
N.R.R