Das, J.:— Two questions have been raised in this appeal; first, whether the appellant who applied for a decree as against the respondent under Order XXXIV, rule 6, of the Code could maintain the application without a succession certificate, and, secondly, whether the document upon which the appellant relies operated merely as a charge, and, if so, whether the appellant was entitled to a decree under Order XXXIV, rule 6, of the Code.
The facts are these:—Raja Durga Prosad Singh of Jheria brought a suit for royalty in respect of certain coal lands. He obtained a decree and the properties were sold on the 17th September, 1915. The sale did not satisfy the claim of Raja Durga Prosad as against the respondent and there still remained a sum of Rs. 4,175 due to Raja Durga Prosad. Raja Durga Prosad, it appears, died after the sale of the properties and the present appellant has succeeded to the Raj by survivorship. On the 15th July, 1918, the appellant presented an application under Order XXXIV, rule-6, for recovery of the sum of Rs. 4,175 from the respondent. The learned Subordinate Judge being of opinion that the appellant could not maintain the application without a succession certificate, has dismissed the claim of the appellant.
I am of opinion that the decision of the learned Subordinate Judge on this point cannot be supported. Admittedly the appellant has succeeded to the Jheria Raj by right of survivorship; but it was urged on behalf of the appellant that the estate being impartible the appellant could only have taken the estate by inheritance although he was selected as such successor by the application of the rule of survivorship. In support of his argument Mr. S.M Mullick relied upon the decision of this Court in the case of Shyam Lal Singh… v. Bijay Narayan Kundu….. I will consider this case in a moment; but it is necessary to point out that the law on the subject has been discussed very fully and elaborately by the Judicial Committee in the recent, case of Baijnath Prashad Singh v. Tej Bali Singh. On an exhaustive review of all the decisions, starting with what is known as the Shivagunga case, their Lordships came to the conclusion that the question of how to select the head of the family in a joint family is part of the general law in the course of their judgment, their Lordships said as follows: “That the custom of impartiality does not touch it,” that is to say, touch the question of how to select the head of the family in a joint family, “is shown by the long list of authorities above cited, and there is, in their Lordships' view, no necessary logical deduction Prom the decisions in the Sartaj Kuari and the second Pittapur cases which forces them to an opposite conclusion”. Their Lordships quoted with approval the decision in the case of Naraganti Achammagru v. Nayanivaru where the proposition was laid down in the following words: “Where property is held in coparcenary by a joint Hindu family, there are ordinarily three rights vested in coparceners—the right of joint enjoyment, the right to call for partition, and the right to survivorship. Where impartible property is the subject of such ownership, the right of joint enjoyment, and the right of partition as the right of an undivided coparcener, are from the nature of the property incapable of existence. But there being nothing in the nature of the property inconsistent with the right of survivorship, it may be presumed that right remains Reviewing all the decisions of the Judicial Committee up to Sartaj Kuari's case, their Lordships laid down three broad propositions:—
“1. The fact that a raj is impartible does not make it separate or self-acquired property.
2. A raj, though impartible, may in fact be self-acquired or it may be family property of a joint undivided family.
3. If it is the latter, succession will be regulated according to the rule which obtains in an undivided joint family, so far as the selection of the person entitled to succeed is concerned, i.e, the person will be designated by survivorship, although then, according to the custom of impartiality, he will hold the raj without the others sharing it”.
Their Lordships then discussed the case of Sartaj Kuari v. Deoraj Knari and said that what was actually decided in Sartaj Kuari's case was that in an impartible raj there was no restriction on the power of alienation by the member of the family who was on the gaddi and was in possession, in respect that there was no such right of co-ownership in the other members as to give them a title to prevent such alienation. Their Lordships reviewed the cases subsequent to Sartaj Kvari's case and came to the conclusion that the rules laid down in the earlier cases on the question of succession have not been touched by Sartaj Kuari's case. They thought that the key-note of the position was what was laid down in the Tipperah case, viz., “when a custom is found to exist, it supersedes the general law, which, however, still regulates all beyond the custom.” Basing their decision on the passage which has just been cited, they came to the conclusion that the selection of the person entitled to succeed is governed by the general law of the land but that when the selection is made he holds the raj by virtue of the custom which prevents the others sharing it.
In my opinion the latest decision of the Judicial Committee completely negatives the arguments which have been advanced before us. But it was urged that we are conclusively bound by the decision of the Full Bench of this Court in the case of Shyam Lal Singh… v. Bijay Narayan Kundu….. In that case the late Chief Justice of this Court, with the concurrence of Chapman and Roe J.J, came to the conclusion that there was to right to succeed by survivorship in an impartible estate. Chamier, C.J, in delivering the leading judgment, said as follows: “all that their Lordships of the Privy Council have all along intended to lay down is that for the purposes of ascertaining the person enticed to succeed to an impartible estate you must have resort to the rule which would have governed the succession if the estate had remained partible”. In my opinion it is impossible to uphold this view having regard to the decision of the Judicial Committee in the case of Baijnath Prashad Singh. It is unnecessary to decide whether that case was rightly or wrongly decided inasmuch as the question of succession was not raised in that case and all that was involved was the question whether any portion of the property in the hands of a holder of an impartible raj could be regarded as assets which the creditor could seize in execution of a decree obtained against his predecessor in title. We are in this case not concerned with that question. If we were, we would be bound to follow the decision of the Judicial Committee which lays down in express terms that the question of selection of the successor is governed by the general law of the land and not by, custom; but that when the selection is made he holds the property by custom which prevents others sharing in it. In my opinion the appellant took the impartible estate by survivorship and it was not necessary for him to obtain a succession certificate as a condition for the maintainability of the application.
So far as the other question is concerned, the view of the learned Subordinate Judge was in favour of the appellant. But Mr. Susil Madhab Mullick on behalf of the respondent has urged before us that the appellant was not entitled to maintain an application under Order XXXIV, rule 6, inasmuch as the document upon which the appellant relies created a charge and not a mortgage within the meaning of the term as defined in section 58 of the Transfer of Property Act. The clause in the document upon which reliance is placed runs as follows:—
“This settled coal land, mines, coal raised by me machinaries, tools, bungalow, edifices coolie-shed erected by me as well as all other movables and immovables shall ever be regarded as a security for the payment of the rent and ceases due together with interest thereon due to you. I shall not be competent to transfer the said property by the sale, gift, or remove the same, so long as the rent, etc., due to you will remain unpaid. If it is done so, it shall not be accepted”.
Now the broad distinction between a mortgage and a charge is this: that whereas a charge only gives right to payment out of a particular fund or particular property without transferring that fund or property, a mortgage is in essence a transfer of an interest in specific immovable property. The line of division in England between a charge and a mortgage is a very clear one; but in this country the division is not so well-marked. It has been pointed out that there is very little difference, if any, between a charge and a simple mortgage as defined in section 58 of the Transfer of Property Act; and that, in a simple mortgage, the interest transferred is the right to have the property sold. If that be so, it becomes a question of some nicety to distinguish between a simple mortgage and a charge. In the case of Dalip Singh v. Bahadur Ram the late Chief Justice of this Court, then Mr. Justice Chamier, laid down the three essentials constituting a simple mortgage as follows: “In order that there may be a simple mortgage, there must be (a) a transfer of an interest in specific immovable property, (b) a personal undertaking by the mortgagor to pay the mortgage money, and (c) an agreement, express or implied, that in the event of the mortgagor failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold”. This case was followed by this Court in the case of Anand Ram Marwari v. Dhanpat Singh. Now in the present case the conditions (b) and (c) have been fulfilled; but there is no express transfer of an interest in the property. In the case already cited, Chamier J. said as follows: “In a simple mortgage the interest transferred is the right to have the property sold, and this need not necessarily be provided for in the deed in so many words; it may be inferred from the language used and where such an agreement can be inferred then the requirements of condition (a) are satisfied”. In my opinion the decision in Dalip Singh v. Bahadur Ram followed as it has been by this Court in Anand Ram Marwari v. Dhanpat Singh governs the present case. It may be pointed out that the word need in the Bengalee document is ‘bandhak’ which undoubtedly implies a mortgage. I am of opinion that the contention of Mr. S.M Mullick on this point must be overruled.
I would allow the appeal, set aside the order of the learned fudge;n the Court below and remand the case to that Court for decision as to the sum of money for which the plaintiff is entitled to a decree. The appellant is entitled to the costs of this appeal. The costs incurred in the Court below will abide the result and will be disposed of by the learned Subordinate? Judge.
Adami, J.:— I agree.
Order set aside.