The plaintiff's (appellant's) suit is based upon two mortgages executed to his father by the defendant and his three paternal cousins for a sum of Rs. 475. Subsequent to the date of the said instruments, there was a suit for partition between the defendant and his cousins, whereby it was decreed that the defendant was to take a fourth share of the joint estate and copay a fourth share of the debt due by the members of the family inclusive of the plaint mentioned mortgage debt. Though the plaintiff was not impleaded in the partition suit, he afterwards agreed with the mortagagors other than the defendant to release them from their liabilities under the mortgages in consideration of their having executed to him mortgages for the amounts payable by them, respectively, upon portions of the property which fell to their share. The defendant not having entered into any such arrangement with the plaintiff, nor discharged his share of the mortgage-debt, the plaintiff sues for the same and for an order for the sale of the portion of the mortgaged lands in the hands of the defendant.
The District Munsif gave a decree for money only but, disallowed the prayer for sale. Both parties appealed against the decree, the plaintiff in so far as it refused an order for sale and the defendant in so far as it ordered payment of money. On the appeals coming before the Subordinate Judge, he reversed the decree and dismissed the suit on the ground that it was not maintainable as it was only for a part of the mortgage debt and for sale of a part of the mortgaged property. This view however is clearly wrong.
Now, there can be no doubt that, had the defendant and his cousins made a partition by mutual consent and agreed with one another that each was to be responsible only for his share and that the portion of the mortgaged property allotted to each should bear that much only of the debt, it would be competent to the mortgagee, should he be so minded, to accept this arrangement as between the mortgagors, validly release each mortgagor on payment of his quota of the debt, and proceed against such of them as might make default for what is due by them according to the arrangement. If authority is necessary for so clear a proposition, reference may be made to the case of Mahadaji Hari Limaye v. Ganpatshet Dhondshet(1), see also Hari Kissen Bhagat v. Veliat Hossein(2). And it can make no difference that the partition is effected, not by mutual consent, but by decree of Court.
New by the partition, the defendant's anterior joint right to the whole of the mortgaged property having as between him and his co-parceners been displaced by an exclusive right to a part thereof, he could have no manner of concern in those portions of the mortgaged property which have been allotted to the other co-parceners so long as he is not called upon to pay more than his proper share of the debt as settled by the partition. The rule that an arrangement between one or more of several mortgagors and the mortgagee whereby the former are released from their liability under the mortgage in consequence of payment of a portion of the debt or otherwise, does not affect mortgagors not parties to the arrangement if their right as against the co-mortgagors is likely in any way to be prejudiced thereby, has no application to the present case, for the obvious reason that the demand here is only for the defendant's just share of the debt and no more. The decree of the Subordinate Judge is therefore get aside and the appeal remanded for disposal according to law; costs will abide and follow the result.