AI Structured Summary
Not yet generated for this judgment
Judgment
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
Its. 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 to pay 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 mortgagors other than the defendant to release them
from their liabilities under the mortgage 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 these arrangements as between the mortgagors and validly release each
mortgagor on payment of his quota of the debt, and proceed against such of them as may make default in payment of their share of the debt for
what is due in pursuance of the arrangement. If authority is necessary for so clear a proposition, reference may be made to the case of Mahudaji
Hari Limaye v. Ganapatshet Dhondnhet ILR 15 . 257 see also Hari Kissen Bhagat v. Veliat Hossein ILR C. 755 And it can make no difference
that the partition is effected not by mutual consent but by decree of Court. Now by the partition, the defendant''s entire or joint right to the whole
of the mortgaged property having as between him and his coparceners 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 coparceners 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, set aside and the appeal remanded for disposal according to law. Costs will abide and follow
the result.