Judgement

Appeal (No. 79 of 1938) from a decree of the High Court (January 28, 1937) which modified a final decree of the Second Court of the Subordinate Judge, 24 Parganas (May 12, 1934), passed in a partition suit.

The appellants were mortgagees under three mortgages of a one-eighth share in some properties which were the subject of the partition suit, and they bought the mortgaged pro perties in execution of a mortgage decree which had been passed in their favour on the basis of their mortgages. The property which was the subject of the partition suit had belonged to one Kunja Behari Mullick, a Hindu governed by the Dayabhaga School of Hindu law. He died on October 6, 1899, and by his will, after giving certain pecuniary legacies, he left the rest and residue of his estate, including the property subject to the partition suit, in equal shares to his three sons and a grandson by a predeceased son.

All the sons of Kunja Behari Mullick died before the institution of the partition suit. His fourth son was Pulin Behari, who died intestate on December 28, 1919, leaving two sons him surviving. His one-fourth share in the estate left by his father devolved in equal shares on his two sons, each being entitled to a one-eighth share of the property bequeathed to his sons and grandson by Kunja Behari. One of Pulin Beharis sons was Bhuban Mohan Mullick, and on December 6, 1923, and January 28 and May 31, 1924, he executed three English mortgages for the sums of Rs.1,50,000, Rs.65,000 and Rs.20,000 respectively in favour of the first appellant and of the father and predecessor in interest of the remaining four appellants.

In the mortgages Bhuban Mohan mortgaged his one-eighth share in some of the joint immovable property which he had inherited from his father. Bhuban Mohan died intestate on April 24, 1925, leaving surviving him a son, Biswanath, a widow, and an unmarried daughter. On June 7, 1926, the appellants filed on the original side of the High Court at Calcutta a mortgage suit (No. 1472 of 1926) on the basis of the above-mentioned mortgages against Biswanath, who had inherited the property mortgaged by his father. The appellants obtained a final mortgage decree on January 21, 1929, and in execution of their decree they purchased the property mortgaged to them at an execution sale on January 11, 1930.

After the date of the final mortgage decree, Murari Mohan, the only then surviving son of Kunja Beharis eldest son, instituted on August 30, 1929, the suit for partition out of which the present appeal arose, in the Second Court of the Subordinate Judge, 24 Parganas. Amongst the defendants to the suit were Biswanath and his mother, and unmarried sister. On October 1, 1929, the Subordinate Judge passed a preliminary decree that the share of Biswanath was one-eighth subject to the charge of maintenance and other expenses of his mother and marriage expenses and maintenance of his "unmarried sister."

The appellants had on December 12, 1929, and on January 14, 1930 (that was, both before and after their purchase on January 11, 1930, under their mortgage decree), applied to the Subordinate Judge praying to be added as parties to the partition suit. On January 29, 1930, the Subordinate Judge passed an order to the effect that at that stage it was not necessary to make the appellants parties to the suit, but that the commissioners appointed to give effect to the preliminary decree were to allow the appellants to be present at the commission on behalf of their vendor, and on April 12, 1930, he passed a further order to that effect.

An appeal from that order of April 12, 1930, to the High Court (Mukerji and Mitter JJ.) was allowed on July 14, 1930, and the appellants were directed to be added as parties to the partition proceedings as from April 12, 1930; the judgment concluded "It goes without saying that all the proceedings taken before the aforesaid date will be binding upon them just as much as they would be binding upon their predecessor-i