Judgement

Appeal (No. 102 of 1931) from a decree of the Court of the Judicial Commissioner, North-West Frontier Province (July 1, 1930), reversing a decree of the Subordinate Judge of Peshawar (November 22, 1929).

The appellant instituted a suit for a declaration that the share of defendant No. 1 (respondent No. 3) in certain mortgaged and attached properties was liable to be attached and sold in execution of the plaintiffs decree against that defendant, that the property was lawfully mortgaged with the plaintiff, and that defendants Nos. 2 and 3 (respondents Nos. 1 and 2) had no title to more than one-third share in the property.

The facts appear from the judgment of the Judicial Committee.

The main question in the appeal was as to the effect of a partition decree made in pursuance of an award in arbitration, the reference being made without the intervention of the Court, upon a mortgage of an undivided share in part of the partitioned property and upon an attachment of other parts thereof.

The Court of the Judicial Commissioner, reversing the trial judge, dismissed the appellants suit upon grounds which appear from the judgment of the Judicial Committee.

1932. May 31; June 2. Dunne K.C. and Narasimham (with them K. Shrinivas Rao) for the appellant. The partition did not affect the appellants right to enforce the mortgage according to its terms. There is no statutory provision depriving him of that right, and no decision of the Board applicable to the facts of the case. In Byjnath Loll v. Ramoodeen Chowdry (( 1874) L. R. 11. A, 106.) the partition was made under Ben. Reg. XIX. of 1814, and was already proceeding when the mortgage was executed. In the present case the partition was four years later than the mortgage, and was made in pursuance of a private arbitration to which the appellant was not a party. The trial judge rightly held that the arbitration was collusive. Further, in the case above referred to, the suit was to enforce a mortgage against property allotted to the mortgagor upon the partition, the observation that that was the only property against which the mortgage could be enforced was obiter. Neither did the partition affect the attachment. The partition, being made in pursuance of an arbitration without the intervention of the Court, operated as a " private transfer" within the meaning of s. 64 of the Code of Civil Procedure, 1908, and was therefore void as against the appellant.

De Gruyther K.C. and Parikh for the respondents Nos. 1 and 2 (respondent No. 3 did not appear). Since the judgment of the Board in 1874, a series of decisions in India have consistently upheld the principle that a mortgage of an undivided share of joint property takes the security subject to the right to partition, and that after a partition the mortgage can be enforced only against such property as is allotted to the mortgagor. Among the latest of these decisions are Bhup Singh v. Chedda Singh (( 1920) I. L. R. 42 A. 596, 606.) and Niranjan Mukherjee v. Soudamini Dassi. (( 1926) I. L. R. 53 C. 694. F. B.) The principle applies although the partition decree is made pursuant to an award in a private arbitration Amolak Ram v. Chandan Singh (( 1902) I. L. R. 24 A. 483.) ; Muthia Raja v. Appala Raja (( 1910) I. L. R. 34 M. 175.) ; Pullamma v. Pradosham. (( 1895) I. L. R. 18 M. 316.) Sect. 44 of the Transfer of Property Act, 1882, does not affect the inherent right to partition. The evidence did not show fraud or collusion in connection with the arbitration. A partition decree, though made in pursuance of an award in a private arbitration, does not operate as a " private transfer " within the meaning of s. 64 of the Code of Civil Procedure, 1908 Qurban Ali v. Ashraf Ali (( 1882) I. L. R. 4 A. 219.) ; Narayana Ayyar v. Biyari Bivi (( 1921) I. L. R. 45 M. 103.) ; Kasi Viswanatham Chettiar v. Kamaswami Nadar (( 1918) 35 Mad. L. J. 441.) ; see also Order xxi., r. 54. Great inconvenience would be caused if an attachment held up the right to par