The main legal point established in the judgment is the application of the equitable principle of 'substituted security' in cases where a cosharer has mortgaged one property but is allotted a different property at partition. The court's decision was influenced by the interpretation of this principle as established in the leading case of Byjnath Lall v. Ramodeen Chowdry 1 I.A. 106 and subsequent cases.

1. A nice question arises in this second appeal as to the manner of working out the equitable principle of 'substituted security' when a portion only of the undivided share of a cosharer has been mortgaged but a different property is allotted to him in partition between the cosharers.

2. The facts are not in dispute here. The plaintiff and defendants 1 to 3 were cosharers of the properties described in plaint schedules A & B and others. Defendants 1 & 2 mortgaged their shares in the plaint A schedule property on February 1, 1947, to the plaintiff for a sum of Rs. 3000/-. At the time of that mortgage, a suit for partition of the common properties of the plaintiff and defendants 1 to 3 was pending. By the final decree in that suit passed on September 19, 1947, the plaint A schedule property was allotted to the 3rd defendant; items 1 to 3 of the plaint schedule B were allotted to the 1st defendant; and a sum of Rs. 2625 odd was awarded to the 2nd defendant, to be collected from the plaintiff, the 1st defendant and the 3rd defendant in the sums of Rs. 366.29 p., Rs. 647.86 p. & Rs. 1610.86 p. respectively. The present suit is to enforce the mortgage after setting off the sum payable by the plaintiff to the 2nd defendant (viz., Rs. 366.29 p., therefrom. The Munsiff decreed the claim against items 1 to 3 of plaint B schedule, giving a charge for Rs. 1610.86 p. on the plaint A schedule property also. The 1st defendant's appeal before the Subordinate Judge, Cochin, did not succeed. He has come up in second appeal; and the question here is whether the principle of substituted security entitles the plaintiff to a charge on all the properties allotted to the 1st defendant in partition even though the pre-partition mortgage was only of his undivided share in one of the common properties. The Courts below have held him entitled to a charge on all the properties allotted in partition; and its correctness is challenged here.

3. The principle of "substituted security" is not governed by any statute but has been followed as an equitable principle throughout India when a cosharer has mortgaged one property but is not given that one but another at partition between himself and the other cosharers. The leading case on the subject is Byjnath Lall v. Ramodeen Chowdry 1 I.A. 106 where the Judicial Committee of the Privy Council observed:

"Gopal Narain, the mortgagor, was, on the 24th of September, 1860, when he executed the deed of conditional sale, the undisputed owner of an 8-anna undivided share in an estate consisting of three uslee mouzahs, called Gunniporebeja, Pemburinda, and Tajpore Ruttanpore... he executed a conditional sale of 'the whole and entire 8 annas out of the whole 16 annas severally of mouzahs Gunniporebeja and Pemburinda', as a security for the sum of 26,050 company's rupees, expressly excepting from the operation of the deed the 8 annas of Tajpore Ruttunpore...

Before the execution of this mortgage, and as early as September, 1858, some of the other sharers in the estate had commenced proceedings to effect a butwara, or partition of the whole estate....The partition was finally made....Its effect as regards Gopal Narain Singh was to allot to him, to be held in severalty, and in lieu of his undivided moiety of the whole estate, the whole of Mouzah Pemburinda, the whole of the principal mouzah of Tajpore Ruttunpore

Now, what was the subject of this mortgage? It was an undivided moiety in two out of three villages forming a joint and undivided estate.... It is therefore clear that the mortgagor had power to pledge his own undivided share in these villages; but it is also clear that he could not, by so doing, affect the interest of the other sharers in them, and that the persons who took the security took it subject to the right of those sharers to enforce a partition, and thereby to convert what was an undivided share of the whole into a defined portion held in severalty....

Let it be assumed that such a partition has been