The court established the validity of the mortgage executed during the pendency of a partition suit, upheld the principle of substituted security, and determined the priority of the mortgagee over the charge-holder based on the relevant provisions of the Transfer of Property Act.

1. This is an appeal by one of the defendants in a mortgage suit which has been decreed in toto by the Additional District Judge, Amraoti. The outline of the case is as follows :

During the pendency of the partition suit (Civil Suit No. 47 of 1934) filed by one Nathmal against his brother Satidas, the latter on 10th October 1927, mortgaged some fields out of the joint family property to secure a loan of Rs. 18,000 borrowed from one Dr. Patwardhan. On 21st January 1929 pending the aforesaid litigation one Liladhar obtained a consent decree in Civil Suit No. 40 of 1929 against Satidas for Rs. 10,404 which was charged on some specified fields. The partition suit terminated on 28th August 1930 by the actual division by metes and bounds effected by the Collector. As the result of this partition some fields which were comprised in mortgage as well as the charge fell to the share of Nathmal, and Satidas got other fields in substitution of them. On 4th August 1931, the mortgagee Patwardhan instituted the suit out of which this appeal arises for enforcing his mortgage dated 10th October 1927 and he impleaded in his suit the mortgagor Satidas and his judgment charge-holder, Liladhar. In his suit the mortgagee claimed in the alternative that some of the fields which had fallen at the partition to the share of his mortgagor Satidas in place of those which passed to his brother Nathmal should, on the principle of substituted security, be sold as if they had been comprised in the mortgage. Liladhar, the charge-holder, claimed priority in respect of these fields and contended that the mortgage did not affect them. The lower Court overruled this contention and passed a decree against Satidas and Liladhar. The latter has preferred this appeal.

2. Upon this appeal his contention is sought to be supported on the following grounds : (1) that the mortgage in suit having been executed during the pendency of the partition suit was null and void; (2) that the principle of substituted security comes into operation only when the mortgagor transfers an undivided share and not, as in this case, specific items of joint property and (3) that the mortgagee having become entitled to substituted security in 1930 subsequent to the charge created in 1929 in favour of Liladhar, the mortgagee's right is postponed to that of Liladhar.

3. The first contention must fail in view of the express terms of S. 52, T. P. Act, namely, that the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of another party thereto under any decree or order which may be made therein. The section does !not say that the transfer made by a party to a pending suit is null and void; it only says that the transfer will not affect the rights of any other party to it under any decree or order that will ultimately be passed in the suit. Reference is made to 18 Cal 164 Umes Chunder Sircar v. Zahur Fatima, 1891 18 ILR(PC) 164 Radhamadhub Holdar v. Monohur Mukerji, 1888 15 ILR(PC) 756 Dinonath Ghose v. Shama Bibi, 1901 28 ILR(Cal) 23 Hukm Singh v. Zauki Lal,1884 6 ILR(All) 506. All these cases lay down that if the transfer takes place pendente lite the transferee must take his interest subject to the incidents of the suit. None of the cited cases comes up to. what is contended for by the learned Counsel for the appellant.

4. The second ground is sought to be sustained on the authority of 1 IA 106 Byjnath Lall v. Ramoodeed Chowdry,1873 1 IndApp 106 (P C), 13 Lah 702 Mohammad Afzal Khan v. Abdul Rahman, 1932 AIR(PC) 235 Amar Singh v. Bhagwan Das, 1933 AIR(Lah) 771 Bhup Singh v. Chedda Singh, 1920 AIR(All) 84 Shahezada Mahomed Kazim Shah v. Robert Savi Hills,1908 35 ILR(Cal) 388 Niranjan Mukherjee v. Soudmini Dasi, 1926 AIR(Cal) 714. The principle of substituted security was enunciated by their Lordships of the Privy Council in. 1 I A 106 (5) in these terms :

It is therefore clear that the mortgagor had power to pledge his own und