The law has been explained in the case ‘Byjnath lall v. Ramodeen Chowdry (1874)’ and the decision was further affirmed by Indian courts in various cases.
Facts of the Case
In that case the partition was made by the Collector under Regulation XIX of 1814 (Bengal), and the mortgagee was seeking to enforce his remedy not against the properties mortgaged to him, but against the properties which had been allotted to the mortgagor in lieu of his undivided share; but the Board held that not only he had a right to do so, but that it was in the circumstances of the case his sole right, and that he could not successfully have sought to charge any other parcel of the estate in the hands of any of the former co-sharers.
Decision
their Lordships were of opinion that
- where one of two or more co-sharers mortgages his undivided share in some of the properties held jointly by them, the mortgagee takes the security subject to the right of the, other co-sharers to enforce a partition and
- thereby to convert what was an undivided share of the whole into a defined portion held in severalty.
- If the mortgage, therefore, is followed by a partition, and the mortgaged properties are allotted to the other co-sharers, they take those properties, in the absence of fraud, free from the mortgage, and the mortgagee can proceed only against the properties allotted to the mortgagor in substitution of his undivided share.
Reference
Byjnath Lall v. Ramoodeen Chowdry (1874) L.R. 1 I.A. 106.