1. Gurdas Rai defendant-respondent mortgaged his one-half share in Ahata of shop No. 36 situated in the area and abadi of Martin Ganj Mandi, Moga, measuring 4 marlas and 6 Sarsahis. built of pukhta masonry consisting of a kotha, verandah kitchen, bathroom, meani pukhta staircase, baithak, dalan, and courtyard on the lower storey and a chaubara, kitchen and pukhta staircase on the second storey, by means of mortgage-deed dated December 15, 1956, (Exhibit P-1), in favour of Balwant Rai, plaintiff-appellant, for a sum of Rs. 3,000/-. The mortgage was with possession. It is staged in the mortgage-deed that the possession had been delivered to the mortgagee on the spot. A portion of the mortgaged property was given over to Gurdas Rai as a tenant for Rs. 15/- P. M. The mortgage amount was not to carry any interest. The mortgagee could occupy the mortgaged premises himself or lease it out to some other person and enjoy the usufruct thereof Gurdas Rai mortgagor could redeem the mortgage at the time of any Nimani by paying the entire mortgage amount, Balwant Rai tried to eject Gurdas Rai from the premises by fling petitions under Section 13 of the East Punjab Urban Rent Restriction Act but was unsuccessful. He then filed a suit, out of which the present appeal has arisen, on August 2, 1960, for separate possession of one-half share of the double-storey house which had been mortgaged with him by Gurdas Rai. The defendants to the suit were Gurdas Rai and his brother Jagan Nath, who was the owner of the other half share of the house. The suit was contested by both the defendants and the following issues were framed on October 11, 1960:--
1. Is not the suit competent as framed?
2. Is not the suit properly valued for the purposes of court-fee and jurisdiction?
Both these issues were decided against the defendants by the learned trial Court by order dated October 12, 1960, and thereafter the trial of the suit proceeded on the following issues:--
1. Is the plaintiff entitled to separate possession of the property in question?
2. Has the property in question been partitioned between the defendants? If so, when and with what effect?
3. Is the property in question impartible and, if so, its effect?
4. Relief.
2. The learned trial Court decided issue No. 1 against the plaintiff-appellant and issues 2 and 3 against the defendant-respondents, with the result that the suit of the appellant was dismissed on December 2, 1960. Against that decree, the present appeal has been filed.
3. The learned counsel for the appellant has argued that under Section 44 of the Transfer of Property Act, the appellant is entitled to enforce partition of the mortgaged property with the co-owner of the mortgagor. This section reads as under:--
'Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part-enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part-enjoyment of the house.'
4. Section 58 of the said Act defines a 'mortgage' as the transfer of an interest in specific inmmovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. It is thus evident that the appellant is a transferee of interest of the mortgagor in the joint property owned by him and his brother Jagan Nath and, in order to give effect to the transfer, it is necessary that the mortgagee should be permitted to enforce partition of the same as he is not in possession of the mortgaged share of Gurdas Rai. Both the defendants appeared as their own witnesses to support the plea that they had effected private partition of their joint house. Jagan Nath staged that the house in question was owned by him and Gurdas Rai defendant in equal shares and was obtained by them in family partition effected between them and their other brothers in 1954. In 1955 they constructed some rooms in this house on the upper storey and thereafter in that very year partitioned it between themselves. Jagan Nath got a room, a verandah, a courtyard and the Baithak on the ground floor. The dalan was kept joint and the remaining property fell to the share of Gurdas Rai. Jagan Nath rented out his portion in 1956 and since then he had been realising its rent. Gourds Rai is residing in his share and they again got effected a partition of the house in May, 1956, on those very lines. In cross-examination, he stated that the partition was never reduced into writing and no other person was present at the time of partition. Gurdas Rai appeared as D.W. 2 and stated that he and Jagan Nath got the house in suit in partition with the other brothers and thereafter built a chaubara, staircase and kitchen. Then they partitioned the house. He got a chaubara, a kitchen, a small room and the room underneath that small room. The remaining portion went to Jagan Nath and that they have been in possession of their respective shares since then. Jagan Nath had given his portion on rent and, at the time of the mortgage-deed, he was in its possession according to partition and showed it to the plaintiff-appellant. Evidently, the statements with regard to partition made by the two defendants are wholly false. If the parties had taken possession, as alleged, before the mortgage was effected, Gurdas Rai would have mentioned his portion which was in his possession as the mortgaged property and not one-half share of the entire house consisting of the lower storey as well as the upper storey. Not only the two storeys are mentioned, but the rooms and accommodation of both the storeys are also mentioned. The learned trial Court was, therefore, right in concluding that there had been no partition of the house between the brothers. The finding on issue No. 2 is, therefore, affirmed. The finding on issue No. 3 is also affirmed as both the defendants themselves alleged that they had partitioned the house privately. They cannot, therefore, be allowed to say that the house is impartible.
5. In view of the decision on issue No. 2 that the house had not been partitioned between the defendants, it follows that in order to enjoy his security the appellant is entitled to have separate possession by partition of one-half share of his mortgagor, to which he is entitled under Section 44 of the Transfer of Property Act referred to above. It is not a joint family house and, therefore, proviso to Section 44 ibid does not apply. It was held by a Division Bench of the Bombay High Court in Moti Meghaji Marwadi v. Amarchand Rajaram, AIR 1933 Bom 121, (as per the head-note) as under:--
'Under the Hindu law, as administered in the Bombay Presidency, a mortgagee from a coparcener in a joint Hindu family, who is entitled to claim possession of the mortgaged property under the mortgage-deed, can maintain a suit for partition of the joint family property.'
In that case, the main issue for determination was whether the suit for partition was maintainable. It was contended that the plaintiff being the mortgagee from a coparcener in a joint Hindu family who was not in possession of the property at the date of the mortgage, was not entitled to maintain the suit for partition and possession. This issue was decided in favour of the plaintiff by the High Court with the above observations which were based on two rulings in which lessees from coparceners were held competent to maintain suits for partition and possession. The rulings relied upon are Ramasami Chetti v. Alagirisami Chetti, (1903) ILR 26 Mad 361 and Muhammad Jafar Khan v. Mazhar-ul-Hasan, (1906) 3 All LJ 474. A learned Single Judge of the Madras High Court in Hariharayyar v. Ahammadunni, AIR 1940 Mad 491, held:--
'Under section 44 of the Transfer of Property Act, not only a transferee of a share but also of any interest therein can sue for partition, but the section imposes a limitation, namely, it must be necessary to give effect to the transfer.' The two rulings referred to above were relied upon.
6. In order to effectuate a usufructuary mortgage it is necessary that the mortgagee should obtain possession of the mortgaged property in order to realise the amount of loan advanced and the interest accrued thereon. Although in the mortgage-deed it is mentioned that the possession of the mortgaged property was given to Balwant Rai, mortgagee, yet no possession in fact was given. In his written statement dated March 5, 1959, fled by Gurdas Rai respondent, in the Court of the Rent Controller, Moga, (Exhibit P-2), he stated:--
'I have mortgaged one-half share with the petitioner for Rs. 3,000/-. At that time, the petitioner prepared a writing of chakota at Rs. 15/- per mensem against him in lieu of interest at the rate of Rs.-/8/- per cent. Per mensem. Otherwise, neither handing over of possession was envisaged, nor the creation of any tenancy, only the payment and receipt of interest was given this written form.'
7. It is thus evident that the possession of the mortgaged property was not given to the plaintiff-appellant. He is, therefore, entitled to separate possession by partition of the mortgaged house, so that he may enjoy the security for the mortgage to the best advantage. The decision of the learned trial Court on issue No. 1 is against the provisions of Section 44 of the Transfer of Property Act and is reversed.
8. For the reasons given above, this appeal is accepted and, setting aside the decree passed by the learned trial Court, the case is remitted for separating the portion of the house, which is the mortgaged security, between the appellant and Jagan Nath respondent, in accordance with the provisions of the Partition Act or any other law applicable. The appellant is entitled to his costs of this appeal to be paid by the respondents.
9. Appeal allowed.