Judgement Appeal (No. 79 of 1938) from a decree of the High Court (January 28, 1937) which modified a final decree of the Second Court of the Subordinate Judge, 24 Parganas (May 12, 1934), passed in a partition suit. The appellants were mortgagees under three mortgages of a one-eighth share in some properties which were the subject of the partition suit, and they bought the mortgaged pro perties in execution of a mortgage decree which had been passed in their favour on the basis of their mortgages. The property which was the subject of the partition suit had belonged to one Kunja Behari Mullick, a Hindu governed by the Dayabhaga School of Hindu law. He died on October 6, 1899, and by his will, after giving certain pecuniary legacies, he left the rest and residue of his estate, including the property subject to the partition suit, in equal shares to his three sons and a grandson by a predeceased son. All the sons of Kunja Behari Mullick died before the institution of the partition suit. His fourth son was Pulin Behari, who died intestate on December 28, 1919, leaving two sons him surviving. His one-fourth share in the estate left by his father devolved in equal shares on his two sons, each being entitled to a one-eighth share of the property bequeathed to his sons and grandson by Kunja Behari. One of Pulin Beharis sons was Bhuban Mohan Mullick, and on December 6, 1923, and January 28 and May 31, 1924, he executed three English mortgages for the sums of Rs.1,50,000, Rs.65,000 and Rs.20,000 respectively in favour of the first appellant and of the father and predecessor in interest of the remaining four appellants. In the mortgages Bhuban Mohan mortgaged his one-eighth share in some of the joint immovable property which he had inherited from his father. Bhuban Mohan died intestate on April 24, 1925, leaving surviving him a son, Biswanath, a widow, and an unmarried daughter. On June 7, 1926, the appellants filed on the original side of the High Court at Calcutta a mortgage suit (No. 1472 of 1926) on the basis of the above-mentioned mortgages against Biswanath, who had inherited the property mortgaged by his father. On June 7, 1926, the appellants filed on the original side of the High Court at Calcutta a mortgage suit (No. 1472 of 1926) on the basis of the above-mentioned mortgages against Biswanath, who had inherited the property mortgaged by his father. The appellants obtained a final mortgage decree on January 21, 1929, and in execution of their decree they purchased the property mortgaged to them at an execution sale on January 11, 1930. After the date of the final mortgage decree, Murari Mohan, the only then surviving son of Kunja Beharis eldest son, instituted on August 30, 1929, the suit for partition out of which the present appeal arose, in the Second Court of the Subordinate Judge, 24 Parganas. Amongst the defendants to the suit were Biswanath and his mother, and unmarried sister. On October 1, 1929, the Subordinate Judge passed a preliminary decree that the share of Biswanath was one-eighth subject to the charge of maintenance and other expenses of his mother and marriage expenses and maintenance of his "unmarried sister." The appellants had on December 12, 1929, and on January 14, 1930 (that was, both before and after their purchase on January 11, 1930, under their mortgage decree), applied to the Subordinate Judge praying to be added as parties to the partition suit. On January 29, 1930, the Subordinate Judge passed an order to the effect that at that stage it was not necessary to make the appellants parties to the suit, but that the commissioners appointed to give effect to the preliminary decree were to allow the appellants to be present at the commission on behalf of their vendor, and on April 12, 1930, he passed a further order to that effect. An appeal from that order of April 12, 1930, to the High Court (Mukerji and Mitter JJ.) was allowed on July 14, 1930, and the appellants were directed to be added as parties to the partition proceedings as from April 12, 1930; the judgment concluded "It goes without saying that all the proceedings taken before the aforesaid date will be binding upon them just as much as they would be binding upon their predecessor-in-interest." The commissioners having proceeded with the partition, reported on January 17, 1934, that there should be charges for maintenance, etc., in favour of the mother and daughter over the one-eighth share of the properties which had belonged to Bhuban Mohan and was allotted to the appellants. The appellants then filed a petition before the Subordinate Judge praying (inter alia) that the directions for the charges made in the commissioners report in favour of the mother and daughter over the properties allotted to the appellants should be deleted. The Subordinate Judge held that the obligation to maintain the mother and sister of Biswanath was a charge on property of the husband or father inherited by the son, but that such a charge could not have priority over the mortgage charge created by the husband or father in his lifetime. On May 12, 1934, a final decree for partition was passed which embodied that decision of the Subordinate Judge. From that final partition decree Biswanath, his mother and sister, appealed to the High Court (S. N. Guha and Bartley JJ.), who said that in their judgment, by virtue of the order of the High Court dated July 14, 1930, the preliminary partition decree passed on October 1, 1929, could not be allowed to be altered or modified in any way in the present partition proceedings, and that therefore the final partition decree of May 12, 1934, must be varied by expunging from it the provision that the properties allotted to the appellants (mortgagees) should not stand charged with the maintenance of the mother and sister of Biswanath. 1939. Oct. 10. L. P. E. Pugh K.C. and W. Wallach for the appellants. 1939. Oct. 10. L. P. E. Pugh K.C. and W. Wallach for the appellants. The High Court were in error in holding that by virtue of the order of the High Court of July 14, 1930, the preliminary decree in the suit for partition, passed on October 1, 1929, could not be allowed to be altered or modified in any way in the present proceedings for partition. The predecessor-in-interest of the appellants was their mortgagor, Bhuban Mohan, and not Biswanath; and the appellants as mortgagees of Bhuban Mohan could not be affected in law by any claim for maintenance of his widow and the maintenance and marriage expenses of his unmarried daughter. In any event, having regard to the facts of the case, the share of the property allotted to the appellants in the partition proceedings ought not to be subject to the charges claimed by the widow and daughter. The Hindu law on the subject is dealt with in ss. 569, 570 and 579 of Mullas Principles of Hindu Law. The judgment of the first Court should be restored. The respondents did not appear. Oct. 30. The judgment of their Lordships was delivered by SIR GEORGE RANKIN. By three English mortgages executed in 1923 and 1924 one Bhuban Mohan Mullick (a Hindu governed by the Dayabhaga) mortgaged to appellant No, 1 and the father of the other four appellants his one-eighth share in certain immovable property. The capital sums secured amounted to Rs.2,35,000. On April 24, 1925, he died intestate, leaving him surviving a widow, Sm. Annabati Dassi, a minorson, Biswanath, and an unmarried daughter, Sm. Parbati Dassi (also a married daughter who need not here be further mentioned). By the decree under appeal, which is dated January 28, 1937, it has been held by the High Court at Fort William in Bengal that the maintenance of the widow and unmarried daughter is a charge upon the interest of the mortgagees under the mortgages. Parbati Dassi (also a married daughter who need not here be further mentioned). By the decree under appeal, which is dated January 28, 1937, it has been held by the High Court at Fort William in Bengal that the maintenance of the widow and unmarried daughter is a charge upon the interest of the mortgagees under the mortgages. This conclusion is prima facie opposed to the rights of the parties; indeed, it does not in the end appear to have been doubted by the Courts in India that while the ladies would have a claim to a charge upon any property coming to Biswanath as heir to his father, the interest of the fathers mortgagees was not such property, and is not liable upon the death of the mortgagor to be burdened with the maintenance of his widow or daughter. In order to trace the steps by which a contrary result has been arrived at by the High Court it will clearly be important to bear in mind throughout that the appellants mortgages were all taken from Bhuban Mohan in his lifetime, and not from his son after his death. The appellants brought a suit upon their mortgages in the High Court on June 7, 1926, impleading Biswanath. They obtained a preliminary decree on January 12, 1928, and a final decree for sale on January 21, 1929. On January 11, 1930, they purchased the mortgaged property at the execution sale, and obtained a sale certificate on February 19, 1930, in respect thereof. On August 30, 1929—some seven months after final decree, and some five months before the execution sale—the partition suit, out of which the present appeal arises, was brought in the Court of the Subordinate Judge, 24 Parganas. The one-eighth share which Bhuban Mohan had mortgaged was his share in certain properties which had belonged to his grandfather, Kunja Behari Mullick. Kunja had died in 1899, leaving a will whereby, after giving certain pecuniary legacies, he directed that the residue of his estate should go in equal shares to his three sons and a grandson by a deceased son. His fourth son was Pulin Behari, who died intestate on December 28, 1919, leaving him surviving two sons, Bhuban Mohan and another. Kunja had died in 1899, leaving a will whereby, after giving certain pecuniary legacies, he directed that the residue of his estate should go in equal shares to his three sons and a grandson by a deceased son. His fourth son was Pulin Behari, who died intestate on December 28, 1919, leaving him surviving two sons, Bhuban Mohan and another. Hence Bhuban Mohan had a one-eighth share in a number of properties which had belonged to his grandfather, and by the mortgages of 1923 and 1924 he had incumbered his share in some (not all) of these properties. The partition suit was brought by Murari Mohan, a son of Kunjas eldest son. Biswanath was impleaded as defendant No. 6, Annabati, his mother, and Parbati, his sister, were defendants 13 and 15 respectively. The appellants were not made parties to the suit. By a written statement filed on behalf of Biswanath, Parbati and the widow, it was submitted that Biswanaths one-eighth share should be allotted to him subject to the claim of his mother and sister for maintenance. On October 1, 1929, a preliminary decree for partition was pronounced, declaring the share of Biswanath to be " one-eighth subject to the "charge for maintenance and other expenses of his mother, "defendant No. 13, and marriage expenses and maintenance "of his unmarried sister, defendant No. 15.” Neither in the pleadings nor in the decree was any mention made of the mortgages to the appellants, nor was any decision given with respect to the appellants rights. The direction to the commissioners of partition was a general direction to make the valuation and allotments of the properties " according "to the aforesaid shares,” though in the case of some of the shares other than Biswanaths the decree provided for the maintenance of females being charged not on all the property allotted to each particular share, but only on a sufficient part thereof. On December 12, 1929 (before the execution sale), and also on January 14, 1930 (after the sale but before confirmation), the appellants applied to the Subordinate Judge that they might be made parties to the partition suit. By orders dated January 29 and April 12, 1930, the Subordinate Judge refused their request on the ground that it was not necessary at that stage to make them parties; but he directed the commissioners of partition to hear the appellants submissions. By orders dated January 29 and April 12, 1930, the Subordinate Judge refused their request on the ground that it was not necessary at that stage to make them parties; but he directed the commissioners of partition to hear the appellants submissions. This order was challenged in the High Court, and on July 14, 1930, a Division Bench of the High Court set it aside, directing that the present appellants should be added as parties to the suit " as from 12th April, 1930, on "which date their application was rejected, the proceedings "taken before the said 12th April, 1930, being binding upon "them just as much as they would be binding upon their "predecessor in interest. The Subordinate Judge having amended the plaint on September 12, 1930, in accordance with this decision, the appellants (now defendants Nos. 17 to 21), on September 17, applied to him to set aside or amend the preliminary decree in so far as it declared charges upon the share of Biswanath in favour of his mother and sister. This application was, by order dated February 23, 1931, refused on the ground that by virtue of the High Courts decision " the decree that was passed on 1st October, " 1929, is as binding upon them as upon their predecessor in "interest, and it is clearly not open to them to challenge any-" thing that was done in relation to the proceedings in Court "prior to the 12th April last." The argument of the appellants pleader, " that it is not the defendant No. 6 who should really "be treated as their predecessor in interest,” was repelled on the ground that it was contrary to the language of the appellants previous petitions, and the appellants were reproached for seeking to evade the express terms of the High Courts judgment. On July 31, 1931, the appellants applied for separate allotment of their share to them, and this was granted (November 21, 1931) without discussing the question of the charges in favour of Biswanaths mother and sister. The commissioners of partition, on January 17, 1934, made their final report allotting certain properties to the appellants, but directing that these should remain charged as a security for the payment of the maintenance and other expenses of defendants 13 and 15. The commissioners of partition, on January 17, 1934, made their final report allotting certain properties to the appellants, but directing that these should remain charged as a security for the payment of the maintenance and other expenses of defendants 13 and 15. The appellants having objected to this direction, their objections were heard and were allowed by order dated May 8, 1934. This order was not passed by the same learned judge who had previously dealt with the case, but by his successor (Babu Kali Prasanna Bagchi). After pointing out that the claim of the ladies to have priority over the appellants was untenable in law by reason that the mortgages had been granted by Bhuban Mohan in his lifetime and not by Biswanath after his fathers death, the learned Subordinate Judge noticed that this question had not been argued or considered by the High Court, and concluded that no order had been passed in the matter. He did not think that the appellants were entitled to an order setting aside the preliminary decree, and he regarded their previous application to that effect as ill-advised and rightly rejected. " But," he said, " a partition "suit in which a preliminary decree has been passed is still "a pending suit, and the rights of the parties who are added "after the preliminary decree have to be adjusted at the time "of the final decree. The defendants Nos. 17 to 21 cannot ask "for setting aside the preliminary decree, but they can reasonably claim that at the time of the final decree they should "get an allotment as purchasers and their rights should be "adjusted." Accordingly, he ordered that the properties allotted to Biswanath, and those only, should stand charged with the maintenance of his mother and sister, and not the properties allotted to the appellants. A final decree for partition was passed on May 12, 1934, in accordance with this direction. From this final decree Biswanath, his mother and his sister, on June 28, 1935, appealed to the High Court, whose decree is dated January 28, 1937. A final decree for partition was passed on May 12, 1934, in accordance with this direction. From this final decree Biswanath, his mother and his sister, on June 28, 1935, appealed to the High Court, whose decree is dated January 28, 1937. The view taken by the learned judges was that " by virtue of the order of "this Court passed on 14th July, 1930, the preliminary decree "in the suit for partition passed on 1st October, 1929, would "not be allowed to be altered or modified in any way in the "present proceedings for partition." They agreed with the views expressed in the order dated February 23, 1931, by the learned Subordinate Judge (Babu D. L. Sen Gupta), who had dealt with the application of September 17, 1930, to set aside or modify the preliminary decree, and considered that the appellants were seeking to nullify the effect of a decision inter partes by the High Court. The final decree for partition as settled by the High Court is now before their Lordships on appeal, but the appeal appears to turn solely on the High Courts order of July 14, 1930—a reported decision (Jadunath Roy v. Murari Mohan Mullick (( 1930) 35 C. W. N. 296.)), which must necessarily have effect upon the procedure adopted in partition cases by the Courts of the Province and elsewhere. It is unfortunate that no appearance has been made by the respondents and no argument heard on their behalf with reference to that decision, but their Lordships cannot omit to examine it. A partition necessarily affects the interest of a mortgagee of an undivided share, since after the partition his security is upon the divided share or the separate allotment. For this reason some High Courts in India would appear to join such mortgagees as parties to the suit as a matter of course, and by some English authorities [cf. Daniell, Chancery Practice, 8th ed., vol. i., p. 198] the practice is considered to be that while a mortgagee upon the whole estate is not a necessary party, a mortgagee of one of the undivided portions would e a necessary party [cf. Swan v. Swan (( 1819) 8 Price, 518.), and Sinclair v. James ([ 1894] 3 Ch. 554)]. Daniell, Chancery Practice, 8th ed., vol. i., p. 198] the practice is considered to be that while a mortgagee upon the whole estate is not a necessary party, a mortgagee of one of the undivided portions would e a necessary party [cf. Swan v. Swan (( 1819) 8 Price, 518.), and Sinclair v. James ([ 1894] 3 Ch. 554)]. The practice in Bengal follows the lines laid down by Sir Arthur Wilson in 1880 in Mohindrobhoosun Biswas v. Sosheebhoosun Biswas (( 1880) I. L. R. 5 C. 88), where a person having a disputed claim to be a mortgagee from the plaintiff in a partition suit applied to be joined. In refusing the application Sir Arthur Wilson said (Ibid. 886.) " The question as between the plaintiff and the defendant is, who is entitled to the property "in dispute ? To determine that question, it is not necessary "that the mortgagees should appear; they will not be bound "by any finding come to in their absence. In case of a decree "for partition being made, the mortgagees should have leave "to come in and attend the partition proceedings." In 1894 Sale J., in Khetterpal Sritirutno v. Khelal Kristo Bhuttacharjee (( 1894) I. L. R. 21 C. 904,909.), stated the practice succinctly "A mortgagee is not a necessary party to a partition suit, but he "may, and frequently does, obtain leave to attend the "proceedings as a quasi-party." The mortgagee of an undivided share might be prejudiced if that share did not receive a proper allotment in severalty, and it is for the benefit of all other persons interested in the joint property that such a mortgagee should be bound by the allotment. Hence, it will in general meet the case if he is allowed to attend and be heard at that stage at which the making of a proper allotment is effected, just as in other types of case a person interested only in the result of a particular account may be allowed to attend at the taking of that account, especially if it be in the interests of others that he should not thereafter dispute the result. It is a fundamental condition of this practice in partition cases in Bengal that the extent of the share should not be in dispute; on that assumption an important advantage of the practice is that it lightens the partition suit by avoiding the necessity of deciding as to the existence and validity of the mortgages claimed over the undivided shares. So far as regards the application made and decided in the present case before the execution sale had been confirmed, it is not necessary to examine or criticize the order of the learned Subordinate Judge. He may have been right in applying the ordinary practice, and he had discretion in the matter. But if he was right, he was right entirely because it was not necessary in order to safeguard the appellants interests that they should be made parties, because without being parties to the suit they could be heard by the commissioners of partition on the question of the allotment proper to be made to answer the one-eighth share over which they claimed to have security, and because as to all else, in Sir Arthur Wilsons words, " they will not be bound by any "finding come to in their absence." The learned Subordinate Judges order of April 12, 1930, is, however, in a very different position. The effect of the sale under the mortgage decree was to divest Biswanath, his mother and his sister of all interest in the property comprised in the mortgages made by his father in 1923 and 1924. The ladies interest was gone equally with his. Both his interest and theirs were derivative interests in the equity of redemption, and arose to them only on the death of Bhuban Mohan in 1925. While the purchaser at an execution sale under a mere money decree gets no more than the right title and interest of the judgment debtor at the date of the sale, the purchaser under a mortgage decree gets the right title and interest in the mortgaged subjects which the mortgagor had at the date of the mortgage and charged thereby. Buying the mortgaged property free from incumbrances he gets, as it is sometimes put, the title both of the mortgagee and of those interested in the equity of redemption. He is not a mere successor in interest of the owner of the equity of redemption at the date of the sale. Buying the mortgaged property free from incumbrances he gets, as it is sometimes put, the title both of the mortgagee and of those interested in the equity of redemption. He is not a mere successor in interest of the owner of the equity of redemption at the date of the sale. The position of the partition suit so far as regards the property now in question was that as a result of the execution sale the suit had become defective; there was no longer any party before the Court who had any interest in this property. It was to the interest of all other parties that the suit should be properly constituted, and it was not within a judicial discretion to insist that the suit should go on as regards this property behind the backs of the new owners. As Sale J. had said in the case already cited (( 1894) I. L. R. 21 C. 904, 910.) " If ....the mortgagee had "proceeded to a sale pending the partition, the purchaser "would have become a necessary party to the partition suit." The learned judges of the High Court were right therefore in directing that the appellants should be made parties. But the observation at the end of their judgment that " it goes "without saying " that all proceedings taken before April 12, 1930, would be binding upon the appellants just as much as they would be binding upon " their predecessor in interest " is not easy to interpret or accept. It may have been directed only to this—that there was no need to invalidate what had already been done in the suit merely because the appellants had not been parties at the time that partition could proceed under the preliminary decree, the appellants rights being adjusted thereunder. Sale J., on a question ol the costs ol partition, had harmlessly referred (in the case already cited) to the original mortgagor as predecessor-in-title of a purchaser at a mortgage sale, meaning no more than that he was the person who had previous to the sale represented the share in question before the Court. He had held that the purchaser could not take advantage of the partition and at the same time repudiate all liability for costs of partition incurred before his purchase. He had held that the purchaser could not take advantage of the partition and at the same time repudiate all liability for costs of partition incurred before his purchase. After referring to this passage in the judgment of Sale J., the learned judges in the present case may have had similar matters in mind when they employed the same language, and the phrase "it "goes without saying," suggests some such interpretation rather than a decision upon an important matter which had not been argued. But two Courts in India have interpreted the order made as a decision to the effect that because the preliminary decree of October 1, 1929, rightly held the mother and sister of Biswanath to have a charge for maintenance upon what he inherited, the appellants—at one time mortgagees from his father, and now purchasers of the whole original interest of his father—were liable to maintain his mother and sister out of the property, and that partition should be made accordingly. This interpretation runs some risk of doing an injustice to the learned judges, but if their Lordships may assume against the appellants that the order of the High Court involved an erroneous opinion to the effect that the preliminary decree of October 1, 1929, bound the mortgagees, it still remains that the appellants had since the passing of that decree become purchasers of the whole interest in the share, and that no decision as to their rights as purchasers had at any time been given in the suit. Their Lordships are not prepared to hold that the order of July 14, 1930, must needs be construed, contrary to the rights of the parties, as holding that after the execution sale the ladies had the same rights against the purchasers as they had had against Biswanaths interest in the equity of redemption. It is manifest that the ladies interest in the equity of redemption, equally with Biswanaths, must be regarded as having passed to the appellants, if it is not regarded as having come to an end. At no time was it correct to treat the appellants as mere assignees of Biswanaths interest. Before the sale their interest was as mortgagees, and was not represented in the suit. After the sale, when they were made parties, their interest as complete owners was before the Court—an interest which at no time had belonged to Biswanath. At no time was it correct to treat the appellants as mere assignees of Biswanaths interest. Before the sale their interest was as mortgagees, and was not represented in the suit. After the sale, when they were made parties, their interest as complete owners was before the Court—an interest which at no time had belonged to Biswanath. At no time was it correct or sufficient to regard Biswanath as "their predecessor in title”; upon any question as between Biswanath and other persons claiming to be interested in the equity of redemption a decision charging or limiting his interest had no bearing upon the rights of the appellants whether before the execution sale or afterwards. Their Lordships fully agree with the observation, made by the learned Subordinate Judge who passed the final decree, in his order of May 8, 1934, whereby he allowed the objections of the appellants to the commissioners report on the ground that a partition suit in which a preliminary decree has been passed is still a pending suit and the rights of parties who are added after the preliminary decree have to be adjusted at the time of final decree. In this view it becomes unnecessary to consider whether, if the High Courts order of July 14, 1930, was binding upon the Division Bench who heard the appeal from the final decree, it necessarily follows that it could not be disturbed on appeal to His Majesty in Council. Their Lordships will humbly advise His Majesty that this appeal should be allowed, the decree of the High Court, dated January 28, 1937, set aside, and the final decree of the learned Subordinate Judge restored. The respondents Nos. 9, 15 and 17 who appealed to the High Court must pay the costs of the present appellants incurred in the High Court and of this appeal.