Order:- The lower appellate Court distinguished the decision of Varadachari, J., in Ramanna Chettiar v. K. Manickam Chettiar1. I think, however, that it is advisable that the question whether this decision applies and, if so, whether it should be followed, should be considered by a Bench. On the case coming before a Bench, the Court (Wadsworth and Govinda-rajachari, JJ.) made the following Order of Reference to a Full Bench: The Order of the Court was delivered by Govindarajachari, J.-The facts of this case are mostly admitted. On 22nd November, 1929, defendants 1 and 2 who are the sons of one Swami by his first wife sold to the plaintiff for Rs. 6,000 under Ex. P-1 two survey numbers, R.S. No. 815 of the extent of 8 acres 44 cents and R.S. No. 817/1 of the extent of 1 acre 34 cents. On the date of the sale R.S. No. 817/1 was subject to a mortgage in favour of one Bhaskara Rao under a deed dated 1st December, 1924. Security had therefore to be furnished against the possible enforcement of the mortgage against R.S. No. 817/1. On the same date as Ex. P-1, that is to say, 22nd November, 1929, defendants 1 and 3 purchased R.S. No. 683/1, which is.4 acres 8 cents in extent. The third defendant is the son of Swami by his second wife. It is a matter of admission that defendants 1 and 2 were joint and undivided at all material time’s and that the third defendant was divided from them. It is also common ground that such interest as the first defendant acquired under the purchase of 22nd November.1929, was for the benefit-of himself and his undivided brother the second defendant. It is obvious that in respect of R.S. No. 683/1 defendants 1 and 2 became by the purchase the owners of an undivided one half share and the third defendant became the owner of the other one half share. By their sale deed to the plaintiff (Ex. P-1) defendants 1 and 2 gave as security“the eastern side plot of 2 acres in the inam wet land bearing R.S. No. 683/1 of 4 acres 8 cents” against any loss which the plaintiff might sustain by the enforcement of the mortgage over R.S. No. 817/1. By their sale deed to the plaintiff (Ex. P-1) defendants 1 and 2 gave as security“the eastern side plot of 2 acres in the inam wet land bearing R.S. No. 683/1 of 4 acres 8 cents” against any loss which the plaintiff might sustain by the enforcement of the mortgage over R.S. No. 817/1. It was in contest, in the Courts below whether there was a division of R.S. No. 683/1 on the very date of the purchase between defendants 1 and 2 on the one hand and the third defendant on the other whereby the eastern half was allotted to the former and the western half to the latter. The defendants alleged that there was no such division at that time and that there was a division only after January, 1930, whereby the third defendant got the eastern half and defendants 1 and 2 got the western half. The Courts below have accepted the defendants’ case in this respect and have held that there was no division of R.S. No. 683/1 on 22nd November, 1929 and that it was divided in the manner just mentioned some time after January, 1930. There is no document evidencing this partition; but the Courts below based their finding in regard to it principally on a deed of mortgage (Ex. D-2) executed by defendants 2 to 3 on 1st January, 1930 in favour of one Narasaraju wherein they referred to the half share in the right and enjoyment of the third defendant and the other half share in the joint right and enjoyment of the 1st and and defendants. This is a finding of fact which cannot be challenged in second appeal. There was a suggestion in the plaint that the partition was fraudulent; but there was no attempt whatever to substantiate it The subsequent history is shortly told. Defendants 1 and a sold the western half of R.S. No 683/1 on 4th November, 1930 by Ex. D-5 to the father of defendants 6 to 8 who are the appellants in the second appeal, after obtaining a relinquishment (Ex. D-5 (a)) from Narasaraju, on the same date. of his mortgage right over that half. On the 25th july 1934 the third defendant sole the eastern half to defendants 4 and 5. D-5 to the father of defendants 6 to 8 who are the appellants in the second appeal, after obtaining a relinquishment (Ex. D-5 (a)) from Narasaraju, on the same date. of his mortgage right over that half. On the 25th july 1934 the third defendant sole the eastern half to defendants 4 and 5. The plaintiff lost the 1 acre 34 cents in R.S. No 817/1 by the sale in execution of the decree which the mortgagee under the deed of mortgage, dated 1st December, 1924 obtained in O.S. No. 377 of 1936 on the file of the District Munsiff of Bhimavaram. The plaintiff estimated the value of the property lost at Rs 800 Addinag Rs To to it for expenses incurred by him in defending the mortgagee’s suit and Rs. 288 for the profits of the property lost by him for 1941, he filed the present suit for the recovery of Rs 1,128 “from all the defendants or from such of the defendants as may be determined by the Court and from the security property mentioned in the schedule.” The trial Court gave a decree to the plaintiff for Rs 969 together with subsequent interest at 6 per cent, per annum on Rs. 800 “to be recovered by sale of the western half in R.S. No. 683/1 in the hands of defendants 6 to 8” It is not denied that the amount is correct. This decree was upheld by the lower appellate Court. Defendants 6 to 8 challenge the decree of the lower appellate Court on the ground that the principle of substituted security on which that decree and the decree of the trial Court were based is not applicable as the pronerty given by way of security is a specific plot and not an undivided share owned by the mortgagors and that the property in the hands of the appellants cannot consequently be proceeded against The second appeal came up for the hearing before Happell. J. who directed it be posted before a Bench. J. who directed it be posted before a Bench. It is obvious from what has been stated that defendants 1 and 2 were not at the time when they gave security to the plaintiff entitled to the eastern side plot of 2 acres in R.S. No. 683/1 and that they were at that time entitled only to an undivided half share in that survey number The eastern half share in that survey number having fallen to the share of the third defendant at a partition which is not liable to be challenged the plaintiff can have no possible claim to proceed against it which as already stated, is now owned by defendants 4 and 5, the vendees from the third defendant The question is whether, having regard to the fact that a definite plot was given as security to the plaintiff he could, on the principle of substituted security enforce his security aginst the western half share which defendants 1 and 2 got at the partition in substitution of their original undivided half share On behalf of the appellants considerable reliance is placed on the decision of Varadachari J., in Ramanna Chettiar v. Manickam Chettiar1. The principal argument on behalf of the respondents is that this decision is inconsistent with an earlier decision of this Court in Muthiah Raja v. Apbala Raja2, and with several decisions of other High Courts very much to the same effect. Before dealing with the decisions in detail, reference may first be made to the principle enunciated by the Privy Council in the leading case reported in Byjnath Lall v. Ramoodeen Chowdry3, which is relied on in all the later decisions as the basis and foundation of the principle of substituted security in the case of mortgages. In that case there was a mortgage over an undivided moiety in the villages of Gunniporebeja and Pemburinda which together with the village of Tajpore Ruttunpore formed a joint and undivided estate. The sharers however do not appear to have been members of a joint undivided Hindu family but to have enjoyed their respective shares (at all events their shares in the two villages) in severalty. The sharers however do not appear to have been members of a joint undivided Hindu family but to have enjoyed their respective shares (at all events their shares in the two villages) in severalty. Under a butwara or revenue partition the mortgagor was awarded in lieu of his undivided moiety in the estate the whole of Pemburinda, the whole of Tajpore Ruttunpore and certain small parcels of land in Guniporebeja to which no detailed reference need be made. There was no suggestion of fraud in regard to the partition; nor was there any ground to suppose that it was other than fair and equal. The question was whether the mortgage could be enforced against the lands allotted to the mortgagor at the partition. The Privy Council held that it could be enforced against such lands-whether they be in the possession of the mortgagor or of one who purchased his right, title and interest. The ratio decidendi is brought out in the following passages which we will quote in full: “It is .... . 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 to 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”. (Page 119). “.....Can it be doubted that the mortgagee of the undivided share of one co-sharer (and, for the sake of argument, the mortgage may be assumed to. cover the whole of such undivided share), who has no privity of contract with the other co-sharers would have no recourse against the lands allotted to such co-sharers; but must pursue his remedy against the lands allotted to his mortgagor, and, as against him, would have a charge on the whole of such lands. He would take subject to the pledge in the new form which it had assumed.” A question arose whether a distinction had not to be made between Pemburinda and the parcels of land in Gunniporebeja which had been allotted to the mortgagor at the partition on the one hand and the village of Tajpore Ruttunpore on the other, the latter having been expressly excluded from the mortgage. The Privy Council observe that, “It is certainly possible to conceive cases in which, the security not covering the undivided share in the whole estate, it might be difficult to determine which of the lands allotted in substitution of that share represented the mortgage premises.” They add however that no such difficulty existed in the case before them inasmuch as the whole of Tajpore Ruttunpore was allotted to the mortgagor. The mortgagor was entitled to an 8 annas share in that village at the time of the mortgage and since that share was excluded from the mortgage did not seek to enforce the mortgage against it. Whetever was allotted to the mortgagor in that village in excess of those 8 annas must be taken to have been so allotted in substitution of his interest in the villages of Ghinnaporebeja and Pemburinda and therefore becomes subject to the mortgage. Stopping here, it seems to us mat the real basis of the doctrine of substituted security is that where a co-sharer mortgages his undivided share, over which he could quite obviously give a valid mortgage, the parties must be taken to have contracted that the mortgage should operate over such property as might subsequently be allotted to the mortgagor at a partition between him and his co-sharer where such partition is fair and equal and is not vitiated by fraud. The subject matter of the mortgage being by its very nature, mutable, it is, so to say, a necessary incident of the mort gage that it shall be enforceable against the property into which the hypotheca might be transformed. The subject matter of the mortgage being by its very nature, mutable, it is, so to say, a necessary incident of the mort gage that it shall be enforceable against the property into which the hypotheca might be transformed. On the one hand the mortgagee cannot enforce his security against that part of the mortgaged estate which may be allotted to a non-mortgagor co-sharer at a fair partition because when the mortgagee took the mortgage he accepted the risk of such an allotment and also because the rights of the non-mortgagor co-sharer cannot, in any way, be affected by the mortgage to which he was no party On the other hand there can be no resistance to the claim of the mortgagee to enforce his security against a defined portion of the estate which is allotted to the mortgagor in lieu of his undivided share in the whole estate, whether the mortgagee’s right is viewed as arising out of an implied term of the mortgage or as a logical consequence flowing out of the nature of the property mortgaged. We are unable to see how any such implication or consequence can possibly arise when the property mortgaged is a definite item which it is quite clearly not competent to the mortgagor to mortgage. We regard the difference between the two cases as fundamental. It is the difference between a person transferring a property which he could transfer and a person transferring property which he is incompetent to transfer. Dealing with a transaction of the former kind the doctrine of substituted security merely works out the results of a contingency which the parties must be taken to have had in contemplation and adjusts their rights to the new, though anticipated, situation. In Muhammad Afzal, Khan v. Abdul Rahman1, the Privy Council reiterated the principle which was laid down in Byjnaih Lall v. Ramoodeen Chowdry2, They state 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.” They then refer to the earlier decision in Byjnath Lall v. Ramoodeen Chowdry2, and add“that the principle enunciated in that case applies equally to a partition by arbitration such as the one in the present case.” It was suggested for the respondents that specific items of property were mortgaged in the case in Muhammad Afzal Khan v. Abdul Rahman1 relying on the statement in the judgment that “respondent 3 and his son Sardar Ali executed a mortgage of some of the properties in favour of the appellant”. This, however, seems to us to be altogether inconclusive as the language is consistent equally with a mortgage of an undivided share in some of the properties as with a mortgage of some of the properties held in common. Apart from the passage“which we have quoted above as containing the ratio decidendi of Muhammad Afzal Khan v. Abdul Rahman,1 and which in our opinion-is quite clear, the manner in which the contention on behalf of the appellant in that ease is set out leaves no room for doubt that what was mortgaged was an undivided share in some of the properties held in common. We may observe in passing that Varadachari, J., states in his judgment in Ramarma. Chettiar v. Manickam Chettiar,3 that by their judgment in Muhammad Afzal Khan v. Abdul Rahman1, the Privy Council”slightly modified the statement of the proposition in Byjnath Lall v. Ramoodeen, Chotudry2, by making it applicable even where a co-sharer mortgages his undivided share in some of the properties held by him jointly with other co-sharers“. Chettiar v. Manickam Chettiar,3 that by their judgment in Muhammad Afzal Khan v. Abdul Rahman1, the Privy Council”slightly modified the statement of the proposition in Byjnath Lall v. Ramoodeen, Chotudry2, by making it applicable even where a co-sharer mortgages his undivided share in some of the properties held by him jointly with other co-sharers“. We do not think there was” any such modification, as the Privy Council were quite aware in Byjnath Lall v. Ramoodeen Chowdry2, as the learned Judge himself points out in, another place, that they were Judges dealing with a case in which an undivided share in two out of diree properties was alone mortgaged and the proposition of law enunciated in Byjnath Lall v. Ramoodeen Chowdry2, at page 120 must therefore be taken to cover not only the case of a mortgage of the entire undivided share of the mortgagor but also a case where an undivided share in some of the properties alone is mortgaged. When a mortgage is of an undivided share in some only of the properties held in common, complicated questions may arise as to whether the mortgagee is entitled to the security of the entire property obtained by the mortgagor in substitution of his original undivided share and if the mortgagee’s rights are to be restricted to a proportionate part of the substituted security how exactly such proportion is to be worked out, particularly in rivalry with the claims of third parties arising either by sale or by mortgage. Some of these problems were considered by Mookerjee, J., in Hakim Lal v. Rant Lal1, which decision however is not relevant to the present discussion, as all the illustrations given by the learned Judge in that case are concerned only with mortgages of an undivided share either in the whole of the joint property or in some items of it. Only three decisions of this High Court have been cited as bearing on the present question. The first of these is the decision in Pullamma v. Pradosham2. In that case two persons Surya Narayana and Narasimman together with certain others obtained some waste lands on dharkast from the Government. Surya Narayana mortgaged a plot of 7.76 acres to the 7th defendant. The 6th defendant traced his title to a sale held in execution of a decree passed on foot of this mortgage. In that case two persons Surya Narayana and Narasimman together with certain others obtained some waste lands on dharkast from the Government. Surya Narayana mortgaged a plot of 7.76 acres to the 7th defendant. The 6th defendant traced his title to a sale held in execution of a decree passed on foot of this mortgage. Disputes having arisen between the pattadars in regard to the division of the lands which they had obtained in darkhast, there was a reference to the arbitrations of a Deputy Collector who allotted the plot of 7.76 acres to Narasimman who sold it to the plaintiff. The contest before the High Court was as between the plaintiff’s heirs and the 6th defendant. The High Court held that the plaintiff’s vendor Narasimman obtained a good and valid title to the land in question by the partition made by the Deputy Collector not only against the 5th defendant but also against his mortgagee and the purchaser in execution of a decree based on that mortgage. It was not therefore a case where the question arose as between the mortgagee and the mortgagor in respect of the property which the latter subsequently got in substitution of the property which he had mortgaged. The learned Judges first state that when the 5th defendant mortgaged 7.76 acres he had no specific or exclusive right to them and that he then possessed only an undivided interest in the whole of the lands granted to him and others jointly and“that the mortgage made by him was clearly subject to the conditions and liabilities which at the date of the transaction affected his undivided interest in the property mortgaged.” They then gave a long quotation from Domat’s Civil Law which seems to us to have dealt only with the right of a mortgagee of an undivided share from a mortgagor who held an estate in common with another or others. Reference is then made to Byjnath Lall v. Ramoodeen Chowdhry3 and to Hem Chunder Ghose v. Thako Moni Debi4, which is referred to as a case very similar to the case before them. Reference is then made to Byjnath Lall v. Ramoodeen Chowdhry3 and to Hem Chunder Ghose v. Thako Moni Debi4, which is referred to as a case very similar to the case before them. We are unable to regard this as a pronouncement on the question which has now directly arisen, notwithstanding that it can be suggested from some of the observations of the learned Judges that they might not have meant to make any distinction between a mortgage of an undivided share and mortgage of an entire item in a joint estate. In Muthiah Raja v. Appala Raja5, occurs the following passage to which Varadachari, J., also referred in his decision in Ramanna Chettiar v. Mankkam Chettiar6: “The authorities are clear that a mortgagee of an undivided share in common property, or of one of the joint properties before partition from one of the sharers is only entitled to proceed against the substituted property which falls to the share of the mortgagor at the partition, unless the partition has been unfair or is in fraud of the mortgagee.” Domat’s Civil Law and the decision of the Privy Council in Byjnath Lall v. Ramoodeen Chowdry3, are cited and it is remarked that “the broad principle above referred to has been applied in numerous cases,” referring to Hem Chunder Ghose v. Thako Moni Debi4, Amolak Ram v. Chandan Singh7, Shahebzada Mahomed Kazim Shah v. Hills8. It is necessary to state the facts in Muthia Raja v. Appala Raja5 in their chronological sequence. The first defendant and the plaintiff were the sons of one Bangaru Raja by his senior and junior wives respectively. For some time the father and the plaintiff were living together and the first defendant was living apart, the produce of the family lands being divided between them. On 27th July, 1901, the first defendant gave a mortgage over certain specific items of family property to the second defendant. On the 90th October, 1901 a partition was effected between the father and the two sons each of them taking a third share. On the 15th April, 1904 the father gave the properties which fell to his share to the plaintiff. The plaintiff sought a declaration that the mortgage was not binding on the plaint lands all of which fell to his share on partition and also prayed for possession of those lands alleging a trespass. On the 15th April, 1904 the father gave the properties which fell to his share to the plaintiff. The plaintiff sought a declaration that the mortgage was not binding on the plaint lands all of which fell to his share on partition and also prayed for possession of those lands alleging a trespass. The District Munsiff gave him a decree for only one third share but the Subordinate Judge on appeal decreed possession of the entire property. The mortgagee, second defendant, filed two second appeals one as to the one third share belonging to the first defendant and the other as to the two thirds share belonging to the plaintiff and his father. Both the second appeals were dismissed. In dismissing the former the learned Judges held that in the absence of any allegation that the partition was otherwise than fair and equal or that it was in fraud of the mortgagee the plaintiff’s right must prevail. It would therefore be noticed that in this case too there was no need to state or define what the rights of the mortgagee (second defendant) were against his mortgagor, the contest being between the mortgagee and the non-mortgagor co-sharer to whom were allotted the mortgaged properties. Referring to this case, Varadachari, J., observes in Ramanna Chettiar v. Mankkam Chettiar6 that the particular distinction now arising for decision did not call for decision in that case, and we agree with him. It does not appear whether the learned Judge’s attention was drawn to the fact that the mortgage in that case was of specific properties and not of an undivided share. We have sent for the minted papers in Muthia Raia v. Appala Raja. 5 and find that the mortgage was of certain items in their entirety and not of the undivided share of the mortgagor in them. The latest pronouncement of this Court is the decision of Varadachari, J. in Ramanna Chettiar v. Mankkam Chettiar1. We have sent for the minted papers in Muthia Raia v. Appala Raja. 5 and find that the mortgage was of certain items in their entirety and not of the undivided share of the mortgagor in them. The latest pronouncement of this Court is the decision of Varadachari, J. in Ramanna Chettiar v. Mankkam Chettiar1. In that case two out of several co-parceners in a joint Hindu family mortgaged S. No. 199/1 of the extent of 1 acre 82 cents without disclosing that there were other co-parceners interested in the property and the mortgage was not of any share in the joint family property, in a partition between the co-parceners the mortgagors were allotted only 51 cents in that survey number but got for their shares other properties also, including S. No. 199/2. All these properties were subsequently sold away by the mortgagors. The mortgagee sought to enforce his mortgage not only against the 51 cents allotted to his mortgagors in S. No. 199/1 but also by sale of S. No. .199/2. A decree was given to him in respect of the 51 cents; but the suit was dismissed as against S. No. 199/2. In rejecting that part of the claim Varadachari, J., held that the principle stated in Byjnath Lall v. Ramooden Chowdry2 and Muhammad AfzalKhan v. Abdul Rahman would not apply when a specified item of propertv is mortgaged. He laid some emphasis upon the fact that "the Law of mortgages in India at present rests mainly on Statute and it is the policy of the Transfer of Property Act and of the Registration Act that any person dealing with property must be in a position to trace the encumbrances to which it is subject at any particular time. We doubt whether this line of reasoning can be regarded as decisive of the point at issue. 11, according to the decision of the Privy Council in Byjnath Loll v. Ramoodeen Chowdry2 and Muhammad Afzal khan v. Abdul Rahman3, the principle of substituted security would apply even where a co-sharer mortgages his undivided share in one or several items, a search of the register in respect of the items not mortgaged would not reveal the existence of the mortgage; but if these items are subsequently allotted to the mortgagor it cannot be denied that the mortgage would be enforceable against them. This however does not detract from the force of the learned Judge’s reasoning against any extension of the doctrine of substituted security to cases not contemplated by the decisions of the Privy Council The learned Judge also points out that a question may arise whether the right of a mortgagee to proceed against properties not included in the mortgage on the principle of substituted security, would not be a charge within the meaning of section 100 of the Transfer of Property Act and whether in that event the question is not likely to be further complicated by the existence or otherwise of notice to the subsequent transferee but this consideration too is not material as the question whether the principle of substituted security applies is logically distinct and separate from the question whether it can be applied against a transferee for consideration without notice. Reference must now be made to the decisions of the other High Courts some of which were relied on in Muthia Raja v. Appala Raja4. In Hemchunder Ghose j. Thako Moni Deli5, it would appear from the Reporter’s statement of facts that the mortgage was of a definite plot of land. The contest, however, was as between the mortgagee and the mortgagor’s co-sharers to whom the mortgaged property was subsequently allotted at a partition and not between the mortgagee and the mortgagors or alienees from them in respect of the property got in substitution. At page 535 the learned Judges state that what was mortgaged was joint undivided property, perhaps meaning that it was property held in certain shares by the mortgagors and their co-sharers who were the appellants. The principle of Byjnath Lall v. Ramoodeen Chowdry2 is said to apply in favour of the non-mortgagor co-sharers even where the mortgaged property is allotted to their share at a partition under a decree of Court where such partition was not effected by fraud or collusion between the mortgagors and their co-sharers and that the partition need not necessarily be made by the revenue authorities under Regulation XIX of 1814 as happened in Byjnath Lall v. Ramoodeen Chowdry2. The learned Judges however make the following observations: "They (mortgagees) will of course be at liberty to bring to sale the share of the mortgagor-defendants in the portion which was left undivided, as well as any property which has been allotted to the latter in substitution of what was mortgaged, and this is a point which the (lower) Court will also have to determine, if it can do so." In Shahehzada Mahomed Kazim Shah v. Hills6, the mortgage was evidently of an undivided share of the mortgagor and it was held that the security was shifted as the result of a partition from such an undivided share on to the property allotted to him under a partition decree. Amolak Ram v. Chandan Singh7 too was a case where there was a mortgage of an undivided share. In Umar v. Sakharam8 there were two mortgages one of which appears to have been of a definite plot of land while the other was of an undivided share. The defendants traced their title to the sales in execution of those . mortgages while the plaintiff was a non-mortgagor to whom the lands which were the subject of the mortgages were allotted at a partition. The learned Judges were therefore not concerned with the question which arises in the present case; but they observed relying on Byjnath Lull v. Ramoodeen Chowdry2and Hem Chunder Ghose v. Thako Moni Debi5 that the mortgagees could proceed against their mortgagors and the property which had fallen to the share of the mortgagors. There was no discussion as to whether the principle of Byjnath Lall v. Ramoodeen Chowdry2 would apply in respect of both the mortgages or in respect of only one of them; nor is there any advertence to the fact that while one of the mortgages was only of a share, the other was of the entirety of one item of the joint property. Amar Singh v. Bhagwan Das9 was also a case where an undivided share was mortgaged and the decision does no more than follow the principle laid down in Byjnath Lall v. Ramoodeen Chowdry2. Amar Singh v. Bhagwan Das9 was also a case where an undivided share was mortgaged and the decision does no more than follow the principle laid down in Byjnath Lall v. Ramoodeen Chowdry2. In referring to Hem Chunder Ghose v. Thako Moni Debt1 Varadacharl, J., observes that it is not possible to gather from the report whether the mortgage there was of a specific property or an undivided share and he assumes that Umar v. Sakharam2 was a case of a mortgage of an undivided share. On an examination of the facts of those two cases and of those in Muthiah Raja v. Appala Raja5 we find that the mortgages in the first and the third and one of the mortgages in the second were of specific items. The position therefore is that in Hem Chunder Ghose v. Thako Moni Debi1, Pullamma v. Pradosham3 and Umar v. Sakharam3, the principle laid down in Byjnath Lall v. Ramoodeen Chowdry4 is repeated perhaps without any advertence to the fact that in each of those cases a specific item and not an undivided share was mortgaged. In Muthia Raja v. Appala Raja5, where also specific items were mortgaged, the learned Judges clearly state though the point did not directly arise for determination that the principle of Byjnath Lall v. Ramoodeen Chowdry4 would apply as much to a mortgage of an undivided share as to a mortgage of an item of common property. We therefore think it is desirable that it should be authoritatively decided by a Full Bench whether the principle of Byjnath Lall v. Ramoodeen Chowdry4 is applicable when a specific item of joint property is mortgaged by a co-sharer . The case will be posted before a Full Bench subject to the orders of the Hon’ble the Chief Justice. In pursuance of the above order of reference the appeal came on for hearing before a Full Bench. P. Satyanarayana Rao for Appellants. K. Venkatarama Raju for Respondents. The Court delivered the following Judgments: Rajamannar, J.-This is an appeal from the judgment and decree of the learned Subordinate Judge of Narasapur confirming the decree and the judgment of the learned District Munsiff of Bhimavaram in a suit instituted by the first respondent. The first and second defendants are the sons of one Swami by his first wife; the third defendant is the son by his second wife. The first and second defendants are the sons of one Swami by his first wife; the third defendant is the son by his second wife. At all material times defendants I and 2 were undivided, but the third defendant was divided from them. By a sale deed dated 22nd November, 1929, (Ex. P-1) the first and second defendants sold to the plaintiff for Rs. 65000, the lands in two survey numbers of the extent of 8 acres 44 cents in R.S. No. 815 and one acre 34 cents in R.S. No. 817/1, in the village of Srungavruksham in West Godavari district. On the date of sale R.S. No. 817/1 was subject to a mortgage dated 1st December, 1924 executed by the first defendant in favour of one Bhaskara Rao. On the same date as Ex. P-1, i.e., 22nd November, 1929, defendants 1 and 3 purchased R.S. No. 683/1 in the same village which was 4 acres 8 cents in extent. It is not disputed that the interest which the first defendant acquired under this purchase was for the benefit of himself and his undivided brother, the second defendant. To indemnify the plaintiff against any loss that he may sustain on account of the mortgage subsisting on one of the items sold to him, viz., R.S. No. 817/1, defendants 1 and 2 gave as security a defined plot of two acres on the eastern side of R.S. No No. 683/1, which, as already mentioned, was of a total extent of 4 acres 8 cents. It has been found by both the Courts below that one the date of these transactions, i.e., 22nd November, 1929, there was no division by metes and bounds of the said R.S. No. 683/1 between defendants 1 and 2 on the one hand and the third defendant on the other. It was sometime after January, 1930 that there was a partition according to which the western half of the survey number fell to the share of defendants 1 and 2 and the eastern half to the share of the third defendant. It was suggested by the plaintiff that this partition was fraudulent, but his plea was not substantiated. On the 1st January, 1930, defendants 1 to 3 executed a mortgage over R.S. No. 683/1 in favour of one Narasaraju. In the deed of mortgage (Ex. It was suggested by the plaintiff that this partition was fraudulent, but his plea was not substantiated. On the 1st January, 1930, defendants 1 to 3 executed a mortgage over R.S. No. 683/1 in favour of one Narasaraju. In the deed of mortgage (Ex. D-2) it is recited that a half share in the property belonged to the first and second defendants and the other half share belonged to the third defendant. On the 4th November, 1930, the first and second defendants sold the western half of the survey number which had fallen to their share, to the father of defendants 6 to 8 after obtaining a release from the mortgagee under Ex. D-2 in respect of that half. On the 25th July, 1934, the third defendant sold the eastern half of the survey number which fell to his share to defendants 4 and 5. Defendants 1 and 2 did not discharge the mortgage in favour of Bhaskara Rao on R.S. No. 817/1 and in execution of a decree obtained by the mortgagee the plaintiff lost the property covered by that survey number. Thereupon he instituted the suit out of which the present second appeal arises, to recover the amount of loss sustained by him by a sale of the property given as security in his sale deed. In his plaint he referred to the partition between defendants 1, 2 and 3 at which the western half of R.S. No. 683/1 fell to the share of defendants 1 and 2. He attacked the partition as fraudulent, but in the alternative he alleged that assuming that the partition was valid, "even then the half share of two acres 4 cents on the west alleged to have fallen to the share of defendants 1 and 2, is, both according to law and equity, liable as substituted security with respect to the plaintiff’s loss." The main contesting defendants were defendants 6 to 8, their father who was the purchaser under Ex. D-5 having died. Inter alia they pleaded that their father had no notice of the hypothecation in favour of the plaintiff and that he was a bona fide purchaser for proper consideration arid that the plaintiff was not entitled to proceed against their property and the plaintiff could not rely on any rule of substituted security. The learned District Munsiff held that the plaintiff was entitled to recover a sum of Rs. The learned District Munsiff held that the plaintiff was entitled to recover a sum of Rs. 969, being the amount of loss sustained by him with subsequent interest by the sale of the western half share in R.S. No. 683/1 in the hands of defendants 6 to 8 and granted a decree accordingly. This decree as already mentioned was confirmed on appeal by the learned Subordinate Judge. Hence this second appeal by defendants 6 to 8. On the findings of the lower Court which must be accepted as final in second appeal, the position is as follows: On the date of the sale deed in favour of the plaintiff which contained a covenant of indemnity and created the hypothecation in his favour, defendants 1 and 2 were not entitled to any specific plot of 2 acres in R.S. No. 683/1 on its eastern side. They were entitled at the time only to an undivided half share in that survey number. At the partition the eastern half fell to the share of the third defendant from whom defendants 4 and 5 derive title. Undoubtedly this land, viz., the eastern half now in the hands of defendants 4 and 5 cannot be liable to any charge in favour of the plaintiff or the burden of the indemnity in his favour. The ruling of the Judicial Committee, Mohamed Afzal Khan v. Abdul Rahman1, is conclusive on the point. The entire controversy therefore in the lower Courts was as to whether the western half which fell to the share of"defendants 1 and 2 at the partition and which was conveyed subsequently to defendants 6 to 8 was liable, though it was not the subject of the security given under the sale deed Ex. P-1. This second appeal originally came for hearing before Happell, J., who thought that the question arising in the case should be considered by a Division Bench. The appeal then was heard by Wadsworth and Govindarajachari, JJ., who thought it desirable that the case should be posted before a Full Bench. P-1. This second appeal originally came for hearing before Happell, J., who thought that the question arising in the case should be considered by a Division Bench. The appeal then was heard by Wadsworth and Govindarajachari, JJ., who thought it desirable that the case should be posted before a Full Bench. The question which calls for decision in this appeal may be shortly stated thus: When one of several so-sharers purports to mortgage a specific item of property to which they are jointly entitled and after the execution of the mortgage there is a partition among the co-sharers at which the item mortgaged is not allotted to the mortgagor-co-sharer, but other items are allotted to him, what are the rights of the mortgagee? This question must be considered from two aspects, viz., (i) what are the rights of the mortgagee against his mortgagor? (ii) what are his rights against an alienee of the items allotted to his mortgagor at the partition? It has now been well established that when one of two or more co-sharers mortgages his undivided share in 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 if the mortgage 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. This rule is sometimes described as the rule of substituted security and so far as Courts in India are concerned it is traced to the decision of the Judicial Committee in Byjnath v. Ramoodeen Chowdry1. This rule has also been applied without hesitation to a case where the co-sharer mortgages his undivided share in some only of the properties held by him jointly with the other co-sharers, though no doubt it was realised that there might be difficulty in determining which of the lands allotted to the mortgagor at the partition should be taken to represent the mortgaged properties where the mortgage does not cover the entire undivided share of the mortgagor but only comprises some of such properties. Asutosh Mukerjee, J., worked out in Hakimlal v. Ramlal,2 a formula for such instances, viz., the substituted security must be a fraction of the share allotted to the mortgagor bearing the same proportion to the share as the mortgaged property would bear to the entire joint property. There have been several decisions extending the doctrine of substituted security to such cases, i.e., where the mortgage is only of an undivided share in some of the joint properties and the pronouncement of the Judicial Committee in Mohamed Afzhal Khan v. Abdul Rahman3, covers them. It may be mentioned that the leading case of Byjnath Lall1, was itself a case where the mortgage comprised the unvdivided share of the mortgagor only in two villages though he was jointly entitled to other properties also. It was not seriously contended before us that the doctrine of substituted security should not be extended to such cases. It was strongly urged by Mr. P. Satyanarayana Rao, learned advocate for the appellants that this doctrine cannot be extended to a case where a co-sharer purports to mortgage a specific item out of joint property. He relied in support of his contention on the judgment of Varadachariar, J., in Ramanna Chettiar v. Manickam Chettiar,4 in which the learned Judge said: “Where no reference at all is made to the fact of the mortgagor being the owner of a share and the property is mortgaged as if he was the absolute owner thereof, it seems to me there is even less justification for the application of the doctrine of substituted security and there are obvious difficulties as pointed out by me in extending this doctrine very far.” He also relied on certain observations in the order of reference indicating that the learned Judges who made the reference were inclined to accept the view of Varadachariar, J. The learned advocate for the appellants has not been able to place before us any other decision taking the same view. On the other hand there are decisions which appear to justify an extension of the doctrine even to cases where the co-sharer mortgages one item of the joint property and not merely an undivided share of the item or an undivided share of the entire joint property. On the other hand there are decisions which appear to justify an extension of the doctrine even to cases where the co-sharer mortgages one item of the joint property and not merely an undivided share of the item or an undivided share of the entire joint property. In Pullamma v. Pradosham5, the mortgage was of a specific extent of 7 acres 76 cents out of the joint property belonging to the mortgagor and other co-sharers. According to a partition made subsequently as a result of arbitration the lands in question, viz., 7.76 acres were allotted to a sharer other than the mortgagor and he sold them to the plaintiff. It was held that the plaintiff was entitled to a declaration that the lands purchased by him were not affected by the mortgage and proceedings taken on the foot of mortgage. The learned Judges in discussing the law say as follows: “At the time the fifth defendant mortgaged 7.76 acres in question he had no specific or exclusive right to them. He then possessed but an undivided interest in the whole of the lands granted to him and others jointly including those in dispute and the mortgage made by him was clearly subject to the conditions and liabilities which at the date of the transaction affected his undivided interest in the property mortgaged.” In the view of the learned Judges the rule of substituted security enunciated in Domat’s Civil Law and by the Privy Council in Byjnath Lall’s1 case applied to the facts. It must, however, be said that the contest in that case was between the mortgagee and a purchaser from the co-sharer other than the mortgagor. The question now in issue did not directly arise. The same may be said of Muthia Raja v. Appalaraja2. But the statement of the law by the learned Judges taken in conjunction with the facts in that case appears to me to indicate that the doctrine of substituted security was applicable to the case in their opinion. As pointed out in the order of reference the mortgage in that case was over certain specific items of family property executed by the first defendant, one of the co-sharers. At a subsequent partition these items fell to the share of another co-sharer. It was held that the mortgage was not binding on such items. As pointed out in the order of reference the mortgage in that case was over certain specific items of family property executed by the first defendant, one of the co-sharers. At a subsequent partition these items fell to the share of another co-sharer. It was held that the mortgage was not binding on such items. This is what the learned Judges say: “The mortgage by the first defendant was before the partition. At the partition the whole of the suit properties fell to the plaintiff’s share. It is not alleged that the partition was otherwise than fair and equal. It was not in fraud of the mortgagee. The authorities are clear that a mortgagee of an undivided share in common property, or of one of the joint properties before partition from one of the sharers is only entitled to proceed against the substituted property which falls to the share of the mortgagor at the partition, unless the partition has been unfair or is in fraud of the mortgagee. The principle is well explained in Domat’s Civil Law, section 1671. In Byjnath Lall v. Ramoodeen Chowdry1, the Privy Council has adopted the same principle............. But the broad principle above referred to has been applied in numerous cases.” Varadachariar, J., thought that this statement did not justify him in extending the doctrine of substituted security to the case of a mortgage of an item of joint property, because the point did not arise for decision in that case and the learned Judges merely purported to restate the effect of the authorities. With great respect to the learned Judge, I do not think so. Having regard to the facts of the case, viz., that it was concerned with a mortgage of one of the joint properties and hot an undivided share in any property, the learned Judges deliberately added the words “or of one of the joint properties.” These or similar words do not occur in Domat’s Civil Law or Byjnath Lall’s case1. The addition of these words clearly implies that in the opinion of the learned Judges, the doctrine enunciated in Byjnath Lall’s case1 would apply to the facts before them. The addition of these words clearly implies that in the opinion of the learned Judges, the doctrine enunciated in Byjnath Lall’s case1 would apply to the facts before them. Though it is true that what was directly decided in that case was that the mortgagee was not entitled to proceed against the properties mortgaged which had been allotted to a co-sharer other than the mortgagor, nevertheless the decision is really based on the rule that the mortgagee is entitled to proceed only against the substituted property which falls to the share, of the mortgagor at the partition. The other part of the rule, viz., that he was not entitled to proceed against the property originally mortgaged was only a corollary to the first part of the rule above stated. Mention is made with approval both in Pullamma v. Pradosham3 and Muthia Raja v. Appalaraja2 of the ruling of the Calcutta High Court in Hem Chunder Ghose v. Thako Moni Debi4 and the significance of the approval of this decision would become apparent when we examine the facts of that case. One Ramgovind executed a mortgage in favour of the plaintiff of a certain plot of land within specified boundaries. It was found that the land was the joint property of the mortgagor and other co-sharers. Subsequent to the execution of the mortgage there was a partition under a decree of Court by which the mortgaged property with the exception of a small portion which was kept joint was allotted to the sharers other than the mortgagor. The mortgagee brought a suit to recover the principal and interest due on the mortgage. The defendants included not only the representatives of the mortgagor, the original mortgagor having died, but also the co-sharers to whom the major portion of the mortgaged land had been allotted at the partition. The partition was not challenged on the ground of fraud. The lower Courts held that the mortgagee was not affected by the partition and that the mortgaged property with the exception of the non-mortgagor’s shares should be sold in satisfaction of the mortgage just as if no partition had been made. The co-sharers appealed to the High Court. The partition was not challenged on the ground of fraud. The lower Courts held that the mortgagee was not affected by the partition and that the mortgaged property with the exception of the non-mortgagor’s shares should be sold in satisfaction of the mortgage just as if no partition had been made. The co-sharers appealed to the High Court. The learned Judges, Macpherson and Beverley, JJ., dealt with the facts thus: “What was mortgaged was joint undivided property in which the appellants had a 3 anna odd-gunda share; their co-sharers, the mortgagors, could undoubtedly pledge their own undivided shares-at least it is no part of the appellants’ case that they could not do so, but they could not by such mortgage affect the interest of the other co-sharers. The mortgage was subject to the right of those sharers to enforce a partition..... In the absence, therefore, of any fraud in effecting the partition, plaintiff has no right to proceed against that portion of the undivided mortgaged property which on partition was allotted to the appellants, but he can proceed against that portion of the undivided property which was allotted to the mortgagor defendants in substitution of their undivided share in the portion mortgaged. We must set aside the decrees of the lower Courts directing the sale of the mortgaged property, with the .exception of the 3. anna odd-gunda share belonging to the appellants, and remand the case in order that it may be determined exactly what portion of the mortgaged property was on partition allotted to the appellants. Against that portion the plaintiffs can have no charge. They will of course be at liberty to bring to sale the share of the mortgagor defendants in the portion which was left undivided, as well as any property which has been allotted to the latter in substitution of what was mortgaged, and this is a point which the Court will also have to determine, if it can do so.” This decision is clearly an authority for the position that even when a co-sharer mortgages a definite plot out of the joint property and there is a subsequent partition in which that plot is not allotted to the mortgagor, but other property is, the mortgagee has a right to proceed against the property allotted to his mortgagor. I do not agree with the remark of Varadachariar, J., in Ramanna Chettiar v. Manickam Chettiar1 that it is not possible to gather from the report whether the mortgage in that case was of a specific property or an undivided share. It is clear from the report that the mortgaged property was of an extent of 2 bighas of ryoti land within specified boundaries. This view has been uniformly taken by other Courts. It is sufficient to mention the decisions in Liladhar Uttamchand v. Shivaji Ganesh,2Mohan Lal v. Wadhawa Singh3 and Ganga Prasad Rao v. Dulari Saran Singh4. I do not see anything to prevent the equitable rule enunciated by the Judicial Committee in Byjnath Lall v. Ramoodeen Chowdhry5 from being applied to the case of a mortgage of a specific item of joint property by one co-sharer. Varadachariar, J., was apparently inclined not to extend the rule to such cases because of the “hardships of unlimited extension of the rule when we come to deal with the rights of the bona fide alienees of the properties allotted at the partition, to the mortgagor.” He adverted to the fact that such a transferee cannot ordinarily discover that the property he is purchasing is subject to any encumbrance by a search of the registration records. But with great respect I am unable to see how these considerations can apply to the ‘mortgagor himself or his legal representatives. On the other hand it appears to be inequitable that it should be open to the mortgagor to hold the substituted lands free of the burden of the mortgage which he had purported to create on a part of the joint property, though he might not legally have been competent to alienate that part. In my opinion the consideration of the hardship to a bona fide purchaser is not relevant in determining the rights inter se between the mortgagee and the mortgagor. With great respect, I do not think it would be correct to say that, when a co-sharer purports to alienate a specific item of joint property, he is dealing with property to which he had no title at the time. He certainly had some title, viz., the interest of an undivided co-sharer. With great respect, I do not think it would be correct to say that, when a co-sharer purports to alienate a specific item of joint property, he is dealing with property to which he had no title at the time. He certainly had some title, viz., the interest of an undivided co-sharer. The learned Judge refers to the analogy of an alienation by a member of a joint family of an item of joint family property, but we find that the law applicable to such cases is also the same. In Mayne’s Hindu Law (tenth edition, page 498), the law is stated as follows: "A coparcener may alienate either his undivided share in the whole of the family property or his undivided share in certain specific family property, or the whole of a specific item of the family property. In all these cases, the alienee does not acquire an interest in the property so as to become a tenant-in-common with the members of the family entitled to possession, but only an equity to stand in his vendor’s shoes and to work out his right by means of a partition ..... in dividing the family properties the Court will no doubt set apart for the alienating coparcener’s share the property alienated if that can be done without any injustice to the other coparceners, and such property if it is so set apart, may be given to the transferee of the interest of such coparcener ..... It such property is not so set apart, then the alienee would be entitled to recover that property which was allotted to his vendor for his share, in substitution for the property that, was alienated in his favour." It is now necessary to discuss the rights of the mortgagee of a specific item of joint property from a co-sharer against the alienee of the property allotted to the mortgagor towards his share. For a proper determination of this part it is necessary to ascertain the nature of the right of the mortgagee. For a proper determination of this part it is necessary to ascertain the nature of the right of the mortgagee. Obviously it is not a right provided by any statute such as the right declared, in section 73 of the Transfer of Property"Act under which the mortgagee is entitled to claim payment of the mortgage money out of the sale proceeds where the mortgaged property is sold owing to failure to pay arrears of revenue or other public charges or the mortgaged property is acquired under the Land Acquisition Act. It is also clear that the right which the mortgagee obtains to realise the amount due to him from and out of the properties allotted to his mortgagor at a partition is not in the nature of a mortgage. According to the definition in section 58 of the Transfer of Property Act, a mortgage must be a transfer of an interest in specific immoveable property. The mortgagee’s right certainly cannot satisfy this definition. At the same time I do not think the mortgagee’s right is merely a personal right or personal equity (see Ramasami Iyer v. Bhagavathi Muthu Pillai1). In my opinion it would be a right to a security though it may not amount to a mortgage and would come within the definition of a ‘charge" in section 100 of the Transfer of Property Act, viz., where the immoveable property of one person is by act of parties or by operation of law made security for payment of money to another and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property The charge which a co-sharer who pays the arrears of rent acquires on the other co-sharers’ portions of the joint holding, the charge which arises in favour of a person entitled to contribution under section 82 of the Transfer of Property Act, the vendor’s charge for unpaid purchase money and the vendee’s charge over the prepaid purchase money are instances of charges based on rules of law and equity. This view is in accordance with the pronouncement of the Judicial Committee in Byjnath Lall v. Ramoodeen Chowdhry2. The Right Honourable Sir Montague E. Smith delivering the judgment of the Judicial Committee said: "Let it be assumed that such a partition has been fairly and conclusively made with the assent of the mortgagee. This view is in accordance with the pronouncement of the Judicial Committee in Byjnath Lall v. Ramoodeen Chowdhry2. The Right Honourable Sir Montague E. Smith delivering the judgment of the Judicial Committee said: "Let it be assumed that such a partition has been fairly and conclusively made with the assent of the mortgagee. In that case, can it be doubted that the mortgagee of the undivided share of one co-sharer......who has no privity of contract with the other co-sharers would have no recourse against the lands allotted to such co-sharers; but must pursue his remedy against the lands allotted to his mortgagor, and as against him would have a charge on the whole of such lands." It would then follow that a bona fide transferee for value without notice would be protected against such a charge. The second part of section 100 which was inserted by the Transfer of Property Amendment Act of 19129 only declared what was always considered to be the law. It says: " Save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such proporty has been transferred for consideration and without notice of the charge." On this point it is not necessary to refer to any decision other than the leading case of Byjnath Lall2. In that case certain portions of the property allotted at the partition was in the possession of persons who had purchased them at Court sales. It was argued before the Privy Council that the purchases by these respondents were made bona fide in open market and therefore their lands could not be proceeded against by the mortgagee. . Dealing with this part of the case their Lordships say as follows: “The only remaining question is, whether the respondents, other than the representatives of the mortgagor are in a better position than he would have been. They were all mere purchasers at execution sales of his right, title and interest.......and could acquire no higher rights than he possessed at the date of the purchase. They were all mere purchasers at execution sales of his right, title and interest.......and could acquire no higher rights than he possessed at the date of the purchase. In respect of such purchases, the question whether they were made with notice of the appellant’s title is not very material; but if it were, there is no doubt that they were made with such notice.” This passage to my mind clearly indicates that the charge which the mortgagee acquires cannot be enforced against transferees without notice other than of course purchasers at Court auction who cannot claim the benefit of the doctrine of purchase for value without notice. The same result is reached if the right of the mortgagee is considered to be an equitable right. The Courts of equity have always guarded against a merely equitable right being enforced against a bona fide purchaser for value without notice of such right. I agree with the observations of Varadachariar, J. in Ramanna Chettiar v. Manickam Chettiar1 on this point and in my opinion the actual decision of the learned Judge in that case can be justified by the concurrent findings of the lower Courts which he accepted that the alienees were bona fide purchasers without notice, though as I have already said I do not agree with him in his view that the doctrine of substituted security can never apply to the case of a mortgage by a co-sharer of a specific item of joint property. In the present case I am clearly of opinion that the father of the appellants must be deemed not to have had notice of the charge in favour of the plaintiff. The learned Subordinate Judge says that if an enquiry had been made he would have become aware of all the circumstances. I fail to see how any reasonable enquiry and examination of the registration records could have revealed to the purchaser any charge over the western half of the survey number which he was purchasing. This half fell to the share of his vendor at the partition and besides the mortgage under Ex. D-2 in respect of which there was a release, the only other encumbrance which would have been apparent is the existence of the security on two acres on the eastern side, which he was not purchasing. It is not suggested that the purchaser personally knew of all the transactions. D-2 in respect of which there was a release, the only other encumbrance which would have been apparent is the existence of the security on two acres on the eastern side, which he was not purchasing. It is not suggested that the purchaser personally knew of all the transactions. In my opinion the appellants would be entitled to the benefit of the protection in favour of a transferee without notice and the property in their hands cannot be proceeded against for the realisation of the amount due to the plaintiff. It may be that the plaintiff is entitled to relief against the mortgagors, but that aspect was not pressed before us. In the result the second appeal is allowed and the judgments and decrees of the lower Courts set aside in so far as they are against the appellants. The plaintiff will pay the costs of defendants 6 to 8 in all the Courts. The Chief Justice.-I agree. Horwill, J.-I too agree. K.S. ----- Appeal allowed.