Judgment :- 1. A nice question arises in this second appeal as to the manner of working out the equitable principle of 'substituted security' when a portion only of the undivided share of a cosharer has been mortgaged but a different property is allotted to him in partition between the cosharers. 2. The facts are not in dispute here. The plaintiff and defendants 1 to 3 were cosharers of the properties described in plaint schedules A & B and others. Defendants 1 & 2 mortgaged their shares in the plaint A schedule property on February 1, 1947, to the plaintiff for a sum of Rs. 3000/-. At the time of that mortgage, a suit for partition of the common properties of the plaintiff and defendants 1 to 3 was pending. By the final decree in that suit passed on September 19, 1947, the plaint A schedule property was allotted to the 3rd defendant; items 1 to 3 of the plaint schedule B were allotted to the 1st defendant; and a sum of Rs. 2625 odd was awarded to the 2nd defendant, to be collected from the plaintiff, the 1st defendant and the 3rd defendant in the sums of Rs. 366.29 p., Rs. 647.86 p. & Rs. 1610.86 p. respectively. The present suit is to enforce the mortgage after setting off the sum payable by the plaintiff to the 2nd defendant (viz., Rs. 366.29 p., therefrom. The Munsiff decreed the claim against items 1 to 3 of plaint B schedule, giving a charge for Rs. 1610.86 p. on the plaint A schedule property also. The 1st defendant's appeal before the Subordinate Judge, Cochin, did not succeed. He has come up in second appeal; and the question here is whether the principle of substituted security entitles the plaintiff to a charge on all the properties allotted to the 1st defendant in partition even though the pre-partition mortgage was only of his undivided share in one of the common properties. The Courts below have held him entitled to a charge on all the properties allotted in partition; and its correctness is challenged here. 3. The principle of "substituted security" is not governed by any statute but has been followed as an equitable principle throughout India when a cosharer has mortgaged one property but is not given that one but another at partition between himself and the other cosharers. 3. The principle of "substituted security" is not governed by any statute but has been followed as an equitable principle throughout India when a cosharer has mortgaged one property but is not given that one but another at partition between himself and the other cosharers. The leading case on the subject is Byjnath Lall v. Ramodeen Chowdry 1 I.A. 106 where the Judicial Committee of the Privy Council observed: "Gopal Narain, the mortgagor, was, on the 24th of September, 1860, when he executed the deed of conditional sale, the undisputed owner of an 8-anna undivided share in an estate consisting of three uslee mouzahs, called Gunniporebeja, Pemburinda, and Tajpore Ruttanpore... he executed a conditional sale of 'the whole and entire 8 annas out of the whole 16 annas severally of mouzahs Gunniporebeja and Pemburinda', as a security for the sum of 26,050 company's rupees, expressly excepting from the operation of the deed the 8 annas of Tajpore Ruttunpore... Before the execution of this mortgage, and as early as September, 1858, some of the other sharers in the estate had commenced proceedings to effect a butwara, or partition of the whole estate....The partition was finally made....Its effect as regards Gopal Narain Singh was to allot to him, to be held in severalty, and in lieu of his undivided moiety of the whole estate, the whole of Mouzah Pemburinda, the whole of the principal mouzah of Tajpore Ruttunpore Now, what was the subject of this mortgage? It was an undivided moiety in two out of three villages forming a joint and undivided estate.... It is therefore 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 took 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.... Let it be assumed that such a partition has been fairly and conclusively made with the assent of the mortgagee. 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-cosharer (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 cosharers, would have no recourse against the lands allotted to such cosharers; 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 the subject of the pledge in the new form which it had assumed.... In the present case there is not a suggestion of fraud, nor is there any ground to suppose that the partition was other than fair and equal. The mortgagee is content to accept what has been allotted in substitution of the undivided interest as the fair equivalent of it. Their Lordships are of opinion, not only that he has a right to do so, but that this, in the circumstances of the case, was his sole right, and that he could not successfully have sought to charge any other parcel of the estate in the hands of any of the former co-sharers. There is, therefore, no question here of election, or of the time when the election was made ...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. No such difficulty, however, exists in the present case, inasmuch as the whole of Tajpore Ruttunpore was allotted to Gopal Narain Singh on the partition. He was already entitled to an 8-annas undivided share in this mouzah, which, being excluded from the mortgage, is not claimed by the appellant. But it follows from this that whatever portion of this mouzah was allotted to him in excess of those 8 annas must have been so allotted in substitution of his interest in the mouzahs Gunniporebeja and Pemburinda, and, therefore, became subject to the mortgage." The indication is clear in this passage that the substituted security is only of the lands allotted in substitution of the mortgage premises. 4. 4. Mohammad Afzal Khan v. Abdul Rahman AIR. 1932 P.C. 234 reiterated the ratio of the above decision. 5. Mr. Justice Asutosh Mookerjee, with the concurrence of Mr. Justice Holmwood, has explained the proposition very lucidly in Hakim Lal v. Ram Lal 6 C.L.J. 46 thus: "The mortgagee's, therefore, entitled to proceed against what may be called the substituted security. The question, however, arises how this substituted security is to be ascertained. To illustrate the principle applicable to cases of this description, we may, in the first place, take a case where a person mortgages the whole of his undivided share in an estate which comprises several villages say A, B, C, D, E, F. Upon partition, if the mortgagor gets a share in some of the villages only, - say, two, A and B - in lieu of his share in the six, it is obvious that the substituted security is his share in the two villages. The mortgagee in such a case would be entitled to proceed against the shares in A and B which might be allotted to the mortgagor. Next, take a case which is not quite so simple. Suppose a person mortgages, not his entire undivided share in the whole property of six villages, but only a fraction of his share. In such a case, the substituted security is clearly a corresponding fraction of the share allotted -to the mortgagor in the two villages; in other words, if the mortgage covers less than the entire interest of the mortgagor in the whole estate held in common, when the estate is divided, the mortgage will cover a proportional interest in the whole of the part allotted to the mortgagor. Next, take a case slightly more complex. Suppose a person mortgages his share in not all but some only of the villages comprised in the estate. Assume that he mortgages his share in A & B. If, upon partition, A and B are allotted to the mortgagor, but his shares in those two villages are enlarged because he loses his shares in C, D, E and F, the mortgagee is obviously entitled to proceed only against the original shares of A and B comprised in his security; clearly his security is not enlarged. The three illustrations we have just given appear to us to be based on perfectly intelligible grounds. The three illustrations we have just given appear to us to be based on perfectly intelligible grounds. The same view has been adopted in Torrey v. Cook (116 Mass. 163), Randell v. Mallet (14 Maine 51) and Howse v. Dew (90 Alabama 178; 24 Am. St. Rep. 783) to which we refer, not as authorities binding on this Court, but only as indicating that the principles in question have been treated as consistent with equity, justice, and good conscience. Lastly, take a still more complex case which is the case now before us. Suppose the mortgage comprises the shares of the mortgagor in A and B. and that upon partition, the mortgagor is allotted shares in A, D, E and F. What is the substituted security in a case of this description, and how is it to be ascertained? Upon the anology of the principles deductible from the illustrations which we have just given the substituted security ought to be calculated as follows. Determine, in the first place, the value of the shares of A and B comprised in the mortgage security at the date of the partition. Be it observed, that it is not the value at date of the execution of the mortgage; because if between the date "of the mortgage and the date of the partition when the substitution takes place, there has been any accession to the property, the mortgagee is entitled to the benefit thereof. Determine, in the second place, the value of the shares allotted to the mortgagor upon partition in A, D, E and F. Ascertain, in the third place, what share of the villages A, D, E and F is equivalent in value to the shares of A and B comprised in the mortgage security. The shares in A, D, E and F so determined, may justly be assumed to be the substituted security against which the mortgagor is entitled to proceed. This is manifestly just. If the mortgagee is restricted in his remedy to any particular villages out of A, D, E and F, he may have just grounds for complaint. The shares in A, D, E and F so determined, may justly be assumed to be the substituted security against which the mortgagor is entitled to proceed. This is manifestly just. If the mortgagee is restricted in his remedy to any particular villages out of A, D, E and F, he may have just grounds for complaint. As a matter of principle, it cannot be asserted that the share in B which the mortgagor has lost is represented by a share of D, any more than by a share of E and F, and as upon partition he has been allotted shares in A, D, E and F, his shares in B and C have been transformed into and are represented by shares in A, D, E, F, unless his share in A, after partition, is precisely equal to his share in A before partition, in which event his interest in B and C would be represented by shares in D, E, and F. If this principle is applied to the facts of the case before us, the rights of the parties are easily adjusted ... It is well settled that a mortgagee, who has a security upon two or more properties which he knows belong to different persons, cannot release his lien upon one so as to increase the burden upon the others without the privity and consent of the persons affected." 6. The dicta in Hakim Lal v. Ram Lal 6 C.L.J. 46 have been cited in Koru Issaku v. Gottumukkala Seetharamaraju AIR. 1948 Mad.1 with approval, when Rajamannar, J. (as he then was) observed: "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 6 C.L.J. 46, 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." 7. Asutosh Mukerjee, J. worked out in 6 C.L.J. 46, 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." 7. Rup Chand Mullick v. Madan Mohan Dutt AIR. 1960 Calcutta 351, to which reference was made at the Bar, made no reference to Hakim Lal v. Ram Lal, 6 C.L.J. 46 and I find nothing in that decision which affects the correctness of the formula laid down by the very learned Judge Asutosh Mookerjee. 8. Following the ratio of the precedents in 1 I.A. 106 and 6 C.L.J. 46, I accept this second appeal. The plaintiff is not entitled to a charge for the suit claim on all the properties allotted to the 1st defendant in family partition, viz., items 1 to 3 in the plaint B schedule, but only on such part of those properties as would represent his share in the mortgaged property according to the conditions on the date of the partition. Of course this necessitates ascertainment of the proportion of the value of the property under the mortgage to the value of the mortgagor's share in all the common properties at the time of the partition, which is here the date of the final decree in the partition suit referred to above. Over the remainder of the 1st defendant's properties the plaintiff will, in lieu of the mortgage by the 2nd defendant, have a charge for Rs. 647.86 p. in the suit claim. All sums, inclusive of the sum that the plaintiff owes to the 2nd defendant for which set off has been claimed, will bear interest at 5% per annum - from date of mortgage as regards the mortgage amount and from the date of final decree in partition as regards the other sums. The second appeal is allowed to the extent indicated above, and dismissed in other respects. The decree of the court below as against the third defendant, not being subject of this appeal, will stand. In the circumstances of this case, the parties will bear their respective costs here. Partly allowed.