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TMI Blog1922 (2) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... btained a decree and the properties were sold on the 17th September 1915. The sale did not satisfy the claim of Raja Durga Prosad as against the respondent and there still remained a sum of ₹ 4,175 due to Raja Durga Prosad. Raja Durga Prosad, it appears, died after the sale of the properties and the present appellant has succeeded to the Raja by survivorship. On the 15th July 1918 the appellant presented an application under Order XXXIV, Rule 6, for recovery of the sum of ₹ 4,175 from the respondent. The learned Subordinate Judge being of opinion that the appellant could not maintain the application without at Succession Certificate, has dismissed the claim of the appellant. 3. I am of opinion that the decision of the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, that is to say, touch the question of how to select the head of the family in a joint family is shown by the long list. of authorities above cited, and there is, in their Lordships' view no necessary logical deduction from the decisions in Sartaj Kuan Deoraj Kuari and the second Pittapur cases which forces them to an opposite conclusion. Their Lordships quoted with approval the decision in the case of Naraganti Achammagaru Venkatachalapati Nayanivaru where the proposition was laid down in the following words: Where property is held in co-parcenary by a joint Hindu family there are ordinarily three rights vested in coparceners--the right of joint enjoyment, the right to call for partition, and the right to survivorship. Where imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raj there was no restriction on the power of alienation by the member of the family who was on the gaddi and was in possession, in respect that there was no such right of co-ownership in the other members as to give them a title to prevent such alienation. Their Lorpships reviewed the cases subsequent to Sartaj Kuari's case 10 A. 272 : 15 I.A. 51 : 5 Sar. P.C.J. 139 : 12 Ind. Jur. 213 : 6 Ind. Dec. (N.S.) 182 (P.C.) and came to the conclusion that the rules laid down in the earlier cases on the question of succession have not been touched by Sartaj Kuari's case 10 A. 272 : 15 I.A. 51 : 5 Sar. P.C.J. 139 : 12 Ind. Jur. 213 : 6 Ind. Dec. (N.S.) 182 (P.C.). They thought that the key-note of the position was what was laid down in the N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion it is impossible to uphold this view having regard to the decision of the Judicial Committee in the case of Baijnath Prasad Singh Tej Bali Singh. It is unnecessary to decide whether that case was rightly or wrongly decided, inasmuch as the question of succession was not raised in that case and all that was involved was the question whether any portion of the property in the hands of a holder of an impartible raj could be regarded as assets which the creditor could seize in execution of a decree obtained against his predecessor-in-title. We are in this case not concerned with that question. If we were we would be bound to follow the decision of the Judicial Committee which lays down in express terms that the question of selection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only gives right to payment out of a particular fund or particular property without transferring that fund or property, a mortgage is in essence a transfer of an interest in specific Immovable property. The line of division in England between a charge and a mortgage is a very clear one; but in this country the division is not so well-marked. It has been pointed out that there is very little difference, if any, between a charge and a simple mortgage as defined in Section 58 of the Transfer of Property Act; and that, in a simple mortgage, the interest transferred is the right to have the property sold. If that be so, it becomes a question of some nicety to distinguish between a simple mortgage and a charge. In the case of Dalip Singh v. Baha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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