Impartible Estate Succession and Mortgage Interpretation: survivorship and a sale-on-default clause sustained maintainability and relief.

Succession to an impartible estate was treated as governed by the general law for choosing the successor, while impartibility affected only the mode of holding; on that basis, succession by survivorship was accepted and the absence of a succession certificate did not bar maintainability. The instrument securing payment was also construed as a mortgage rather than a mere charge because it tied the debt to the property and indicated a right of sale on default, allowing relief under Order XXXIV, Rule 6. The adverse order was set aside and the matter remanded for determination of the amount recoverable.

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Issues: (i) whether the appellant, having succeeded to an impartible estate by survivorship, could maintain the application without a succession certificate; (ii) whether the document relied on created a mortgage or only a charge so as to sustain relief under Order XXXIV, Rule 6.

Issue (i): whether the appellant, having succeeded to an impartible estate by survivorship, could maintain the application without a succession certificate.

Analysis: The ruling treated the succession to the headship of a joint Hindu family estate as governed by the general law for selection of the successor, while the custom of impartibility affected the mode of holding after succession. On that basis, the appellant was treated as having taken the estate by survivorship, and the absence of a succession certificate did not bar maintainability.

Conclusion: The objection based on want of a succession certificate was rejected in favour of the appellant.

Issue (ii): whether the document relied on created a mortgage or only a charge so as to sustain relief under Order XXXIV, Rule 6.

Analysis: The document secured payment by reference to the property and restrained alienation until the dues were paid. Applying the distinction between a charge and a simple mortgage, the ruling held that a simple mortgage may be inferred where the instrument shows a right to have the property sold on default, even if no express transfer is stated in formal terms. The language and the use of the word equivalent to a mortgage supported that inference.

Conclusion: The document was held to create a mortgage, not merely a charge, and the appellant was entitled to proceed under Order XXXIV, Rule 6.

Final Conclusion: The appeal succeeded, the adverse order was set aside, and the matter was sent back for determination of the amount recoverable.

Ratio Decidendi: In an impartible estate, survivorship governs the choice of successor under the general law, while impartibility affects only the mode of enjoyment; and an instrument that effectively secures the debt by giving a right to sale on default may amount to a simple mortgage even without express formal transfer language.

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