Panckridge, J - (1.)This suit raises a question of some difficulty relating to a Hindu widow's power to alienate the estate to which she has succeeded as her husband's heir. It is necessary to set out the facts of the case in some detail. On 28 April 1922 the plain-tiff advanced a sum of Rs. 1600 to three persons named Kaliprosono Dutt, Keshub Chandra Dutt and Kripanath Dutt who, as their father's heirs, were the joint owners of two properties, Nos. 76-A and 73/3, Dharmahatta Street. The advance was secured by a mortgage of No. 73/3, Dharmahatta Street. In August 1928 Kripanath Dutt died intestate and childless, his heir and legal representative being his widow, defendant 1. On 12 February 1930 the plaintiff instituted a suit on his mortgage and obtained a preliminary decree on 5 June 1931. Meanwhile, on 28 April 1930, defendant 1 had instituted a partition suit against the other members of her husband's family, in which she asked for partition and other reliefs. Her brothers-in-law filed a written statement, in the course of which they alleged that the joint estate was liable to satisfy certain debts. On 19th March 1931 defendant 1 applied in the partition suit and obtained leave to raise a loan of Rs. 1500 on the mortgage of her interest in the premises 76-A and 73/3, Dharamhatta Street. On 15 April 1932 a mortgage was executed in pursuance of the leave obtained by defendant 1, the mortgagee being defendant 2, Debendra Nath Ash. By the deed, defendant 1, as the beneficial owner, conveyed to defendant 2 all the undivided share of and in the Dharmahatta Street properties, to hold the same unto and to the use of defendant 2 absolutely in fee simple subject to the proviso for redemption thereinafter contained.
(2.)On 20 May 1932 the plaintiff obtained a final decree in respect of his mortgage of No. 73/3 and on 31 March 1933, he purchased the mortgaged premises in execution thereof. A preliminary partition decree had meanwhile been made in defendant l's suit. By that decree defendant 1 was declared entitled to one equal third share in the properties in suit and there were the usual directions for partition or sale. On 20 May 1933 defendant 2 filed a suit on his mortgage against defendant 1 and obtained a preliminary mortgage decree in August 1934.
(3.)On 17 September 1934 the present plaintiff made an application stating, as was the fact, that the price realized by the sale of No. 73/3 was insufficient to satisfy his claim under the final decree, and asking for a personal decree under Order 34, Rule 6, Civil P. C, against the mortgagors, and an order was made that the mortgagors should pay a sum of Rs. 676.8-0 with interest at the rate of 6 per cent. per annum from 1 April 1933 together with the costs of the mortgage suit and the costs of the application, the liability of defendant 1 in this suit being limited to the estate of her deceased husband, Kripanath Dutt. In execution of this order, the plaintiff has attached the share of defendant 1 in 76-A, Dharamhatta Street. He has now filed this suit in which the principal relief asked is a declaration that he is entitled to satisfy his personal decree out of defendant l's undivided share of 76-A, Dharamhatta Street in priority to the claim of defendant 2 under the mortgage of 15 April 1932.