ABDUL SAEED KHAN Vs. MOHMOOD ALI

JUDGEMENT

(1.) This appeal has been referred to a Full Bench by an order of two learned Judges of this Court dated 29th March 1949 in view of the importance of the question arising upon the true interpretation of Sections 4, 8 and 9, U. P. Debt Redemption Act.

(2.) A short pedigree which will serve to elucidate the facts is given below : BANDE HASAN MARRIED TO BATULAN _______________________________|___________ | | Sarfarazan Imtiazan | | ___|______________ ______________|__________ | | | | | Wilayatullah Shaflullab Nauaher Ali Maqsud Ali Yusuf Ali (defendant 4) (defendant 3) (deceased) (plaintiff 2) (deceased) | Mahmud Ali (plaintiff 1)

(3.) On 19th June 1886, Bande Hasan mortgaged with possession 30 Bighaa and 14 Biswas of Qasba Muhamdi, district Kheri, to Abdul Majid, now represented by his son Abdul Saeed Khan, defendant 1 for Rs. 600 at 12 per cent. per annum. He also executed a deed of further charge for Rs. 406 at the same rate of interest on 13th August 1890, and his widow Batulan executed another deed of further charge for Rs. 163/5/- on 6th May 1891. Shafiullah and Wilayatullah, who had succeeded to the half share of their mother, sold that share on 8th November 1935, to Mahmud Ali. Mahmud Ali also acquired by sale one-fourth of the half share inherited by Maqsud Ali with the result that three-fourth share of the entire property came into the possession of Mahmud Ali and the remaining one-fourth remained with Maqsud Ali, Although Abdul Majid was the ostensible mortgagee, it is not disputed that his brother Abdul Wahid owned the mortgagee rights with him. Abdul Wahid made a waqf of his mortgagee share constituting his wife Fakhr Jahan Begam as mutawalli. In 1936 Mahmud Ali and Maqsud Ali sued for an account o| the money under Section 33, U. P. Agriculturists' Relief Act, against Abdus Saeed Khan and Fakhr Jahan Begam. Shafiullah and Wilayatullah, who were impleaded originally as parties to the suit were discharged. On 23rd December 1940, the Court found that RS. 500 were due to Abdus Saeed Khan and Rs. 628/2/9 to Fakhr Jahan Begam from the plaintiffs. Accordingly the Court declared these amounts as being still payable by the plaintiffs to the defendants under Sub-section (2) of Section 33, The U. P. Debt Redemption Act came into force on 1st January 1941 (see Section 1). Mahmud Ali and Maqsud Ali thereafter applied under Sections 8 and 9 of the said Act for reduction of interest and for the amendment of the decree. On 26th July 1912, Abdus Saeed Khan and Fakhr Jahan Begam filed a declaration under Section 4 of the Act stating that the application under Section 8 was not maintainable as the decree was not executable. This declaration was rejected by the learned Munsif who also held that as the defendants had been overpaid, nothing was due to them from the plaintiffs. No other point was pressed before that Court. The lower appellate Court upheld the decision.