FAHMIDA BEGAM Vs. CHOBEY SAMBHO NATH

JUDGEMENT

(1.) Learned counsel for the appellants has raised a very ingenious point in the case but we do not think that the point has any force.

(2.) On 6-1-1908 one Zebulnissa made a simple mortgage of three houses and seven Sihams of zamindari share to Fayyaz Ali Khan and Wajid Ali Khan mortgagees for Rs. 2000/-. On 19-1-1921 she sold to Wajid Ali Khan two Sihams out of the seven Sihams and transferred to the two mortgagees Fayyaz Ali Khan and Wajid Ali Khan the three houses mortgaged for Rs. 5000/-. The only property that remained thus encumbered was five Sihams zamindari. The plaintiffs are the legal representatives of Fayyaz Ali Khan mortgagee who has died and they claim that they have acquired the equity of redemption from Wajid Ali Khan of his interest in the mortgage. No date is mentioned of this transfer of mortgagee rights and it is not necessary for us in this case to consider this matter further, though it is very doubtful whether there was any such transfer. In the year 1922 Srimati Zebulnissa is said to have gifted to Wajid Ali the remaining five Sihams of the Zamindari and Wajid Ali on the basis of the oral gift got his name mutated in the village papers and got possession of the property. He remained in possession till 1936 when he filed an application under the U. P. Encumbered Estates Act and showed these five Sihams as property belonging to him. Neither Fayyaz Ali nor the plaintiffs made any application to be included in the list of creditors. No claim to the five Sihams having been made by anybody the property was included in the list of properties belonging to Wajid Ali and the list of properties was sent to the Collector, from which the debts due to the landlord-applicants from. Wajid Ali were to be satisfied. The Collector in satisfaction of the decrees passed by the Special Judge transferred these five Sihams to, we understand, the defendants first set. The plaintiffs got a suit filed in the year 1944 for realization of Rs. 2956/- on the basis of the mortgage dated 6-1-1908 and claimed that they were entitled to sell up these five Sihams in the possession of the defendants first set in satisfaction of the amount due under the mortgage. The lower appellate court dismissed the suit on the ground that the plaintiffs not having claimed the amount under the Encumbered Estates Act, the debt must be deemed to have been satisfied.

(3.) Learned counsel has urged that under the U. P. Encumbered Estates Act a secured creditor has been given the option either to claim the money in the Encumbered Estates Act proceedings or to stand outside it and then to proceed to enforce his rights under the law by an independent suit. He has drawn our attention to Sections 4, 6, 7, 8, 9 and 13 where the provision is made as regards claims against "the persons or the property of the landlord". Learned counsel has urged thst while in the sections mentioned above claims against the person as also against the property are mentioned, in Section 13 claim against the person only is included and not claim against the property so that if a secured creditor has not claimed his debt under the Encumbered Estates Act proceedings, his remedy to file a suit to enforce the security is not barred. Section 13 reads as follows :