BHARAT INDU Vs. HAKIM MOHOMMAD HAMID ALI KHAN

JUDGEMENT

(1.) The suit which gave occasion to the present appeal was brought by the plaintiff, now the first respondent, as assignee of a mortgage executed on the 80th August, 1895, to one Wilayat Ali Khan in favour of one Nazir Ali for Rs. 5,000 and interest. The assignment was made by deed of sale dated 24th January, 1900; and the suit was brought to recover the sum due upon the mortgage or to obtain the sale of the mortgaged property.

(2.) There were several defendants; but those with whom their Lordships are concerned are the present appellants, heirs of one Babu Durga Prasad who had lent money to Wilayat Ali Khan upon mortgage of other properties, and had brought them to sale, and as the proceeds we re insufficient to realise the sum due upon his mortgage, had obtained a further personal decree for the balance and had thereunder attached the properties which)D were subject to the mortgage to the plaintiffs in this suit. Ultimately these attached properties appear to have been brought to sale and then Durga Prasad or his heirs became the auction purchasers. The title of these heirs is, therefore, subsequent to that of the plaintiff and their defence rest upon their ability to displace the mortgage upon which the plaintiff relies.

(3.) Two objections are taken on their behalf to the plaintiff s title. One is that the mortgage upon which the plaintiff relies was never duly registered. On this point both the Subordinate Judge and the High Court at Allahabad decided in favour of the plaintiff. The other point is that the mortgage in question was a sham transaction under which no money passed, executed by Wilayat Ali Khan to a nominal mortgagee in order that it might form a protection for that part of his estate against his other numerous creditors. Upon this point the learned Subordinate Judge decided in favour of the defendants and dismissed the suit; but upon appeal the High Court thought otherwise and made a decree in favour of the plaintiff in the usual terms of a decree in a mortgage suit. Hence the present appeal.