BHUP SINGH Vs. CHEDDA SINGH

JUDGEMENT

(1.) The question which arises in this appeal is a simple one but is by no means easy of solution.

(2.) The facts are these: On the 10th of February, 1904, Haidar Shah executed a mortgage in favour of Lachman Prasad, the predecessor in title of the plaintiffs, and among the property mortgaged was a share in the village of Hasanpur Ladauki the extent of which was two-fifths of 8/15. The present suit is for enforcement of this mortgage.

(3.) The property comprised in the mortgage originally belonged to Sardar Bahadur Mir Khan who died on the 14th of June, 1889, leaving considerable property and a large number of heirs, namely, eight) sons, eight daughters and three widows. Among the sons were Haidar Shah aforesaid and Amir Muhammad Khan, The latter executed a mortgage on the 7th of March, 1889, in favour of Sant Lal and Moti Lal in respect of several items of property, one of which was an eighth share in the aforesaid village of Hasanpur Ladauki, Sant Lal and Moti Lal brought a suit for sale on the basis of that mortgage and obtained a decree for sale on the 3rd of May, 1901. In execution of this decree they caused a 24/192 share in Hasanpur Ladauki to be sold by auction on the 20th of July, 1903, and themselves purchased it. Their widows sold that share to the defendants of the 4th party, who, under a decree subsequently obtained, are in possession of a 14/192 share. Meanwhile, in 1896, Nur Begam, one of the widows of Sardar Bahadur Mir Khan, and Wazir Begam, one of his daughters, brought a suit for partition of their shares in the estate of Sardar Mir Khan against his other heirs and obtained a decree on the 17th of February, 1898. This decree was made final on the 18th of July, 1903, that is, two days before the auction sale held in execution of Sant Lal and Moti Lal s decree. Under this final decree which was passed after the death of Nur Begam, who appears to have died after the passing, of the preliminary decree, the whole of the village Hasanpur Ladauki was allotted to the share of Nur Begam and Wazir Begam; and Haidar Shah, who was brought on the record as one of the legal representatives of Nur Begam, acquired a 2/5ths share out of 8/15 in the aforesaid village. It is this share which he mortgaged to the plaintiff s predecessor in title on the 10th of February, 1904, and it is this share the sale of which is sought by the plaintiffs in enforcement of that mortgage.