HAIBAT SHAH Vs. BOHRA TARACHAND

JUDGEMENT

(1.) This appeal arises out of a suit for sale upon the basis of a mortgage dated 26 August 1912, executed by Jamaiat Shah, Safdar Shah and Saadat Shah alias Nabban, in favour of Tara Chand the plaintiff, to secure a loan of Rs. 500. The mortgagee brought a suit on 25 August 1924 impleading Saadat Shah, one of the mortgagors, and impleading defendants 2-4 as being the heirs of their father Jamait Shah deceased, and also as being heirs of their uncle Safdar Shah deceased.

(2.) The suit was resisted upon various grounds with which we are not concerned in this appeal. During the pendency of the suit aadat Shah alias Nabban. died. He is said to have died on 13 April 1926. No application was made for bringing his legal representative upon the record until 26 January 1927, when the plaintiff made an application stating that Saadat Shah had died and asking for time to ascertain the names of his heirs. On 3 February 1927 the plaintiff made a fresh application stating that Saadat Shah had no heirs other than defendants 2 - 4 his brothers, who were already upon the record, and asking that a note should be made that defendants 2-4 are his legal representatives. Saadat Shah left a widow Mt. Jamila Begam, but the plaintiff did not admit that she was the legally married wife of Saadat Shah and therefore made no application for impleading her as one of his heirs. An issue was framed on the question whether Jamila Begam was the widow of Saadat Shah and the trial Court on taking the evidence decided the issue in the affirmative. The question then arose whether the suit had not abated wholly or partly in consequence of the fact that Saadat Shah's widow had not been impleaded. The trial Court found that from the terms of the mortgage deed itself it appeared that Saadat Shah had no interest in the hypothecated property and therefore it was unnecessary to implead Jamila Begam his widow. The trial Court accordingly decreed the claim with costs. Defendant 2, Haibat Shall appealed to the Court below contending that the suit had abated on the expiry of three months from the death of Saadat Shah, as his widow had not been impleaded, and that the trial Court had wrongly held that Saadat Shah had no interest in the property in suit.

(3.) The Court below agreed with the trial Court in finding that Saadat Shah had no interest in the property hypothecated. In our opinion this finding was clearly erroneous and based upon a misapprehension. Although Saadat Shah had no interest in the hypothecated property at the date of the execution of the mortgage deed in suit, he was undoubtedly one of the heirs of his father, Jamiat Shah, who was one of the mortgagors, and he must have been one of the heirs of his uncle Safdar Shah to the same extent as his brothers, defendants 2-4, who were admittedly heirs of Safdar Shah. It is impossible to hold therefore that Saadat Shah had no interest in the hypothecated property by right of inheritance from his father and his uncle, who were the original mortgagors.