SUKHI Vs. GHULAM SAFDAR KHAN

JUDGEMENT

(1.) THIS is a suit by a mortgagee, Musammat Sukhi, to sell a property called Rasulpur. The facts out of which the suit arises are as follows.

(2.) NAND Ram and others, the owners of the property in question and of other properties, executed on the 3rd of January, 1874, and the 10th of June, 1875, two simple mortgages in favour of Kirpa Ram, now deceased, the husband of the plaintiff. Subsequently, on the 15th of January, 1883, they executed another mortgage of the property in question alone by way of conditional sale in favour of the first respondent, Ghulam Safdar Khan and another person whom the second and third respondents now represent. These mortgages were all duly registered. In 1886, Kirpa Ram, the mortgagee, raised an action for payment and sale, but he omitted to implead the holders of the mortgage of 1883. In that suit he obtained a decree for sale. The property was sold and Kirpa Ram himself purchased at the judicial sale. Kirpa Ram died leaving a will, dated in 1895, in favour of his widow, the plaintiff. She obtained probate in 1898. She thereafter made a gift of the properties to which she had succeeded, including the property in question to Jag Ram and Net Ram, her nephews. They at the same time covenanted to pay her Rs. 1,200 a year for maintenance and in security of this obligation they hypothecate the properties including the property in question by way of mortgage. The mortgage was dated the 14th of October, 1902, and was duly registered.

(3.) IN 1914, the plaintiff raised the present suit in respect of her mortgage, the sums due under the agreement to pay maintenance amounting to over Rs. 10,000. It was not defended by Jag Ram and Net Ram, but appearance was made for the respondents who held the property in virtue of the decree they had obtained in 1918, upon their mortgage of 1883. The Subordinate Judge decreed the suit, but on condition that the plaintiff repaid to the respondents the sum of Rs. 2,954 which they had paid co the first mortgagees. On appeal the High Court altered this by adding the condition that the plaintiff should also pay the sum of Rs. 8649-13-7, being the sum found due to the respondents in the suit of the mortgage of 1883, in respect of which they were given the for closure decree of the property. Appeal has now been taken to His Majesty in Council.