MUSSAMMAT SUKHI Vs. GULAM 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 January 3, 1874, a June, 10, 1875, two simple mortgages in favour of Kirpa Ram, now deceased, the husband of the plaintiff. Subsequently, on January 15, 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 1888. 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. 1200 a year for maintenance, and in security of this obligation they hypothecated the properties, including the property in question, by way of mortgage. The mortgage was dated October 14, 1902, and was duly registered. In 1910 the respondents, the mortgagees in the mortgage of 1888, brought a suit on their mortgage against Jag Ram and Net Ram, but omitted to implead the plaintiff. Jag Ram and Net Ram put forward the mortgages of 1874 and 1875 as a shield and accordingly the respondents had to pay into the Court the sum of Rs. 2954. Having so done and Jag Ram and Net Ram not choosing to redeem the respondents were adjudged owners of the property. This was finally settled in 1913.

(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. 1,00,00. 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 1913, 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. 2954 which they had paid to 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 foreclosure decree of the property. Appeal has now been taken to His Majesty in Council.