PANCHAM Vs. ANSAR HUSAIN

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for sale brought on the basis of a mortgage deed, dated the 2lst of February, 1893, purporting to have been executed by two persons, Zauwar Husain and his mother Musammat Sadar-un- nissa, in favour of the plaintiff appellant, Pancham. According to the document Rs. 4,000 was the loan and it was secured on two classes of property. Firstly, pure zamindari in mauza Deoria and Chak Muhammad Panah, pargana Jhusi of the Allahabad district and 13 items of property which the mortgagors held as mortgagees from other persons. Among these 13 items were two mortgages of property in mauza Chintemanpur and Sidhaura. Out of the sum of Rs. 4,000, Rs. 1,400 purported to have been paid in cash prior to the registration and Rs. 2,600 purported to have been left with the creditor for payment of certain debts due from the mortgagors to other persons. They were as follows: Rs. 1,000 due to Nawaz Khan on account of his decree. Rs. 700 due to Ilahi Bakhsh of Utraon. Rs. 400 due to Mir Zahid Husain who held a mortgage of sir land in mauza Deoria; and Rs. 500 to Lala Janki Prasad, banker of the city of Allahabad.

(2.) According to the terms entered in the document the interest was to be 1 per cent, per mensem and the executants stipulated to repay the loan in 12 years. They further stipulated that they would pay annually a sum of Rs. 500 on account of principal and interest. The interest at 1 per cent, per mensem for one year amounted to Rs. 480, so that, this sum allowed for the payment of the annual interest and a little over. They stipulated that the amount thus paid annually should be setoff against the interest and the balance should be credited towards the principal. Further on in the document the mortgagors stipulated that if in any year they were unable to pay the interest, the interest might be treated as principal and would carry interest at the rate of 1 per cent, per mensem. Further on in the deed they further stipulated that, if there was any default in payment of the Rs. 500 per annum, the mortgagee was to have power, without waiting for the expiry of the stipulated period, to set aside all the other stipulations embodied in the document and to bring a suit in court to realize the entire principal together with interest and costs from the persons of the mortgagors and from the hypothecated property. Musammat Sadar-un-nissa and Zauwar Husain are both deal and the persons who are now sued are their heirs. They pleaded in defence that the deed had not been executed by Zauwar Husain and Musammat Sadar-uu- nissa. They pleaded that no consideration had passed; and they lastly pleaded that the suit was barred by limitation. We may note here that it is an admitted fact that all the 13 items of mortgagee rights which were hypothecated under the deed in suit have disappeared, that is, the original mortgagors have paid off the mortgages, but not to Pancham or any of the present plaintiffs. The plaintiffs have not made the original mortgagors of those properties parties to the present suit. The court below has held that Rs. 3,000 out of the Rs. 4,000 entered in the deed as consideration was actually paid. It has further held that the deed was duly executed by Zauwar Husain and Musammat Sadar-un-nissa. It has held that the suit is barred by limitation.

(3.) The plaintiffs in their appeal urge- That the Rs. 1,000 of consideration which the court below has disallowed has been established. They further plead that the suit is not barred by limitation.