AHRONEE SHEMAIL Vs. SHEIKH AHMED OMER

JUDGEMENT

(1.) This was a suit brought by the plaintiff to recover Rs 6,000 as principal and Rs. 2,925 as interest on a mortgage passed by defendant No, 1 as executor of one Sheikh Aboo Baker bin Saeed Ali who left two documents, one relating to Aden property dated May 12,1910, and the second relating to Hadramot property dated September 12, 1913. On January 19, 1920, defendant No, 1 obtained probate of the document relating to Aden property dated May 12, 1910, annexing a copy of the other document relating to Hadramot property, dated September 12, 1913. On February 17, 1920, defendant No, 1 as executor and constituted attorney of defendants Nos. 2 to 7 executed a mortgage of the property Grant No. 53 at Aden in favour of the plaintiff to secure an amount of Rs. 6,000.

(2.) The plaintiff filed Suit No. 77 of 192 7 in March 1927 in the Court of the Senior Judge at Aden. A written statement was filed by defendant No. 1 on behalf of himself and defendants Nos. 5 and 6, and defendants Nos. 2, 3, 4 and 7 filed a separate written statement. On July 25, 1927, issues were raised in the case, and the case was adjourned to August 8, Neither party produced any evidence in the ease, and the case was adjourned to September 5, 1927, for arguments, On August 25, the plaintiff applied for a commission to the District Court of Tarim and also to the District Court of Hyderabad to examine the witnesses who attested the power-of-attorney passed by defendants Nos. 2 to 7 in favour of defendant No. 1. That application was reject-ed on the ground that the hearing was finished and the case was adjourned for arguments. On September 15, the arguments were handed in, and on the 26 the Court delivered judgment dismissing the plaintiff's suit.

(3.) The Senior Judge was of opinion that the will imposed a restriction on the executor not to mortgage the property, and that defendants Nos. 2, 3, 4 and 7 could avoid the mortgage, as permission of the Court was not obtained under Section 307 of the Indian Succession Act of 1925. The learned Judge also held that defendants Nos. 2 to 7 did not execute the power-of-attorney authorising defendant No. 1 to mortgage the property. He, therefore, dismissed the plaintiff's suit.