SHAH MUHAMMAD ABBAS Vs. MUHAMMAD HAMID

JUDGEMENT

(1.) In October 1895, Imam Jan mortgaged her shares in two villages, Jamalpur and Bangaon to, Akbar Ali for Rs. 700. Subsequently, the share in each village was made a separate mahal of 16-annas. On her death, a 10-annas share in the mahalin Jamalpur and a 7 1/2-annas share in the mahal in Bangaon devolved upon two ladies, Musammat Hajira and Musammat Walia. The remainder of her property devolved upon other people with whom we are not concerned. On July 7th, 1893, Hajira and Walia mortgaged a 7 1/2-annas share in Jamalpur and a 5- annas odd share in Bangaon to Abbas Ali for Rs. 600 and on January 26th, 1893, they mortgaged a 10-annas share in Jamalpur and a 7 1/2-annas share in Bangaon to the same person for Rs. 393. On April 10th, 1900, they sold the share in Bangaon to the plaintiffs, who are the heirs of Akbar Ali, for Rs. 1,800. Of this amount, Rs. 199 were paid by the plaintiffs in cash; Rs. 515 were retained by them on account of the mortgage of October 17th, 1895; Rs. 600 were left in their hands in order that they might pay off the mortgage to Abbas Ali of July 7th, 1898, and Rs. 483 were left with them in order that they might pay off the mortgage to Abbas Ali of January 26th, 1899. 1,086 rupaya zar-i-yaftani Abbas Ali taaluk mushtarian kardya; chayiye ke mushtarian Jeth 1307 F. men ada karke pusht dastawez bharpai mahajan mazkur ke hath se likhwake wapas kar lewen). On May 13th, 1901, the two ladies took Rs. 200 from the plaintiffs and in modification of the arrangement stated in the sale-deed of April 10th 1900, the plaintiffs undertook to pay the mortgagee Abbas Ali Rs. 886 in Jeth 1309 Fasli and the ladies undertook to pay him Rs. 200. On April 3rd, 1902, the ladies sold the 7 1/2-annas share in Jamalpur to defendants Nos. 2 to 7 stating that it was free from encumbrances and the remaining 3-annas share in Jamalpur was sold to defendants Nos. 1 & 2 by deeds of April 12th, 1507, and June 13th, 1908, also "free from encumbrances."

(2.) The plaintiffs failed to make any payment to Abbas Ali and the two ladies also failed to pay him the sum of Rs. 200. He accordingly put his mortgages in suit, obtained a decree and had portions of the shares in the two villages proclaimed for sale. The plaintiffs paid Rs. 2,756 into Court to stop the sale and brought the present suit in August 1909 to enforce contribution out of the share in Jamalpur of its rateable shares of the sum paid by the plaintiffs.

(3.) The plaintiffs case is that the share in Jamalpur purchased by defendants was liable to contribute rateably to the amount secured by the mortgages in favour of Abbas Ali and is, therefore, liable to contribute to the amount which the plaintiffs had to pay in order to save the properties from sale.