RASHID-UN-NISSA Vs. MUHAMMAD ISMAIL KHAN

JUDGEMENT

(1.) The suit out of which this appeal has arisen, was brought to enforce a mortgage of the 31st of January, 1882, executed by one Sardar Khan in favour of one Achhal Das, under the following circumstances. The property comprised in the mortgage was 3 biswas out of 10 biswas. Sardar Khan died in 1888, leaving him surviving two daughters, a brother and an illegitimate son. The appellant Rashid- un-nissa, is one of those daughters. The mortgage of the 31st of January, 1882, was assigned by Achhal Das, the mortgagee, to the plaintiffs and their brothers, who were the sons of Mauladad Khan, the brother of Sardar Khan. The plaintiffs, in 1894, along with their brothers, brought a suit upon their mortgage, against the two daughters of Sardar Khan and against Abdul Majid, his illegitimate son, and they obtained a decree on the 28th of August, 1894. In 1897, Rashid-un-nissa brought a suit to have this decree set aside. We may mention that before the suit of 1894 was brought, an arbitration award had been made under which certain shares were allotted to the daughters, the brother and the illegitimate son of Sardar Khan. The object of Rashid-un-nissa s suit was to have the decree and the award set aside in so far as they affected her interests. She obtained a decree from the Privy Council in 1909, and under that decree she was restored to possession of three biswas out of the 10 biswas owned by Sardar Khan. After the passsing of the Privy Council decree to which we have referred, the plaintiffs, who are two of the assignees of the bond of 31st of January, 1882, brought the suit out of which this appeal has arisen, and they seek to recover from Rashid-un-nissa s share of the mortgaged property her proportionate share of the mortgage debt. The court below has decreed their claim.

(2.) It is contended here that as the plaintiffs had already obtained a decree on the mortgage of 1882, they could not maintain a second suit on the basis of the same mortgage, and the foundation for the contention is that the decree obtained in 1894 was a joint decree against the whole of the mortgaged property, and could be enforced against any part of that property, and is, therefore, capable of enforcement as against the property of the heirs of Sardar Khan other than Rashid-un-nissa, present appellant, for the full amount alleged to be due for her share of the mortgage debt.

(3.) On referring to the decree we find that the prayer in the suit in which it was passed was that for the amount claimed, the mortgaged property should be ordered to be sold according to the specification given in the plaint, and in the specification given at the foot of the plaint, the share of each heir is separately specified. In the decree also the share of each heir is separately specified, as also the amount of demand against each of those shares. This was a natural claim in view of the fact that the integrity of the mortgage had been broken up by reason of the plaintiffs having acquired the share of their father Mauladad Khan, which was also liable for the mortgage debt. It further appears that the plaintiffs had purchased at auction another part of the mortgaged property. So that it is manifest that the mortgage did not subsist as one indivisible mortgage, but each of the persons liable was only liable to the extent of his or her proportionate share of the debt. It was for this reason that the plaintiffs in the suit of 1894, claimed from each heir a proportionate part only of the mortgage debt and sought to bring to sale the share of that heir only for the realization of that part. This was the claim which was decreed, and therefore we must hold that the decree was in effect a separate decree against each of the heirs for the proportionate liability of that heir. That being so, Rashid-un-nissa s share was, according to that decree, liable for her proportionate share of the mortgage debt. By the decree of the Privy Council obtained by her that decree having been set aside, the plaintiffs are entitled to recover from her the portion of the mortgage debt for which she is liable.