HAJI MOHAMMAD AFZAL KHAN Vs. MALIK ABDUL RAHMAN

JUDGEMENT

(1.) The questions involved in this appeal relate to the effect of a partition of joint properties effected by a decree, where the decree is one made on an award, on a prior mortgage and a prior attachment of the share of one of the co-owners in some of the properties.

(2.) Haji Malik Rahman, a Muhammadan, died in or about 1910, leaving a will dated June 12, 1910, whereby be devised certain immovable properties to his son Malik Mohib Ali, who is the third respondent in this appeal, and his two grandsons Sardar Ali and Sabz Ali in three equal shares. On the death of Haji Malik Rahman, the third respondent entered into possession of the properties and recovered the rents and profits thereof on behalf of the family. Sabz Ali died in 1914 leaving two children, who are the first and second respondents in this appeal and on his death his one-third share in the above-mentioned properties passed to them. The First and second respondents were both minors at the date of their father's death and also at the date of the suit out of which the present appeal arises.

(3.) On April 26, 1923, the third respondent and his son Sardar Ali executed a mortgage of some of the properties in favour of the appellant to secure payment of Rs. 1,00,000, lent and advanced to them by the appellant. The mortgage purported to be one with, possession.