MOHAMMAD AHMAD SAEED KHAN Vs. KISHORI LAL

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for sale on the basis of a mortgage deed dated 13 April 1923 executed by the defendant in favour of the plaintiffs. It appears that by the year 1922 the defendant was indebted to various creditors to the extent of about Rs. 52,000. On 1 October 1922 he executed a deed of wakf which was a settlement in favour of his descendants, but made provision for the payment of the outstanding debts. The wakif laid down that he would discharge his previous liability, and reserved the right to transfer a part of the dedicated property in order to pay off the previous debts, if he was not able to discharge them otherwise. Such a power was expressly reserved in Clause 8(2) of the deed. Apparently he was not able to pay off the previous debts, and accordingly executed the mortgage deed in suit with a view to satisfy those debts. It is to be conceded that there was no fresh advance made by the mortgagees, but the deed was executed in order to pay off the previous debts, the payment of which had been provided for in the deed of wakf.

(2.) Under this deed of mortgage the mortgagor undertook to pay to the creditors the entire mortgage money on demand with interest at the rate of 10 annas 6 pies per cent per mensem. It was further provided that interest would be paid by him half yearly, but if there was default, it would be added, to the principal and would itself carry interest.

(3.) The claim was resisted on two grounds only. First, that in view of the previous dedication, the mortgage deed was not valid. Secondly, that there was a private agreement between the parties that the mortgage would be a usufructuary mortgage and not a simple mortgage.