MOHAMMAD AFSAL KHAN Vs. 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. Haji Malik Rahman, a Mahomedan, died in or about 1910, leaving a will dated 12 June 1910 whereby ha devised certain immovable properties to his son Malik Mohib Ali, who is respondent 3 in this appeal, and his two grandsons Sardar Ali and Sabz Ali, in three equal shares. On the death of Haji Malik Rahman, respondent 3 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 respondents 1 and 2 in this appeal, and on his death his one-third share in the above-mentioned properties passed to them. Respondents 1 and 2 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.

(2.) On 26 April 1923 respondent 3 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. On the same day the appellant granted a lease of the mortgaged properties to the mortgagors at an annual rent of Rs. 12,000. Some time there, after Sardar Ali died without leaving any issue, and on his death his one-third share passed to his father, respondent 3, as his heir. Respondent 3 thus became entitled to a two-thirds share in the properties, the remaining one-third being the share of respondents 1 and 2. The rent under the lease fell into arrear, and the appellant obtained three decrees for arrears for various periods against respondent 3, and in execution of the decrees attached four immovable properties, being properties other than those comprised in the mortgage, but forming part of the properties bequeathed by the will of Haji Malik Rahman.

(3.) Subsequently, on 19 August 1926, Mt. Tajwar Sultan was appointed guardian of the person and property of respondents 1 and 2. Soon after her appointment she demanded their one-third share in all the properties from respondent 3. This was followed by a reference to arbitration on 4 September 1926 and an award was made on 7 January 1927. Respondent 3 made a statement before the arbitrators, but he did not disclose the mortgage to them. By their award the arbitrators awarded to respondents 1 and 2 in lieu of their one-third share and the mesne profits thereof (1) some of the properties comprised in the mortgage, and (2) all the four properties attached as aforesaid. On 10 February 1927 a decree for partition was passed in terms of the award under Cl. 21, Sch. 2, Civil PC. and respondents 1 and 2 were in execution of the decree put in possession of the properties allotted to them. It is upon the effect of this award and decree that the decision of the questions in this appeal depends.