LALA KESHO DAS Vs. MANZOOR HASAN

JUDGEMENT

(1.) This is a creditor's first appeal from the judgment of the Special Judge first grade, of Meerut under Section 14, Encumbered Estates Act. On 24 October 1921 a simple mortgage was executed by Syed Hasan, his wife Mt. Mustafai Begum and one Ibne Hasan, who is said to be the brother-in-law of Syed Hasan, in favour of the present appellant, Lala Kesho Das, for a total consideration of Rs. 16,000 in respect of certain property in village La war Khas in the Meerut district. The document did not state the shares of the three mortgagors in this property but it did contain a long list of the old debts which went to make up the sum total of Rs. 16,000. There was no cash consideration for the mortgage, the whole of the consideration being made up of old debts, credit for which was allowed in the deed. In the year 1980 the mortgagee Kesho Das, instituted suit No. 94 of 1930 for recovery of the amount due on this mortgage. By that date, Mt. Mustafai Begam had died and Syed Hasan was sued in his own capacity as a mortgagor and also as one of the heirs of his wife. The other heirs of Mt. Mustafai Begum who were parties to the suit were Mt. Haidari Begum, her daughter, and Manzoor Hasan and Maqbool Hasan minor sons of Mt. Mustafai Begum and Syed Hasan, The plaintiff obtained a preliminary decree on 27 January 1981 and a final decree on 30 July 1932; but it appears that the property had not been finally brought to sale by the date of the enactment of the U.P. Encumbered Estates Act of 1934.

(2.) On 26 October 1936 an application was made under Section 4, U. P. Encumbered Estates Act, by Manzoor Hasan, Maqbool Hasan and Mt. Haidari Begum. They named in their application only two creditors, Kesho Das and Ghasi Bam. In this case we are concerned with the former of these two persons only. On 6 September 1937 the landlords applicants filed their written statement under Section 8 of the Act and in regard to the mortgage debt of Kesho Das they sought to evade liability by alleging that their mother was a pardanashin lady and so on. The creditor, Kesho Das, replied with his written statement of claim on 2nd January 1938 and he contended that it was not open to the landlords applicants to question the findings of the Court of the Civil Judge in which he had obtained a preliminary decree and final decree several years earlier. He further said in para. 10 of the written statement that there was no question of apportionment under Section 9 because the whole debt was recoverable from any portion of the mortgaged property.

(3.) The learned Special Judge held in favour of the mortgagee creditor that it was not open to the applicants to reagitate the questions of the execution and consideration of the mortgage bond of 1921. He went on to consider those very two questions upon the assumption that it was open to the applicants to reagitate them and on a careful consideration, he held that Mt. Mustafai Begum had duly understood the bond and its contents and that she had duly executed it and he further held that it was clear that the mortgage bond in suit "was executed in lieu of some debts which had been incurred by Mt. Mustafai Begum and her mother," and therefore he held that the bond was executed for consideration. The learned Judge went on to consider the question of the extent of the liability of the applicants, that is, he started to consider the question of apportionment which arises under Section 9 (5) (a), U.P. Encumbered Estates Act. In this connection he prejudged, as one might say, the whole course of his decision on the point by saying: It has been contended on behalf of the creditor that the applicants liability must be decided with reference to the property of their mother. I am unable to agree with this contention because in this case there is clear evidence to show the extent of the amounts borrowed by her.