SAIYID ISMAIL HASAN Vs. SAIYID MAHDI HASAN

JUDGEMENT

(1.) The suit out of which this appeal has arisen was originally instituted by Saiyid Mahdi Hasan, respondent No. 1, for the redemption of a mortgaged property and for the recovery of the surplus usufruct realized by the mortgagee from the plaintiff. In the course of the trial other plaintiffs were added mainly because the original plaintiff's property had been transferred to them.

(2.) The original mortgagor was one Muhammad Zahur Hasan, whose son is the plaintiff No. 1, and whose widow was the defendant No. 5. The original mortgagee was one Muhammad Sadiq, whose descendants are the defendants Nos. 1 to 4. The other defendants are subsequent transferees.

(3.) The original mortgage was made for the sum of Rs. 5,500. It appears that at the date of the mortgage, which is the 17 of February 1895, the properties mortgaged, nine in number, were all held by prior mortgagees. It was agreed that the mortgagee Mahammad Sadiq should advance a sum of Rs. 900 in cash and should keep the balance of the consideration money to redeem the prior mortgages. It was also argeed that till the mortgages were redeemed the mortgagee Muhummad Sadiq should recover from the prior mortgagees sums of money payable by them to the mortgagor on account of certain stipulations contained in the mortgage-deeds. It appears that the prior mortgages were in the shape of zar-i-peshgi leases, by which the mortgagees advanced a sum of money and agreed to take a part of the usufruct of the property to compensate them for the money advanced and to pay to the mortgagor a portion of the usufruct. It was this portion that was orginally payable to the mortgagor and was made payable to Muhammad Sadiq.