DUJAI Vs. SHYAM LAL

JUDGEMENT

(1.) This appeal arises out of a suit on foot of a mortgage, dated November 1900, executed by one Nanku in favour of one Musammat Sumaria. The mortgage purported to be a mortgage of the whole house. In the events which have happened it is admitted that Nanku had no right to mortgage more than half the house and the plaintiffs in no event were entitled to a decree for sale of more than half of the house which belonged to Nanku.

(2.) The facts connected with the suit are somewhat complicated and are fully set forth in the judgment of the learned District Judge. The Court of first instance decreed, the plaintiffs claim for sale of the whole house, though from the judgment it is pretty clear that it only intended to give a decree for half. The lower Appellate Court dismissed the plaintiffs suit. An appeal was filed in this Court and a learned Judge dismissed the appeal.

(3.) It is only necessary for us to refer to so much of the facts as relate to the present letters patent appeal. As already stated, the mortgage was made in favour of one Musammat Sumaria. She is the wife of the appellant Dujai. Dujai when he instituted the present suit made a number of persons defendants as persons interested in the equity of redemption, and he also made his own wife Sumaria a party. He alleged in the plaint that she had no interest in the mortgage, which had been made in her name as benamidar for the plaintiff Dujai. Musammat Sumaria did not defend the suit or deny the allegations contained in the plaint as to the position which she occupied in relation to the mortgage. We must now mention another matter. In the year 1906 Musammat Sumaria brought a suit on foot of this very same mortgage. Nanku was then dead and she impleaded as legal representative of the mortgagor one Musammat Murti. A decree was obtained and the property was put to sale and half of the house was purchased by the co- plaintiff Kangali. When Kangali together with Sheokoti Lal (the purchaser of the other half of the house) sued for possession, his suit was defeated upon the ground that the representative of the mortgagor was not Musammat Murti and that, therefore, he acquired no title. It further appears that the purchase-money which Kangali had paid was attached by a, creditor of Dujai, On the allegation that Dujai was the real mortgagee and that the purchase-money of half the house belonged to him. Dujai attempted to defeat the claim of the attaching creditor by alleging that the mortgage belonged to his wife. This gentleman, however, was not believed and (he attaching creditor succeeded in getting the money. This litigation rather shows that Dujai was, as he alleges, the real mortgagee.