BENI CHAND Vs. EKRAM AHMAD

JUDGEMENT

(1.) This appeal raises two points, viz., (1) whether the mortgage dated the 14th of April 1917 is binding on the plaintiff-respondent Ekram Ahmad, and (2) if not, whether the amount of share decreed to him is too large, and if so, what is the proper share which should have been decreed to him.

(2.) The facts are briefly these: The pedigree of the family to which the respondent belongs is given in the judgment of the learned Additional Subordinate Judge. One Karamat Ali owned a 16 annas share in the property in suit. That property descended to his son Hashmat Ali, as Hashmat All's mother who was the other heir, did not claim any interest. Hashmat Ali died two years after his father and then a question arose as to who should have the property. Hashmat Ali was survived by his cousin Mahmud Ali being a son of Lutf Ali, a brother of Karamat Ali, and also by Yakub Ali and Qadir Ali, sons of Ilahi Bakhsh, another brother of Karamat Ali. On the 2 February, 1907 an agreement was arrived at between Mahmud Ali, Yaqub Ali and Quadir Ali on the one side and Mt. imtiaz Bibi, the mother of Hashmat Ali, on the other. It was agreed that Mt. Imtiaz Bibi should remain in possession of her son's property, that she should pay the debts due from the estate out of the income of the property and should spend the rest of the income as best as she liked, that she would not transfer any portion of the property without the consent of the other party to the document and that on her death the three persons constituting the other party would get the property. It was further provided that should any of the party of the three male persons die before the death of Mt. Imtiaz Bibi, his share would descend to his heirs.

(3.) On the 14 of April 1917, Mt. Imtiaz executed a usufructuary mortgage for the sum of Rs. 3,000 in favour of the appellant Beni Chand, Ekram Ahmad, the respondent, is one of the sons of Yaqub Ali, He said that he did not consent to any transfer by Mt. Imtias and that the transfer was not binding on him. Mt. Imtiaz is dead and hence he claimed to recover a third share in the property on the ground that he was the sole heir of Yaqub Ali. Yaqub Ali had several Children besides Ekram Ahmad, viz., Khadim Ahmad, Ghulam Ahmad, Mt. Kulsuman and Mt. Mahmuda. It was part of Ekram Ahmad's case that Khadim. Ahmad was an illegitimate child and therefore, did not inherit and that the rest of the children of Yaqub Ali had relinquished their interest in the property in favour of Ekram Ahmad. The defence was that the mortgage of the 14 of April 1917 was executed to pay off a decree which was obtained by one Jagannath on foot of a mortgage executed in his favour on the 6 September 1915 by Mt. Imtiaz with the consent of Mahmud Ali, son of Lutf Ali, and also with the consent of the plaintiff, his brothers and of the sons of Qadir Ali. It was found that the plaintiff did not give his consent and that the mortgage of the 14 of April 1917 was not binding on him. The plaintiff sold 4 annas 3 pies out of his share pending the suit, in favour of certain persons who were made defendants in the suit. The plaintiff's share was found to be 5 annas 4 pies and deducting 4 annas 3pies out of the same a decree was made in his favour for 1 anna 1 pie share.