LALA KUNDAN LAL Vs. MT MUSHARRAFI BEGAM

JUDGEMENT

(1.) The plaintiffs appeal from a decree of the Chief Court of Oudh dated 27 April 1933, which set aside a preliminary mortgage decree granted to them by the Subordinate Judge of Kheri dated 7 September 1931. The suit was brought on 24 February 1931 to enforce the terms of a registered mortgage deed dated 8 September 1924. Defendant 1, Mt. Musharrafi Begam, was the only contesting defendant and will be referred to herein as the defendant. She was described in the plaint as being of about 40 years of age. The date of her marriage does not appear, but it appears that at the time of her marriage her husband Mohammad Abdul Bashir Khan agreed to pay her dower of Rs. 50,000.

(2.) By deed dated 9 February 1920, executed at a time when the defendant's husband had incurred a certain number of debts, though it is not shown that he was then insolvent, he transferred to her five villages in lieu of the promised dower. The villages, even if allowance be made for encumbrances subsisting thereon, appear to have been well worth the sum of Rs. 50,000. The mortgage sued upon is dated 8 September 1924, and covers one only of the five villages, viz., Sheopuri. It is for the sum of Rs. 12,500, Rs. 8,500 being received from the plaintiff Kundan Lal and Rs. 4,000 from the plaintiff Ram Charan. In all some Rs. 550 were paid in cash at the time of execution of the mortgage. Rs. 3,332 went in satisfaction of a promissory note executed by the defendant and her husband in 1928. Rs. 2,500 went in payment of Government revenue: of this sum approximately Rs. 2,000 was due in respect of Government revenue upon the defendant's property. It is not necessary for the present purpose that their Lordships should make a more detailed reference to the particulars of consideration set forth at the end of the deed. The deed itself recites the deed of gift dated 9th February 1920, that the husband is liable for the amounts therein specified, and has not sufficient property left with him to pay the same, "and besides this executant 1 also (that is the defendant) stands in need of Rs. 3,055-6-0 for the payment of Government revenue and to meet her other necessary expenses, and executant 1 wants to free executant 2 (that is the husband) from his debt." The terms of the loan are that the money should be repaid within six months with interest at 1 per cent per month, and that if not paid on the expiry of six months the interest should be computed with six-monthly rests. It is stated that there was already a mortgage on the property for Rs. 14,000. The deed concludes: "Executant 1 has fully understood the contents of the mortgage deed through her husband and has taken legal advice also for it. Executant 1 has in no way been deceived in executing this deed."

(3.) The scribe Behari Lal signed the deed as such. He was dead at the date of the suit. Mohammad Abdul Bashir Khan signed his name and put his thumb mark. The defendant put her thumb mark. The witnesses to the execution by both were Pandit Deo Nath and Badri Mahto, both of whom signed their names as witnesses. The document purports to have been registered on the same date, namely 8 September 1924, at the residence of the defendant and her husband in village Behtia by one Niamat Ullah, Sub-Registrar, Lakhimpur. The Sub- Registrar has noted: "The conditions laid down in this deed have been read out and fully explained to the lady executant." There is also an endorsement to the effect that execution and completion of the deed was admitted: in the case of the lady that she herself "admitted it from her own mouth in a loud voice from behind the screen in the dalan facing east inside her house and realized Rs. 32-13-3 from Kundan Lal, mortgagee, and Rs. 512-7-9 from Ram Charan, mortgagee, in cash before me." It is stated that the lady was identified to the Sub- Registrar by Ali Mohammad Khan and Sheikh Ibadullah, who are described as nephew and tutor respectively. The endorsement is signed by the husband and the defendant's name is put thereto by the pen of Qadar Ali together with her thumb impression. Ali Mohammad Khan and Sheikh Ibadullah have also affixed their signatures.