MURARI LAL Vs. MUHAMMAD SAMIUDDIN AHMAD KHAN

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for the recovery of the sum of Rs. 5,250 alleged to have been due on a mortgage bond. The mortgage in suit was executed on 12 April 1919 by one Mohammad Sami-uddin Ahmad Khan and his wife Mt. Hidayat-un-nissa Begam in favour of Nand Kishore. In the deed it is recited that the property which was mortgaged had belonged to the husband, Mohammad Sami-uddin Ahmad Khan, and that he had transferred it to his wife Mt. Hidayat-un-nissa Begam on 3 January 1919. The deed concludes with these words: In case of non-payment of the amount the creditor shall at every time have power to realise the amount mentioned in this bond, through the Court, by means of auction sale of the property hypothecated, as well as the person and the other not mortgaged property of every kind of us, the executants.

(2.) Earlier in the deed there is a recital that it is the female executant who actually hypothecates the property. The suit upon the basis of the bond was contested by subsequent transferees of the executant and in the written statement of Shahjahan Begam the deed is challenged in the following terms: "Defendants 1 and 2 executed no mortgage deed sued on in favour of the plaintiff's ancestor." The learned Subordinate Judge has dismissed the suit. He has held that the plaintiffs failed to prove that Mt. Hidayat-un-nissa Begam executed the deed. The evidence which was adduced by the plaintiffs fell short, in the view of the learned Subordinate judge, of establishing that the deed was signed by Mt. Hidayat-un- nissa Begam in the presence of the attesting witnesses. This finding has not been challenged by learned Counsel for the plaintiffs in appeal before us. He has contended however that the deed was duly and validly executed by the husband Mohammad Sami-uddin Ahmad Khan and that accordingly the property stood hypothecated and could be sold by the plaintiffs in terms of the deed. Learned Counsel for the respondents, on the other hand, contended that so far as Mohamad Sami-uddin Ahmad Khan was concerned there was no question of hypothecating any property. It was urged that he had. divested himself of the property Vj&ich his wife intended to hypothecate and that at best he was a party to the deed in the capacity of a surety.

(3.) The intention of the parties to the deed is to be gathered from a consideration of the terms thereof as a whole. Now it is true that according to the terms of the deed it is the executant Mt. Hidayat-un-nissa Begam who states that she hypothecated the property which had been transferred to her by her husband. The husband, however, was made a party to the document, no doubt, at the instance of the mortgagee, who had in view the possibility of the transfer of the property to the wife being subsequently impugned and a suit upon the basis of the mortgage deed defended upon the ground that the mortgagor had no title to the property which she had purported to mortgage. Further, as we have already noted, both the executants agreed that in respect of the amount advanced by the mortgagee the property hypothecated should be liable to sale by auction. Learned Counsel for the respondents contended that, inasmuch as there had been no property which was validly hypothecated, it could not be held that Mohammad Sami-uddia Ahmad Khan had agreed that, the property should be charged in respect of the debt. We are unable to accept this contention. The term "property hypothecated" in the concluding portion of the deed clearly refers to the property described earlier in the document. The husband agreed that this property should be liable to sale by the mortgagee.