MT SHYAM DEI TAWAIF Vs. MTMAHMOODUNNISA BIBI

JUDGEMENT

(1.) This is an appeal by a judgment-debtor and arises under the following circumstances. Two brothers Oudh Behari and Kunj Behari executed a deed of simple mortgage on 12 September 1932, in favour of Mt. Mahmoodunnisa Bibi, respondent in the present appeal. The mortgage was for a sum of Rs. 8000 and the property mortgaged consisted of village Ibrahimpur and shares in two villages Khanpur and Dostpur. Again on 8 March 1934, Oudh Behari executed a simple mortgage in favour of Mahmoodunnisa Bibi for Rs. 1200 mortgaging portions of shares of the three villages named above. Thereafter on some date, which does not appear from the record, Oudh Behari executed a deed of gift with respect to a portion of his share in Ibrahimpur in favour of his mistress, Mt. Shyam Dei who is the appellant in the present appeal. It is common ground that portions of the three villages were sold to certain transferees by mortgagors and portions of the debts due under the two mortgages were left with various transferees for the partial discharge of the two mortgages, Kunj Behari and Oudh Behari, however, retained portions of the mortgaged property and the burden of the mortgages continued on those portions.

(2.) On 15 October 1940, Mahmoodunnisa put the two mortgages into suit. She impleaded the two mortgagors, the transferees as well as Mt. Shyam Dei as defendants to the suit. The suit culminated in a decree for sale which was passed on 25 April 1941.

(3.) When Mahmoodunnisa proceeded to execute the decree Shyam Dei claimed the benefit of the Debt Redemption Act (13 [XIII] of 1940). She prayed for reduction of interest by amendment of the decree in accordance with the provisions of Section 8 of the Act. This prayer was refused by the Court below and we are no longer concerned with that prayer in the present appeal. Shyam Dei further objected that, in view of the provisions of Section 17 of the Act the share gifted to her could not be sold in execution of the decree. This contention of Shyam Dei was overruled by the Court below. Being aggrieved by this order of the Court below she has preferred this appeal.