MAKSUD ALI KHAN Vs. SHEIKH ABDULLAH KHAN

JUDGEMENT

(1.) This is a defendants appeal and arises out of a suit for sale on a mortgage, dated the 4 August 1919. The mortgage was executed by Mt. Nazir un-Nisa, defendant 1, on her own behalf and on behalf of her minor son Sayed Ahmad Khan, defendant 2. The mortgage was for a sum of Rs. 500, and the mortgaged property consisted of shares in two villages, Nagla Rumi and Asafpur, which belonged both to Mt. Nazir-un-Nisa and to Sayed Ahmad Khan. Though Mt. Nazir- un-Nisa was a certificated guardian of her minor son, she executed the mortgage- deed without taking the permission of the District Judge.

(2.) About a month after the execution of the mortgage-deed, viz., on the 10th September 1919, Mt Nazir-un-Nisa, with the sanction of the District Judge, sold the share belonging to her and to her minor son in Nagla Rumi to defendants 3 and 4, who are the appellants before us, and, out of the sale consideration, left with the vendees the amounts due on the basis of a prior mortgage and of the mortgage now in suit for payment to the respective mortgagees. The appellants discharged the prior mortgage, but did not pay the amount left with them for payment to the plaintiff-respondent, and hence the suit giving rise to the present appeal was brought by the plaintiff for recovery of the mortgage debt by sale of the shares in the two villages mortgaged.

(3.) Sayed Ahmad Khan did not contest the suit. Mt. Nazir-un-Nisa alleged that out of the entire sum of Rs. 500 paid before the Sub-Registrar, the plaintiff- respondent took back a sum of Rs. 250 from her and she only received Rs. 250 as consideration for the mortgage in suit.