SOLEMA BIBI Vs. HAFEZ MAHAMMAD HOSSEIN

JUDGEMENT

(1.) These two appeals arise out of one decree made by the Subordinate Judge for foreclosure of a mortgage, alleged to be by conditional sale by the plaintiff. There were three sets of defendants in the Court below. There were two brothers named Akbar Khan and Amanat Khan. Both of them are dead. The defendants 1 to 9 are the representatives in interest of Akbar Khan. The defendants 10 to 18 are the legal representatives of Amanat Khan. The defendants 19, 20 and 21 are three firms of Marwaris, who may be described as the Marwari defendants, who were made defendants on the ground that they had attached certain of the mortgaged properties for debts alleged to have been due from the mortgagors. The mortgage is dated the 18 March 1921 and it purported to have been made by Akbar Khan for himself and as ammukhtear for Solema Bibi, defendant 10, the widow of Amanat Khan, and also as am- mukhtear for Rohima Bibi, the adult daughter of Amanat, and as guardian on behalf of the minor sons and daughters of Amanat named Soleman Khan. Rahamat Khan, Sarifatennessa, Shamedanessa and Hamidanessa. It also purported to have been executed by Md. Nainuddi, the adult son of Amanat, and by Asrabannessa, the adult daughter of Amanat. Amanat died on the 8 December 1909 and Akbar died on the 8 October 1921.

(2.) Appeal No. 77 is by defendant 10, the widow of Amanat, and defendants 13, 15, 16, 17 and 18, the sons and daughters of Amanat. The defendant 13 is Asrabannessa who had attained majority at the time of the mortgage and who is said to have herself executed the bond. The other sons and daughters who have appealed were as already stated infants at the time of the execution of the bond. The adult son of Amanat, called Naimuddi, was defendant 12 in the Court below. He has not preferred any appeal. Appeal 116 is by defendants 19, 20 and 21, the attaching creditors of the mortgage properties.

(3.) The case of the plaintiff is that the two brothers Akbar Khan and Amanat Khan carried on a trading business and with regard to that business they had dealings in money with the plaintiff, who acted as their commission agent and aratdar in connexion with that business. After the death of Amanat the old business continued and the heirs of Amanat continued as partners with Akbar in the business, and that after taking accounts of the dues of the plaintiff it was found that the plaintiff was entitled to get Rs. 29,074-14 annas from the defendants, and in consideration of that debt the mortgage bond already mentioned was executed in his favour, and as defendants 19, 20 and 21 had attached some of the properties they were joined as defendants in the suit. The plaintiff asked for a decree for foreclosure according to the terms of the bond, as they were entitled to sue for foreclosure on any attachment being made of the properties mortgaged by any person. Various defences were raised to this suit by the contesting defendants in the Court below. It is unnecessary to mention now all these. The points that were taken in appeal against the judgment of the Subordinate Judge will be stated later on. The Subordinate Judge found for the plaintiff and made a preliminary decree for foreclosure allowing the defendants two months time from the date of the decree for repayment.