DARBARI LAL Vs. MAHBUB ALI MIAN

JUDGEMENT

(1.) This was a suit brought in the Court of the Subordinate Judge of Shahjahanpur, to enforce a mortgage of the 16 of January 1913, executed by the wife and sons of one Khurshed Ali Mian, deceased. The plaintiffs also alleged that they had preferential right to the payment of the moneys secured by their mortgage in priority to one Rani Barkatunnissa.

(2.) The learned Subordinate Judge decided that the mortgage was effective in so far as it concerned the share of the wife and of the two major sons, Defendants Nos. 1 and 2. He also held with regard to Rani Barkatunnissa that she stood on an equal footing as regards her advances with the plaintiffs. The plaintiffs appealed from this decision, and the ground they took is that as between Khurshed Ali Mian and Mt. Latifunnissa, his wife, Mt. Latifunnissa was the owner of the entire property, and as such was competent to mortgage it. They alleged the further ground that the sons and daughters were not competent to question the validity of an award and decree now about to be mentioned.

(3.) In the year 1896, Khurshed Ali Mian was the owner of the property in dispute. He was in embarrassed circumstances, and by arrangement with his wife she put forward a claim to her dower. The matter was submitted to arbitration, and under the terms of the award the immovable property, the subject-matter of this suit was transferred to her in extinguishment of her claim to dower. This award was dated the 6 of July 1896. On the 18 of August of the same year a decree in terms of the award was passed by the Subordinate Court, and mutation in favour of the wife followed. Lalta Prasad was a creditor. He did not believe in the genuineness of these proceedings and commenced a suit for a declaration that they were in fraud of creditors; and on the 6 May 1897, obtained a decree. On the 20 of November 1897, the husband and wife joined in a mortgage to Lalta Prasad, and again on the 14 of June they executed a simple mortgage for Rs. 3,000 in favour of Darbari Lal, the present plaintiff. On the 10 of August 1899, they executed a second mortgage in favour of Lalta Prasad. Khurshed Ali Mian died in 1905, and in October 1906 a considerable sum of money being outstanding, Rani Barkatunnissa became surety and paid off all the moneys due under the three mortgages with the exception of Rs. 12,500 due to Lalta Prasad, and Rs. 1,500 due to Darbari Lal. The mortgage in suit was created to pay off these two sums.