AMIR HUSAIN Vs. ABDUL SAMAD

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for recovery of possession of certain properties on the strength of a usufructuary mortgage. On 13 May 1920, Tufail Ahmad executed a usufructuary mortgage for Rs. 9,750 of certain zamindari properties in favour of Abdul Ghani. The defendants first party are the heirs of the mortgagor Tufail Ahmad. The defendant second party is the subsequent transferee from the mortgagor with whom we are not just at present concerned. Abdul Ghani had three wives, from whom he had one son, the plaintiff, and two daughters, one of whom Azizunnisa is now dead. The suit was brought by the plaintiff alone for recovery of possession of the entire property without impleading his sister Mt. Hakim-un-nisa on the allegation that under a will he had succeeded to the estate of his father Abdul Ghani. This case was given up and no proof was led as regards this will, possibly because the will in favour of an heir would have been void. The plaintiff did not choose to implead his sister even after he decided not to press his case as regards the will. The suit was instituted on 29 April 1932, just within 12 years of the mortgage deed. The main defence was a denial of the mortgage and its consideration. There was a further plea that all the heirs of Abdul Ghani were necessary parties and that the suit was defective on account of non-joinder. These points have been decided against the defendants by the Court below.

(2.) As regards the plea of non-joinder, it may be pointed out that the Court below has given the plaintiff a decree in respect of his legal share only, namely 35/64 sehams in respect of the share of Abdul Ghani and not in respect of the entire estate. There is no cross-appeal preferred by the plaintiff. The Court below has also specified the plaintiff's share in the mortgage money, which implies that when in future the defendants wish to redeem the property decreed to the plaintiff, they would have to pay only a proportionate share of the mortgage money. One item of the mortgage money has not been found to be proved but the rest has been established. The amount of the mortgage money is not challenged before us. It seems to us that if the plaintiff had impleaded his sister also, he would certainly have been entitled to a decree for possession, provided there was no other defect, of the entire mortgaged property as the defendants would be in possession without title and the integrity of the mortgage had not been broken. The plaintiff, however, has got a decree for his share only. The defendants can in no way be prejudiced by any subsequent suit being brought by Mt. Hakim-un-nisa as that suit, if it is still within time, can relate only to the share which the plaintiff has not got.

(3.) The learned Counsel for the defendants has argued before us that under Order 34, Rule 1 it was incumbent on the plaintiff to implead all persons having an interest in the mortgage security or in the right of redemption. But the present suit is for recovery of possession of the mortgaged property and is not one in which a decree under Order 34 would have to be ultimately passed. A co- mortgagee may well be entitled to possession as against the mortgagor but he is entitled to recover possession of the entire estate as he has an interest in every inch of the ground so long as the integrity of the mortgage is not broken, although it may be necessary in order to protect the interest of the mortgagee to implead him. Indeed, such a mortgagee can be impleaded even at a late stage of the appeal. We therefore think that it is not a fatal defect. The next point urged is that it was incumbent on the plaintiff to prove that at least two witnesses had attested the document and that the evidence in this case falls short of proving attestation by two witnesses. In the plaint, the plaintiff had set forth the mortgage deed and its particulars and had asserted that there was a relation of mortgagee and mortgagor between the parties. In the opening part of the written statement, paras. 1, 2 and 3 of the plaint were simply not admitted which meant that the defendants were putting the plaintiff to proof without positively asserting the contrary. The only paragraph where the plea was specifically taken is para. 18 which is in the following terms: If Abdul Ghani obtained any document without consideration its validity (binding character) is not admitted by these defendants. Neither Abdul Ghani himself paid any money to Sheikh Tufail Ahmad, deceased, nor was any debt paid by him (Abdul Ghani) on his behalf.