AMIR BEGAM Vs. BANK OF UPPER INDIA, LIMITED

JUDGEMENT

(1.) The facts of this case are these. The Bank of Upper India held a decree for sale of the property of Afzal Shab, Dost Muhammad Khan and Amir Muhammad Khan. In execution of that decree they attached and advertised for sale the property of their judgment-debtors. The plaintiff, Musammat Amir Begam, who is the wife of Afzal Shah, authorized one Haidar Shah to purchase for her out of the property so advertised for sale, as she alleges, the share which belonged to her husband, but not the shares of Dost Muhammad Khan and Amir Muhammad Khan, in the village of Purwana Mahmudpur. The share of Afzal Shah in this village was sold on the 20 of August 1903 to the plaintiff, and the deposit in respect of the purchase money was duly made and this sale was carried out, With this share we have nothing to do in this appeal. The shares of the other judgment-debtors in this village were put up for sale on the 23 of August 1903 and were knocked down for a sum of Rs. 20,000. Haidar Shah attended at this sale and was the highest bidder. He represented that he attended and bid at the sale on behalf of the plaintiff. No deposit on account of the purchase money was made. Time was allowed to Haidar Shah to pay the deposit, but he failed to do so, and on the 25 of August 1903, this share of the property was sold for a sum of Rs. 12,500 to the decree-holders, the Bank of Upper India. The Bank then claimed to be entitled to recover from Musammat Amir Begam the amount of the difference in the tale price of the property and the price offered by Haidar Shah, namely, Rs. 7,500. Musammab Amir Begam objected, alleging that Haidar Shah had no authority from her to purchase the property in her name. The Bank then attached her property in execution for the purpose of raising the amount of their claim, and she thereupon instituted the present suit to have it declared that she was not liable to pay the deficiency, and that the defendant Bank was not entitled to recover that deficiency from her, and that her property could not be sold to satisfy the amount.

(2.) The Court below held upon the issue as to whether or not Musammat Amir Begam did give authority to Haidar Shah to bid on her behalf in respect of this share of the property, that she had given such authority and dismissed her suit. Hence the appeal which is now before us.

(3.) Evidence has been given by Haidar Shah, also by Musammat Amir Begam herself and by two other persons in support of her case. Musammat Amir Begam positively denies that she authorized Haidar Shah to purchase any shares in the property other than the shares which belonged to her husband. Haidar Shah corroborates her as to this. In his evidence he stated that Amir Begam did not authorize him to make any bid for the property of Dost Muhammad Khan and Amir Muhammad Khan and he says: "I advanced bids at the request of Ghafur Bakhsh and Burkat Ali Khan." Ghafur Bakhsh is a vakil who is employed by the Bank. Barkat Ali Khan is also an agent of the Bank. He further deposed: "I caused the name of Amir Begam to be taken down thinking that she might possibly take the property. Permission had not been given to me. Amir Begam has not executed any general power of attorney in my favour nor has she given me any written authority." Two other witnesses, Ahmad Mir Khan and Prasadi Lal, support the evidence of Haidar Shah and Musammat Amir Begam. No evidence to rebut the case of the plaintiff has been adduced. As Mr. O Conor pointed out, there could not very well be any evidence procurable, seeing that there was no written authority given by the plaintiff to Haidar Shah. He did not act under any power of attorney, and, so far as the evidence goes, save and except that he was asked by Musammat Amir Begam to purchase some of her husband's property on her behalf, there is no evidence before the Court other than that to which we have referred. On this evidence, if we consider it trustworthy, the plaintiff was entitled to a decree.