MUSAMMAT FATIMA BIBI Vs. RAM NARAIN SAHU

JUDGEMENT

(1.) This is a suit on a mortgage of the 17th of September 1900, The executants of this deed were six persons. Jamil Ullah and Jalil Ullah, the two sons, and Musammat Khatun Bibi, the surviving widow of one Khalil Ullah, deceased, were the first three. The other three executants, Jolira Bibi, Mohammad Shibli and Muhammad Makki, were members of the same family, connected more or less distantly according to a pedigree which is to be found at page 2 of the printed record. The only point I desire to make about these three executants at present is that the pedigree does not show that they could have inherited any property from the deceased Khalil Ullah so as to be liable for payment of any portion of that gentleman s debts. The suit as brought is against the executant Jamil Ullah in person and the heirs of the remaining five executants, all of whom are since deceased. The Court below has found execution proved as against the four male executants and not proved as against the two ladies, Khatun Bibi and Johra Bibi. The mortgaged property as specified in the deed in suit consists of shares in three villages and certain house property and a grove, but the present suit is for realisation of the entire mortgage-debt from an 8-anna share of the judgment debtors in a single village, the name of which is variously written as Gowai or Gowaipur, and also from the dwelling house and the grove. We have no information before us as to the respective shares of the various executants of the deed in the dwelling house or in the grove; but as regards the principal item involved in the plaintiffs claim, namely, the share in village Gowaipur, an extract from the register of proprietary rights is printed at page 60. This shows that in the village in question the six executants of the deed owned in the year 1900 an entire Mahal of 16-annas and that they owned the same in certain specified shares. For our purposes it is sufficient to note that the shares of the two ladies came to 2/5ths of the whole and the shares of the four male executants to 3/5ths of the whole. The deed in suit purports to mortgage an 8 anna share out of the whole 16 annas, the said mortgaged share being the property of all the executants, but without any further specification. Now the learned Subordinate Judge, while finding it not proved that the two ladies, Musammat Khatun Bibi and Johra Bibi, had executed the deed in suit, has nevertheless given a decree for the sale of an 8-anna share, on the ground that the male executants of the deed in suit did own between them more than an 8-anna share out of the entire 16 annas, even after excluding the shares owned by the two ladies.

(2.) We have before us an appeal by those defendants against whom the suit was decreed, and a petition of cross-objections under Order XLI, Rule 22, Civil Procedure Code, has been filed by the plaintiffs. The appeal raises in the main three points:

(3.) Firstly, it is contended that execution of the deed in suit is not proved as against any of the executants other than Jamil Ullah.