MT MEHDATUNNISSA BEGUM Vs. MTHALIMATUNISSA BEGUM

JUDGEMENT

(1.) These appeals arise out of a suit for the recovery of Rs. 7222, the amount for which the plaintiff's properties were sold in execution of a mortgage decree. In March 1919, one Saiyid Badshah Nawab died, leaving (inter alia) to his heirs 31 properties subject to a mortgage. Shortly before his death the amount of this mortgage was settled at Rs. 61,200 and odd. Saiyid Chhote Nawab, a brother of the mortgagors, took a one-third interest in the mortgaged properties and in the mortgage debt as one of the heirs. In August 1920 he sold his share in five of the properties to defendant 2 for Rs. 6581-6-0, which sum was left with the purchaser, for payment towards the mortgage debt. In October 1920, he similarly sold one property to defendants 3 and for Rs. 3000, which amount was to be paid by the purchaser towards the mortgage. The same month he also gave five other properties to defendant 5, wife of defendant 6, in mokarrari for a consideration of Rs. 4500 which was left with defendant 5 for payment towards the mortgage. In March 1924, Saiyid Chhote Nawab divided the remaining properties together with his debts among his heirs, one son and three, daughters, namely the plaintiff, defendant 1 and defendant 8 by tamliknamas under which each daughter was required to pay the debts assigned to her and was also made liable, in case any such debt had to be paid by some other heir, to compensate, such heir. In this way defendant 1 was liable to pay Rs. 10,818 and odd, the balance of the principal of the mortgage debt due from Saiyid Chhote Nawab after deducting the amounts left with purchasers (badminhai zimme kharidaran) towards Saiyid Chhote Nawab's share of the mortgage debt. The mortgage was, sued upon in due course, and a decree obtained against Saiyid Chhote Nawab and his transferees for his share of the mortgage debt in 1926.

(2.) Under the mortgage decree the properties assigned to defendant 1 were to be the properties to be "first sold in execution," but defendant 1 succeeded in obtaining an order that on her depositing Rs. 15,500 her properties were not to be sold. She made the deposit in May 1928. In June 1929, the properties transferred to defendants 3 and 4, 5 and 6, and 2 were sold in execution for Rs. 2025, Rs. 5025 and Rs. 8055, respectively. The order passed by the executing Court in favour of defendant 1 on condition of her depositing Rs. 15,500 had not however satisfied defendant 1, who endeavoured to obtain a reconsideration of it, and then appealed to the High Court. As a result, it was ordered that the mortgagee decree- holder was not to proceed against the properties of defendant 1 unless he refunded the deposit of Rs. 15,500, but that this was not to affect the right of the plaintiff in the present suit to claim contribution from her. The execution then proceeded, and only came to an end when five properties of the plaintiff's were sold for Rs. 7222 on 15 December 1932. On 22 December 1933, plaintiff brought the present suit for the recovery of this money, besides Rs. 1000 as cost of the execution proceedings, with interest at 1 per cent, per mensem. Plaintiff's case was that she had suffered this loss on account of the failure of defendant 1 and of defendants 2 to 6 to pay those portions of the mortgage debt that they had undertaken to pay.

(3.) The lower Court held that defendant 5 (with whom goes defendant 6) had paid her share to Saiyid Chhote Nawab himself before the execution of the tamliknatas in favour of his daughters, and that defendants 1 to 4 were liable for the loss caused to the plaintiff. The claim of the plaintiff was accordingly, decreed rateably against defendant 1, defendant 2, and defendants 3 and 4, the costs claimed being disallowed together with interest. Against this decree defendant 1 has filed First Appeal No. 65 and defendant 2, First Appeal No. 59. The learned Subordinate Judge had no difficulty in finding privity of contract between the plaintiff and defendant 1 on the ground that the tamliknamas in favour of the daughters formed the consideration for one another. This view has not been, as it cannot be, seriously contested. As regards defendant 2 also, the liability is clear Isri Prasad v. Jagat Prasad A.I.R (1937) . Pat. 628 on the footing (approved by their Lordships of the Judicial Committee in Ganeshi Lal V/s. Charan Singh that there passed to the plaintiff the benefit of the contract by which the money was to be applied by defendant 2, so that the plaintiff could say: "I have a contract which frees me from the liability to contribution which the Section ( Section 82, T.P. Act), would otherwise impose upon me."