ABDUL MALIK Vs. QAMARUDDIN

JUDGEMENT

(1.) The appellant Abdul Malik is the son of Mt. Najmunnissa who is one of the respondents to the present appeal, the main respondents being Qamar Uddin and Nazir Uddin, creditors in the case arising out of an application made by Mt. Najmunnissa under Section 4, Encumbered Estates Act, 1934. Originally the application under Section 4, Encumbered Estates Act, was made both by Mt. Najmunnissa and her son, the present appellant. Later, the name of the appellant was deleted on an objection made by the creditors that he was not a landlord and thereafter Mt. Najmunniasa has been treated as the sole landlord in the case. Some house property stood in the name of the appellant. On 12 December 1922, he executed a tamliknama in favour of his mother with respect to that property conferring upon her the ownership of the house during her life time. On 20 November 1930, the mother executed a deed of relinquishment with respect to that property in favour of the appellant in order to enable him to borrow money which he needed. Accordingly on the same date a simple mortgage deed was executed by both the appellant and his mother in favour of respondents 1 and 2 for a sum of Rs. 1500. The document shows that Mt. Najmunnissa had joined in the transaction merely by way of precaution. Subsequently on 17 February 1931, another document was executed by the appellant and his mother mortgaging the same property to the same person for a sum of Rs. 600. A third document was executed in the same manner in favour of the same person on 26th September 1931 by the appellant and his mother for a sum of Rs. 1092. Respondent 1 and 2 in due course obtained a decree against the appellant and his mother in the civil Court and proceeded to execute it against them by getting the property sold. Respondents 1 and 2 had also taken objection in the Encumbered Estates Act case that Mt. Najmunnissa had no share in the mortgaged property from which the creditors were entitled to realise their mortgage decree. The learned Special Judge allowed the objection of the creditors in the Encumbered Estates Act case. Mt. Najmunnissa had also objected to the execution of the mortgage decree by the creditors in the execution Court on the ground that no decree could be executed against her property during the pendency of the Encumbered Estates Act case. Her objection was dismissed by the execution Court. There were two appeals in the High Court arising out of the orders passed in these two cases. The High Court held that the house belonged to the appellant alone. Accordingly the appeal of Mt. Najmunnissa arising out of the orders passed by the Special Judge under Section 11 in the Encumbered Estates Act case was dismissed. But the appeal of Mt. Najmunnissa arising out of the execution case was allowed and it was held that until the respective liabilities of the judgment- debtors, namely Mt. Najmunnissa who was an applicant in the Encumbered Estates Act case and her son, the present appellant, had been determined under Sub- section (5) of Section 9 in the Encumbered Estates Act case the decree obtained by respondents 1 and 2 could not be executed. The following is reproduced from the judgment passed by the High Court in the appeal: We think, therefore, that the learned Special Judge was not right in rejecting the objection of Mt. Najmunnissa and he should have proceeded to apportion the liability between Najmunnissa and Abdul Malik. After he had BO apportioned the liability or after he had held that Najmunnissa, if that be the case of the parties, was not liable at all under the mortgage and the entire liability was that of Abdul Malik, the decree could be executed for such sum as would thus be found due against him. The execution appeal is, therefore, allowed to this extent. The case accordingly went back to the learned Special Judge, who, after recording the evidence produced by the parties and hearing arguments, held that the appellant alone was liable to contribute under the joint mortgage decree and that Mt. Najmunnissa was not liable to any contribution under that decree. From this order of the learned Special Judge, Abdul Malik has preferred this appeal.

(2.) It would appear that on a previous occasion Abdul Malik had also made an application in the execution Court for stay of the execution proceedings on the ground that as he was a joint debtor along with Mt. Najmunnissa it was necessary that the Special Judge should determine his separate liability under the joint decree under Sub-section (5) of Section 9 in the Encumbered Estates Act case before the decree could be executed against him. This application was allowed by the Court executing the decree and the creditors came up in appeal to the High Court. The High Court dismissed the appeal and upheld the orders passed by the execution Court. Among other things it was contended before the High Court that Mt. Najmunnissa had been joined in the mortgages only as a surety and was, therefore, not personally liable for the payment of the debt in view of proviso (2) to Clause (d) of Section 9, Encumbered Estates Act. The High Court did not accept the contention that Mt. Najmunnissa was a surety and held that so far as the decree was concerned she must be deemed to be a joint debtor and that therefore the execution of the decree must be stayed until the special Judge had determined the liability of the judgment-debtors inter se under the decree.

(3.) It is contended on behalf of the appellant that the effect of the two orders of the High Court in the two appeals is that Mt. Najmunnissa must be treated as a joint debtor along with her son in the mortgage decree and that it is not therefore possible for the Special Judge to hold that she is not liable to contribute anything under that decree. We are not prepared to accept the interpretation which learned Counsel for the appellant wishes to put upon the two orders of the High Court referred to above. The possibility of Mt. Najmunnissa not being liable to make any contribution under the joint decree was, as a matter of fact, contemplated by order passed by the High Court in one of these appeals and the words which we have reproduced above from the judgment are not capable of any other interpretation.