AUGHORE KUMAR GANGULI Vs. MOHAMED MUSSA

JUDGEMENT

(1.) This is a suit filed by the plaintiffs J. Nos. 1 to 9 as the heirs of one Khudajannissa Begum and by plaintiff No. 10, as the assignee of a moiety of the interest of plaintiffs Nos. 1 to 9 as such heirs. The suit relates to two properties (1) a zemindari known as Pargana Amirpur Balanda distinguished by Towzi No. 586 in the collectorate of the 24-Parganahs and (2) a lakhiraj resumed zemindari known as Mauza Ranigachi and Goberdhanpur distinguished by Towzi No. 1161 in the same collectorate. The second estate, we are told, was included in and has been carved out of the first estate. By their plaint as originally framed the plaintiffs asked for possession of the properties in suit on the ground that a mortgage of 22 July, 1848 to which those properties had been subject had been paid off; they further prayed that an account might be taken of what was due to the defendants as mortgagees under that mortgage; that if defendants had been over-paid a decree might be passed against them for the excess, and that if anything were found due to the defendants the plaintiffs might be allowed to redeem the said properties, the plaint also contained a prayer for a declaration that a mortgage, dated 4 April 1871, and executed by Khudajannissa Begum in favour of Aruna Prakash Gangully was invalid and inoperative, and that a deed of gift by the same lady to Mirza Ahmed Ali Beg, the husband of her grand-daughter, dated 14 September 1887, was a benami transaction and did not operate to convey any right or title to the donee. These last prayers, which were comprised in paragraph 3 of the prayer of the plaint, were given up by the plaintiffs at the hearing and were by order of the 13 August 1908 expunged. The plaint, however, was not further amended, nor was any prayer added for redemption of the mortgage of 1871. The learned Subordinate Judge has passed a decree in favour of the plaintiffs for an account and for redemption of both the mortgages, and has further allowed the plaintiffs their costs of suit against the defendants Nos. 2, 3 and 4. The first defendant has admittedly no present interest in the properties in suit, and it is not clear why the decree for account was passed against him, He appears to be siding with the plaintiffs. Defendants Nos. 2, 3 and 4 have preferred this appeal.

(2.) There is little or no dispute as to the facts of the case, but as they have not been fully stated by the learned Subordinate Judge it may be as well that we should set them out in detail. By a mortgage of 22 July, 1848 Munshi Fazlul Karim conveyed the two properties, in suit along with a very large number of other properties to one Ram Chand Mukerjee by way of mortgage to secure a sum of Rs. 1,40,000 and interest. That deed comprised besides the Pargana Amirpur Balanda 14 other properties, some of which belonged solely to Munshi Fazlul Karim, and some to him and his brother Manshi Bazlur Rahim jointly. In these latter only the moiety of Munshi Fazlul Karim was mortgaged.

(3.) By a bill of sale dated 20 September 1850 Munshi Fazlui Karim sold the Pargana Amirpur Balanda, subject to the above mentioned mortgage, to his wife Khudajannissa Begum. This deed is not forthcoming. We can only gather its terms and the property comprised in it from recitals in later documents. It appears to have been a transfer in lieu of dower.