GULZARI LAL Vs. AZIZ FATIMA

JUDGEMENT

(1.) The appellant here, Babu Gulzari Lal, was the plaintiff in the court below in a suit brought for the recovery of mortgage money alleged to be due to him in respect of two mortgages executed in his favour on the 22nd of March, 1911, by one Sayid Ali Ahsan, The mortgage transaction was cast in the form of zar-i-peshgi leases and the mortgage money was Rs. 6,000. The property comprised in the mortgage consisted of a certain zamindari share of the mortgagor, situate in a village called Kura Mai and also a house situate in the town of Marehra. The first defendant in the suit was the mortgagor, Ali Ahsan, and in addition to him there were 18 other defendants who were represented to have interests of one kind or another in the property mortgaged. The suit, as we have said, was a suit for sale, but the claim was not merely for sale of the property mortgaged under these documents of the 22nd of March, 1911. There was in addition a claim to bring to sale certain other property which had been mortgaged under two documents, dated respectively the 29th of July, 1907, and the 1st of September, 1908. The plaintiff alleged that these two latter mortgages had been paid off by him: that he was entitled accordingly to the benefit of these mortgage securities, and could, therefore, call upon the court to bring the properties affected by them to sale.

(2.) Before proceeding to discuss the matters which arose for decision in the court below, it is necessary to say a few words regarding a suit which was brought in the court of the Assistant Judge of Aligarh in the year 1911 just after the mortgages now in the suit had been executed in the plaintiff s favour. The second defendant, namely, Musammat Aziz Fatima, brought a suit against Babu Gulzari Lal and his mortgagor, Ali Ahsan, for specific performance of a contract of mortgage. In this suit Aziz Fatima alleged that Ali Ahsan had, on the 17th of March, 1911, contracted to give her a zar-i-peshgi lease of mauza Kura Mai. She alleged that the agreement had been completed by the tender and acceptance of earnest money, and she went on to say that on the 22nd of March, 1911, the mortgagor, Ali Ahsan, had fraudulently executed two documents of mortgage (zar-i-peshgi leases) in favour of Gulzari Lal. Her allegation was that this was a collusive transaction which Ali Ahsan and Gulzari Lal had entered into for the purpose of defeating her rights. She claimed that at the time Gulzari Lal took these transfers from Ali Ahsan, he was well aware of the previous agreement of Ali Ahsan to execute a mortgage in her favour. Accordingly she claimed specific performance of the agreement of the 17th of March, 1911, and also a declaration that the transfers which had been made in favour of Gulzari Lal on the 22nd of March, 1911, were void and not binding upon her.

(3.) The lady s claim was decreed in the court of first instance. The defendant, Ali Ahsan, was directed to execute a zar-i-peshgi lease in favour of the lady according to the terms of the draft which was filed, and it was further declared that the documents executed in favour of Gulzari Lal on the 22nd of March, 1911, were void as against Aziz Fatima. This decree was upheld in appeal by a Bench of this Court in a judgment dated the 28th of July, 1913. The result of this litigation, therefore, was that the document of mortgage which Ali Ahsan had contracted to execute in favour of Aziz Fatima was executed under the order of the court in her favour. Now we have the present suit brought by Gulzari Lal on the strength of the documents of the 22nd of March, 1911. Various defences were put forward by the various defendants who were impleaded, but it will not be necessary for us to refer to all the pleas taken in defence but only to such of them as are necessary to be mentioned for the purpose of disposing of the single point which has to be decided in this appeal.