SABIR HUSAIN Vs. RIRASAT GHAUS

JUDGEMENT

(1.) This appeal arises out of a suit for contribution brought by the plaintiff- respondents, who are the heirs of one Sheikh Inayat. The latter executed a deed of usufructuary mortgage in favour of Mahabir Husain on 25 November 1893 in consideration of a sum of Rs. 12,000. Three villages, namely, Rethali which is now in question, Imadulmulk and Habibpur were mortgaged with possession, the usufruct to be appropriated by the mortgagee in lieu of interest. On the same date the mortgagee granted a lease of the mortgaged villages to the mortgagor at an annual rent of Rs. 1080. Rent fell in arrears, which were assigned by the mortgagee to one Nasair Husain, who obtained a decree in respect thereof on 1st March 1899 for recovery of Rs. 497-10-4. In execution of that decree village Rethali was attached and sold on 20 April 1901. One Sabir Ali was declared to be the purchaser. He sold his rights to Sabir Husain, defendant 1, appellant, son of the mortgagee, on 6 October 1903.

(2.) The original mortgagor having died, his heirs brought the suit No. 117 of 1912 for redemption of villages Habibpur and Imadulmulk on the allegation that the third village Rethali had been acquired by the mortgagee himself in the name of his son who was only a benamidar and that the integrity of the mortgage having been broken, the redemption of part was permissible. Sabir Husain was impleaded as a defendant in that case with his father, the original mortgagee. It was held that Sabir Husain was the real purchaser, and that redemption piecemeal was not permissible. Accordingly the Court passed a decree directing the plaintiffs of that suit to pay Rs. 12,000 (principal secured by the mortgage of 1893) declaring that on payment of that amount plaintiffs of that suit would be entitled to recover possession of two villages, namely Imadulmulk and Habibpur. It should be observed that on payment of the entire mortgage money then due all the three mortgaged villages would be freed from encumbrance. The Court, however, passed a decree in the following terms: The defendants shall deposit the sum of Rs. 12,000 in Court for payment to defendant 1 in the month of Jeth next and on such payment being made within the specified period the plaintiffs shall recover the possession of mauzas Imadulmulk and Habibpur. If such deposit is not made, those properties shall be sold and the proceeds applied in satisfaction of the mortgage debt, and in that case the defendants shall recover their costs.

(3.) On 19 June 1915 the heirs of the original mortgagor sold village Habibpur to one Muhammad Ismail and village Imadulmulk to one Sufi Ahmad Husain, leaving the entire consideration with the vendees for the satisfaction of the redemption decree already referred to. On 19 June 1915 the vendees deposited the required amount in satisfaction of that decree. We should mention that the two vendees were joined as co-plaintiffs in the redemption suit subsequent to sales in their favour by the heirs of the original mortgagor. A final decree followed on 19 June 1915, directing delivery of possession and retransfer of the two villages to the vendees who subsequently obtained possession. The present suit was brought by the plaintiffs, seven in number, who are the heirs of Inayat, the original mortgagor, for contribution and interest at the rate of 12 per cent per annum. They claim Rs. 17,932-10-8 of which Rs. 7,988-2-8 represents proportionate amount of the principal of the mortgage of 1893 and the rest is interest. Defendants 1 to 9 are the heirs of the original mortgagee Zakir Husain. Defendant 1 Sabir Husain, is the owner of village Rethali, as has been already mentioned. Defendants 10 and 11 are Ismail Khan and Sufi Ahmad Husain, the present owners of villages Habibpur and Imadulmulk. They are pro forma defendants and are not interested in the result of the suit. The only interest of defendants 2 to 9 in the suit is that they are eight out of nine heirs of the original mortgagee. Zakir Husain. Defendant 1 fills the dual capacity of an heir of Zakir Husain and the owner of village Rethali.