ZAFAR AHSAN Vs. ZUBAIDA KHATUN

JUDGEMENT

(1.) This is an appeal by four defendants in a suit for sale on a mortgage executed by one Mazhar Ahsan. Mazhar Ahsan, the mortgagor, married three ladies and appellant 1 is the son of Mazhar Ahsan by the eldest wife. The other three defendants are the children by the second wife and the plaintiff is Mazhar Ahsan's daughter by the third wife. The plaintiff's mother died in the year 1911. In order to pay off the dower debt due by Mazhar Ahsan to the mother of the plaintiff the mortgage-deed in suit dated 17 April 1914, was executed by Mazhar Ahsan in favour of the plaintiff. The deed, Ex. 1 at p. 45, sets out the consideration to be Rs. 3,500 which Mazhar Ahsan states was due by him to Zubaida Khatun, the mortgagee, which she had inherited partly from Mt. Hasan Bano her mother and partly from Mt. Zahida Khatun, the sister of the mortgagee. Mt. Zahida Khatun died after the death of her mother and before the execution of the mortgage-deed. The defence to the suit was every conceivable point that could be taken in the case as will be apparent from the points argued by the learned advocate for the appellant before us.

(2.) The learned Subordinate Judge granted a decree for sale of the mortgaged property except a one-eleventh share which the plaintiff had inherited from the estate of Mazhar Ahsan who had died before the institution of the suit. As we have already stated the appellants are four in number. Appellant 1 has, in addition to the grounds taken by the other appellants, urged that the terms of an award which was made upon a reference by him and his father after the death of his mother bars the plaintiff's claim on the mortgage inasmuch as Mazhar Ahsan could not transfer any property according to the award. The award is Ex. E-1 and is to be found at p. 33. The arbitrator as regards the third issue held that Mazhar Ahsan will have no power to transfer the zamindari properties which were on the date of the award, namely, 1 February 1891, owned and possessed by the defendant. The short answer to the plea, and a complete answer is that it has not been proved, as a matter of fact, as held by the learned Subordinate Judge, that the properties mortgaged by Mazhar Ahsan were in his possession on 1 February 1892. The learned advocate for the appellants has contended that inasmuch as in a suit in the year 1917 all kinds of pleas were put forward by the defendants but no plea was taken that the property mortgaged was not in Mazhar Ahsan's possession on 1 February 1892, the conclusion is that the property was in his possession on that date. We are unable to accept this contention.

(3.) The first paint taken by the learned advocate for the appellants on behalf of all the appellants is that the mortgage-deed being in favour of a minor was void in law. The contention of the learned advocate is that even if a minor pays full consideration for a mortgage a transfer of immovable property in favour of a minor is void in view of the ruling of their Lordships of the Privy Council in the case of Mohori Bibee V/s. Dharmodas Ghose [1903] 30 Cal. 53. The learned advocate in support of his contention has cited before us the case of Navakotti Narayan Chetty V/s. Logalinga Chetty [1910] 33 Mad. 312. He has to confess that there is no other case supporting the contention put forward by him, but he probably does not know that there is a judgment of a single Judge of this Court which referred to the case in I.L.R., 33 Mad. 312 (2) and which was on appeal under Section 10, Letters Patent set aside, the Bench not following the case in Navakotti Narayan v. Logalinga Chetty [1910] 33 Mad. 312. The case in Navakotti Narayan V/s. Logalinga Chetty [1910] 33 Mad. 312 had been overruled by a Full Bench of the Madras High Court in the case of Raghavachariar V/s. Srinivasa Raghava Chariar [1916] 40 Mad. 308. Now turning to the case law as far as this Court is concerned that case in Navakotti Narayan V/s. Logalinga Chetty [1910] 33 Mad. 312 has never been followed and has been definitely distinguished and differed from except in the case we have mentioned, namely, Mt. Munni V/s. Madan Gopal [1915] 13 A.L.J. 185.