MOHAMMAD NIAZ AHMED KHAN Vs. LALA NANNHE LAL

JUDGEMENT

(1.) This is an appeal by some of the defendants in a suit for sale on foot of a mortgage of the 30th, of April, 1919 which had been executed by one Mr. Muhammad Ismail Khan in favour of the plaintiff-respondent.

(2.) Muhammad Ismail Khan died on the (sic) of November, 1919. In September, 1919 Muhammad Ismail Khan had executed a deed of waqf. Ex. 10, by which he had appointed certain persons as mutwallis. Defendants Nos. 1 4 are the legal heirs of Muhammad Ismail Khan defendants Nos. 5-9 are the trustees under the waqf and the 10 defendant is a subsequent mortgagee of the property in suit. Various pleas were taken by the defendants and the points that were in controversy before the Court below were whether Muhammad Ismail Khan had validly executed the mortgage, and the mortgage was legally enforceable, and whether the rate of interest was excessive and the last question, which was the only question in controversy before us, was whether an agreement had been entered into between the plaintiff Nannhe Mal and the mutwallis on the 19 of December, 1924 that in full satisfaction of the, mortgage debt the plaintiff would take a conveyance of six shops and a sum of Rs. 7,000 in cash.

(3.) The learned Subordinate Judge has decided all the issues in favour of the plaintiff. He found that the defendants had not proved the alleged agreement and further the evidence was admissible to prove the agreement which would have amounted to a variation of the original contract, namely, that entered into by Muhammad Ismail Khan with the plaintiff on the 9 of December, 1919.