DINSHAW DADABHAI ITALIA Vs. MOHAMAD MOHAMAD

JUDGEMENT

(1.) This appeal arises out of a suit filed on the Original Side of this Court by the first, second and third respondents for the administration of the estate of their grandfather, one Hussain Mean, who died in the month of December, 1919, leaving a large estate. The deceased had for many years traded in partnership with his two brothers, Mohammad Jaffar and M. Shamsuddin, and by his will he directed that the business should be carried on by his executors after his death until all his children had attained majority. The executors were Mohammad Jaffar, who is now dead, and his eldest son, Mohammad Yusuf, the fourth respondent, who was the second defendant in the suit. A decree for administration of the estate under the directions of the Court was passed, but before the suit came on for hearing Ananthakrishna Aiyar, J., added as defendants the appellant and the twenty-second respondent who is in the position of an appellant, having filed a memorandum of objections to the decree. The appellant and the twenty-second respondent claimed to be the mortgagees of certain properties belonging to the estate. The validity of the mortgages was challenged and in order that all questions arising out of the administration of the estate might be dealt with by the Court, the mortgagees were added as defendants. I will not pause to consider whether they should have been joined as defendants or whether the questions regarding their mortgages should have been left to be decided in separate proceedings, as all the parties to the suit and the appeal are agreed that, the questions with regard to these mortgages should be decided in the suit.

(2.) The mortgage in favour of the appellant was executed on the 25 March, 1927, by the surviving sons of the testator, the defendants 2 to 7, and by his widow, Mohammad Bi. There was another heir, a daughter named Hassan Bi, but she did not join in the execution of the deed. The properties mortgaged consisted of five items, two of which were sold before the suit was instituted. It is common ground that the mortgage was created for the purposes of the business, but all the properties charged belonged to the general estate of the testator. Lakshmana Rao, J., who tried the suit held that the executors were not entitled to charge the assets of the testator's general estate for the purposes of carrying on the business and that the mortgage was valid merely to the extent of the respective interests of the executants in the properties charged. The appellant contends that by the will the executors were given full power to mortgage the general assets of the estate for the purposes of the business, and that as the surviving executor had executed the deed, the estate is bound, notwithstanding that he was not described as an executor in the document. The appellant also says that even if the mortgage is invalid so far as the estate is concerned he is entitled to rank as a creditor of the testator to the extent of Rs. 20,000.

(3.) The mortgage in favour of the twenty-second respondent is dated 16 October, 1928 and embraces 25 items of property. It was executed during the pendency of the suit and the learned Judge held that the doctrine of lis pendens applied. He also held that the mortgage was invalid as against the estate for the reason which applied in the case of the appellant's mortgage. All the properties mortgaged belonged to the general estate and the mortgage has been created for the purposes of the business. These facts are not in dispute. On behalf of the twenty-second respondent it is said that the learned Judge erred in applying the doctrine of lis pendens and that he should have held that the mortgage was binding on the estate and not merely on the interests of the heirs who had signed the deed, namely, the defendants 2 to 7. The only questions raised in the appeal are those relating to the two mortgages.