QANAYAT HUSAIN Vs. MTSAJIDUNNISA BIBI

JUDGEMENT

(1.) The plaintiff filed a suit for realization of Rs. 18,430-11-0 on the basis of a mortgage dated 25 July 1924, executed by her husband Syed Hyder Husain in favour of the plaintiff. The mortgage was for Rs. 17,000 and the amount was to carry interest at the rate of 8 annas per cent. per mensem, compoundable annually. The mortgagor had made payments from time to time which were all entered on the back of the mortgage deed and signed by the mortgagor. After the execution of the mortgage, the mortgagor had executed a deed of waqf dated 27 August 1925, and appointed his nephews, defendants 1 to 3, as mutwallis. Defendant 4 is the subsequent transferee. The mortgagor Syed Hyder Husain had died and the suit was filed against the mutwallis, defendants 1 to 3, and the transferee defendant i.

(2.) In defence, amongst others, two pleas were taken by the contesting defendant. Firstly, that the plaint had not been signed or verified by the plaintiff nor had it been presented by a duly appointed agent, as the advocate Mr. Sami Uddin had been appointed under a vakalatnama which did not bear the thumb- impression of the plaintiff. Secondly, that the defendants were entitled to the benefit of the U.P. Agriculturists Relief Act and the U.P. Debt Redemption Act.

(3.) The lower Court dealt with the first point in a very careful judgment and came to the. conclusion that the thumb-impressions on the plaint were not of the plaintiff, that the plaint was not verified by her and that it was presented by a person who had no authority to present it. The lower Court, however, allowed the plaintiff to sign and verify the plaint and sign the vakalatnama on payment of Rs. 100 as costs to the defendants. This sum of Rs. 100 was deposited in Court and the plaint was duly verified and signed by the plaintiff and a fresh vakalatnama was executed in favour of the learned advocate.