SYED LUTF ALI KHAN Vs. FUTTEH BAHADOOR

JUDGEMENT

(1.) THE Respondent Futteh Bahadoor was the proprietor of two-thirds of a revenue free estate, consisting of mouzah Jugdispore and other mouzahs and dependencies, of which he had inherited one-half and had purchased the other half. He was also the proprietor of the whole of a revenue paying estate called Ranipore. On the 14th of July, 1875, he executed a mortgage bond in the usual form, by which, after stating that he had borrowed Rs. 35,000 on interest from Haji Nawab Syed Velait Ali Khan (the second Respondent) stipulating to pay interest at 1 rupee per cent, per mensem and mortgaging, pledging, and hypothecating the shares of the mouzahs specified below owned and possessed by him, he declared that in case of non-payment of the principal on the completion of two years, or within that period, Velait Ali Khan should be at liberty to realize the principal with interest by instituting a suit and obtaining a decree, and executing the same till the realization of the whole of the decretal amount from the property mortgaged in the bond, and in case of its not being sufficient, from other immovable properties and from his person. The mouzahs- specified below were Ranipore one-third share, Jugdispore one-third share, and one-third share of seven other mouzahs. On the 18th of December, 1877, Futteh Bahadoor executed a similar mortgage of another one-third share of Ranipore and of the same one-third of Jugdispore to Juggernath Singh (the 3rd Respondent), and another person named Baijnath Singh, to secure repayment in one year of Rs. 7,000, with interest at 3 per cent, per mensem.

(2.) IN 1878 Velait Ali Khan sued Futteh Bahadoor for Rs. 47,964. 7. 1. 12, principal and interest due on his mortgage. On the 20th of December, 1878, Futteh Bahadoor filed a petition stating that Rs. 4,645. 3. 2. 8 had been remitted by the Plaintiff out of the money claimed, on condition that the petitioner should pay the whole of the principal amount, with costs, and interest at the rate of 1 rupee per cent., on the 20th of December, 1879, and praying that according to this admission of claim the case might be decreed in favour of the Plaintiff, allowing the mortgage of the property to stand. And on the same day the Court made a decree in accordance with this agreement. Default having been made in payment of the money, Velait Ali Khan in 1880 took proceedings for execution of the decree, and, on the 9th of April, 1880, the Court issued an order for attachment of the right and interest of the judgment debtor, "comprising" the one-third of Ranipore and one-third of Jugdispore "mortgaged in the bond and decree." The other mouzahs are not mentioned, and it does not appear that anything has been done in respect of them. The attachment was made on the 20th of May, 1880. In the meantime Jugul Kishwar, who seems to have taken the place of Baijnath Singh, and Juggernath Singh, had, on the 2nd of April, 1879, obtained a decree against Futteh Bahadoor on the second mortgage bond, in execution of which, on the 13th of July, 1880, an order was issued to attach one-third "the right and interest of the debtor" out of the entire of mouzah Jugdispore, &c., and one-third "the right and interest of the debtor" in mouzah Ranipore. The attachment of Jugdispore was made on the 6th, and of Ranipore on the 10th of August, 1880.

(3.) ACCORDING to the evidence of Gunga Pershad, Futteh Bahadoor was the real purchaser, Ram Padaruth's name being used by him. The First Court considered that Ram Padaruth must be held to be the real purchaser, but the High Court, on the appeal, did not agree in this, and held that Ram Padaruth was a benamdar for Futteh Bahadoor. Their Lordships agree in this with the High Court, which properly remarked that Ram Padaruth had not ventured to come into the witness box to say that it was really a purchase by him on his own. account.