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Mohammad Khan Vs. Mt. Nasiban and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All592
AppellantMohammad Khan
RespondentMt. Nasiban and ors.
Excerpt:
- .....pay a personal debt of the son. it is true that the son by executing the promissory note paid the father's debt, but he did that in his own capacity and not in the capacity of the heir to the estate of his father. the two cases cited by the learned counsel for the appellant, hamir singh v. mt.. zakia [1875] 1 all. 57 (f.b.) and jafri begam v. amir mohammad khan [1885] 7 all. 822, are distinguishable. we may cite a more recent case than those two decided by their lordships of the privy council: balwant singh v. maharaj singh [1912] 34 all. 296. in this case sheoraj singh and maharaj singh were two brothers. on the death of their father sheoraj singh executed a mortgage of rs. 3,00,000 in favour of the bank of upper india and executed a mortgage purporting to act for himself. when a suit.....
Judgment:

Mukerji, J.

1. We do not think that there is any force in this appeal. The facts are given in extenso in the judgment of the learned single Judge of this Court and briefly may be stated as follows: A Mahomedan Wahid died leaving him surviving one son and five daughters. He was in debt when he died. The son gave a promissory note in payment of one of the debts. The creditor on foot of the promissory note brought a suit against the son alone and having obtained a decree brought a, house belonging to Wahid to sale. The five daughters of Wahid now ask for a declaration that they have got their share (five-sevenths) in the property. This decree they have got and the decree is unhampered by any direction; that the plaintiffs must pay a proportionate share of the debt due on the promissory note, before they can obtain the declaration.

2. In this appeal the auction-purchaser of the house contends that the daughters of Wahid cannot get their share without contributing towards the debt of their father. The simple answer to this question is that there was no debt of the father to pay which the property was sold. The son of Wahid took upon himself the responsibility of executing a promissory note. It was on this promissory note that a decree was made and the property was sold to pay a personal debt of the son. It is true that the son by executing the promissory note paid the father's debt, but he did that in his own capacity and not in the capacity of the heir to the estate of his father. The two cases cited by the learned counsel for the appellant, Hamir Singh v. Mt.. Zakia [1875] 1 All. 57 (F.B.) and Jafri Begam v. Amir Mohammad Khan [1885] 7 All. 822, are distinguishable. We may cite a more recent case than those two decided by their Lordships of the Privy Council: Balwant Singh v. Maharaj Singh [1912] 34 All. 296. In this case Sheoraj Singh and Maharaj Singh were two brothers. On the death of their father Sheoraj Singh executed a mortgage of Rs. 3,00,000 in favour of the Bank of Upper India and executed a mortgage purporting to act for himself. When a suit was brought on foot of the mortgage Maharaj Singh was found to be not liable. Then it was contended that Sheoraj Singh had acted on behalf of the family and had paid up ancestral debts, and on that ground the brother Maharaj Singh and his share in the property should be held liable. Their Lordships of the Privy Council repudiated the contention.

3. We think that the judgment of the learned single Judge of this Court is right and no question of equity arises in the appellant's favour in the circumstances of the case. The appeal is dismissed with costs.


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