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Darbari Lal and anr. Vs. Mahbub Ali Mian and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All538a; 101Ind.Cas.513
AppellantDarbari Lal and anr.
RespondentMahbub Ali Mian and ors.
Excerpt:
- - we are of opinion that both these points are well-founded, and we have been guided to that decision by the principles laid down in the case of chenvirappa v. she thereby acquired certain well-known rights. section 140 of act 9 of 1872 makes it perfectly clear that these rights accrue to a surety when the surety has done 'all' that he was liable to do......had preferential right to the payment of the moneys secured by their mortgage in priority to one rani barkatunnissa.2. the learned subordinate judge decided that the mortgage was effective in so far as it concerned the share of the wife and of the two major sons, defendants nos. 1 and 2. he also held with regard to rani barkatunnissa that she stood on an equal footing as regards her advances with the plaintiffs. the plaintiffs appealed from this decision, and the ground they took is that as between khurshed ali mian and mt. latifunnissa, his wife, mt. latifunnissa was the owner of the entire property, and as such was competent to mortgage it. they alleged the further ground that the sons and daughters were not competent to question the validity of an award and decree now about to be.....
Judgment:

1. This was a suit brought in the Court of the Subordinate Judge of Shahjahanpur, to enforce a mortgage of the 16th of January 1913, executed by the wife and sons of one Khurshed Ali Mian, deceased. The plaintiffs also alleged that they had preferential right to the payment of the moneys secured by their mortgage in priority to one Rani Barkatunnissa.

2. The learned Subordinate Judge decided that the mortgage was effective in so far as it concerned the share of the wife and of the two major sons, Defendants Nos. 1 and 2. He also held with regard to Rani Barkatunnissa that she stood on an equal footing as regards her advances with the plaintiffs. The plaintiffs appealed from this decision, and the ground they took is that as between Khurshed Ali Mian and Mt. Latifunnissa, his wife, Mt. Latifunnissa was the owner of the entire property, and as such was competent to mortgage it. They alleged the further ground that the sons and daughters were not competent to question the validity of an award and decree now about to be mentioned.

3. In the year 1896, Khurshed Ali Mian was the owner of the property in dispute. He was in embarrassed circumstances, and by arrangement with his wife she put forward a claim to her dower. The matter was submitted to arbitration, and under the terms of the award the immovable property, the subject-matter of this suit was transferred to her in extinguishment of her claim to dower. This award was dated the 6th of July 1896. On the 18th of August of the same year a decree in terms of the award was passed by the Subordinate Court, and mutation in favour of the wife followed. Lalta Prasad was a creditor. He did not believe in the genuineness of these proceedings and commenced a suit for a declaration that they were in fraud of creditors; and on the 6th May 1897, obtained a decree. On the 20th of November 1897, the husband and wife joined in a mortgage to Lalta Prasad, and again on the 14th of June they executed a simple mortgage for Rs. 3,000 in favour of Darbari Lal, the present plaintiff. On the 10th of August 1899, they executed a second mortgage in favour of Lalta Prasad. Khurshed Ali Mian died in 1905, and in October 1906 a considerable sum of money being outstanding, Rani Barkatunnissa became surety and paid off all the moneys due under the three mortgages with the exception of Rs. 12,500 due to Lalta Prasad, and Rs. 1,500 due to Darbari Lal. The mortgage in suit was created to pay off these two sums.

4. Two points arise in this appeal. If we are of opinion that as between Khurshed Ali Mian and Mt. Latifunnissa the latter was the owner of the entire property by virtue of the decree of the 18th of August 1896, collusive though it was, then the plaintiff is entitled to succeed as against the only two respondents who are appearing. They are respectively Mt. Hasina Begam and Mt. Farmudi Begam. The appellants assert that this statement is a correct representation of the law and further that the two appellant daughters cannot question the validity of the decree passed in favour of their mother against their father. We are of opinion that both these points are well-founded, and we have been guided to that decision by the principles laid down in the case of Chenvirappa v. Puttappa [1887] 11 Bom. 708. We are of opinion that once Khurshed Ali Mian permitted a decree to be passed against him, in so far as he and his representatives were concerned, he was not thereafter able as against his wife, to assert the invalidity of such decree. That decree was, however, open to be impeached by a creditor; and it was, as we have said, in fact, successfully impeached. In our opinion the legal effect of the decree was as between husband and wife to invest in the wife the property mentioned in the award, and in the terms of the award. It follows from that she had a right to execute the mortgage in suit in the year 1913. We are, therefore, of opinion that on this point the appeal succeeds.

5. Now as regards the position of Rani Barkatunnissa, it is unfortunate that she is not represented in this appeal. But even if she were, we are of opinion that no authority could have been cited to us which would support the decision of the Subordinate Judge, or destroy the contention of the plaintiffs, that in the circumstances of the case their mortgage is entitled to priority. The point is a very short one. Mt. Barkatunnissa in the year 1906 stood surety. She thereby acquired certain well-known rights. One of such rights incidental to the position of a surety, is that if the surety is called upon to pay the principal's debt and does, in fact, pay the whole of it, the surety is entitled to step into the shoes of the creditor, and to have for his own benefit any rights which the creditor happens to have against the debtor. Section 140 of Act 9 of 1872 makes it perfectly clear that these rights accrue to a surety when the surety has done 'all' that he was liable to do. Now in this case it is conceded that Rani Barkatunnissa did not pay the whole of the indebtedness that existed between the creditor and the principal debtor, but a part only, and, therefore, she was nothing more than a creditor having a claim upon the principal debtor. She acquired none of the fights of either Lalta Prasad or Darbari Lal under any of the documents in question. Therefore, the plaintiff's rights acquired by them under the mortgage of the 26th of January 1913, took, in our opinion, priority over the claims of Rani Barkatunnissa. In this respect also we think the appeal succeeds.

6. We, therefore, modify the decree of the lower Court and decree the claim as prayed. We give to the plaintiff the costs of the appeal in so far as they relate to the issues raised by the Respondents Nos. 5 and 8 together with fees in this Court on the higher scale.


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