1. This is a suit on a mortgage of the 17th of September 1900, The executants of this deed were six persons. Jamil Ullah and Jalil Ullah, the two sons, and Musammat Khatun Bibi, the surviving widow of one Khalil Ullah, deceased, were the first three. The other three executants, Jolira Bibi, Mohammad Shibli and Muhammad Makki, were members of the same family, connected more or less distantly according to a pedigree which is to be found at page 2 of the printed record. The only point I desire to make about these three executants at present is that the pedigree does not show that they could have inherited any property from the deceased Khalil Ullah so as to be liable for payment of any portion of that gentleman's debts. The suit as brought is against the executant Jamil Ullah in person and the heirs of the remaining five executants, all of whom are since deceased. The Court below has found execution proved as against the four male executants and not proved as against the two ladies, Khatun Bibi and Johra Bibi. The mortgaged property as specified in the deed in suit consists of shares in three villages and certain house property and a grove, but the present suit is for realisation of the entire mortgage-debt from an 8-anna share of the judgment debtors in a single village, the name of which is variously written as Gowai or Gowaipur, and also from the dwelling house and the grove. We have no information before us as to the respective shares of the various executants of the deed in the dwelling house or in the grove; but as regards the principal item involved in the plaintiffs' claim, namely, the share in village Gowaipur, an extract from the register of proprietary rights is printed at page 60. This shows that in the village in question the six executants of the deed owned in the year 1900 an entire Mahal of 16-annas and that they owned the same in certain specified shares. For our purposes it is sufficient to note that the shares of the two ladies came to 2/5ths of the whole and the shares of the four male executants to 3/5ths of the whole. The deed in suit purports to mortgage an 8 anna share out of the whole 16 annas, the said mortgaged share being the property of all the executants, but without any further specification. Now the learned Subordinate Judge, while finding it not proved that the two ladies, Musammat Khatun Bibi and Johra Bibi, had executed the deed in suit, has nevertheless given a decree for the sale of an 8-anna share, on the ground that the male executants of the deed in suit did own between them more than an 8-anna share out of the entire 16 annas, even after excluding the shares owned by the two ladies.
2. We have before us an appeal by those defendants against whom the suit was decreed, and a petition of cross-objections under Order XLI, Rule 22, Civil Procedure Code, has been filed by the plaintiffs. The appeal raises in the main three points:
3. Firstly, it is contended that execution of the deed in suit is not proved as against any of the executants other than Jamil Ullah.
4. Secondly, it is contended that, even if execution be proved against any or all of the other executants, there has been no valid registration of the document as against any of the executants other than Jamil Ullah.
5. Thirdly, it is contended that, in any event, the decree should have been for the sale of 3/5ths of an 8 anna share and not an entire 8-anna share.
6. The remaining pleas in the memorandum of appeal are either summed up in the three contentions above stated 6r have not been seriously pressed.
7. In the memorandum of orocs objections the plaintiffs contend that execution was proved as against the two ladies Khatun Bibi and Johra Bibi and that effect should be given to this contention, if allowed, in any decree which this Court may pass.
8. It will be convenient to state at once that this petition of cross-objections was met at the outset by those defendants who represent the estate of Khatun Bibi and Johra Bibi, by a plea that the plaintiffs were not entitled to challenge the order of the Court below dismissing the suit as against the representatives of these ladies by way of a petition of cross-objections. The point is that the representatives of these ladies are arrayed along with the plaintiffs as respondents to this appeal. They were content to accept the decree of the Court below as passed and have not themselves appealed against it. In support of this contention reliance is placed upon a decision of this Court in Kallu v. Manni 23 A. 93, A.W.N (1900) 212 in which the principle contended for is laid down in broad terms. As a matter of fact the position has since been re-con-sidered by this Court in Abdul Ghani v. Muhammad Fasih 28 A. 95 ; 2 A.L.J. 667; A.W.N. (1905) 200. We have been referred also to decisions of other High Courts to be found in Bishun Churn Boy Ghowdhry v. Jagendra Nath Roy 26 C. 114 ; 13 Ind. Dec. (N.S.) 677; Shabiud-din v. Deomqorat Koer 30 C. 655; Jadunandan Prosad Singha v. Koer Kallyan Singh 13 Ind. Cas. 653 ; 16 C.W.N. 612 ; 15 C.L. J. 61; Nursey Virji v. Alfred H. Harrison 21 Ind. Cas. 7 ; 37 R. 511 ; 15 Bom. L.R. 781; Munisami Mudaly v. Abbu Beddy 27 Ind. Cas. 323 ; 38 M. 705 ; 27 M.L.J. 740; (1915) M.W.N. 45. It may be noted at once that it was in any event open to the plaintiffs, as respondents to the appeal, to support the decree of the Court below, in so far as that decree ordered the sale of a share of 8 annas, upon a ground which had been decided against them by the trial Court, namely, upon the allegation that the document in suit had, contrary to the finding of the Court below, been duly executed by Khatun Bibi and Johra Bibi. It was impossible, therefore, to close the mouth of the learned Advocate for the respondents or to refuse to re-consider this question of execution by the two ladies. As a matter of fact, under the peculiar circumstances of this case, it seems dear that the plaintiffs could not be blamed for acquiescing in the decree of the trial Court so long as that decree entitled them to bring to sale a full 8-anna share; but they had ground for re-asserting their original claim as soon as an appeal was filed on the plea that in any event only 3/5ths out of an 8-annas share should be ordered to be sold, Under the circumstances we think it was within the competence and discretion of this Court to permit the petition of cross-objections to be heard, even as against those original defendants to the suit who were arrayed as respondents to this appeal. If we had found the contentions urged in the petition of cross-objections to be well-founded in fact, we should have been prepared to give effect to them in our decision.
9. It is as well to take up at once this question of the execution of the deed in suit by Khatun Bibi and Johra Bibi. They were illiterate and pardanashin ladies and they do not purport to have executed the document in suit by signing it or by making their mark, or by means of their thumb-impressions. On behalf of Musammat Johra Bibi her name as executant of this deed purports to have been written by her son Naim Ullah; on behalf of Musammat Khatun Bibi, by her son Bashir Ullah. The question in issue is simply whether these two young men had authority to execute the deed on behalf of their respective mothers. Naim Ullah is dead, but Bashir Ullah was put into the witness-box on behalf of the defendants.
10. He admitted having written his mother's name as executant of the deed in suit, but refused to admit that he had her authority for so doing. He professed to have acted on assurances given him by Jamil Ullah, whom he regarded as the head of the family. Jamil Ullah, on the other hand, was put into the witness-box by the plaintiffs. He deposed that the document in suit was duly executed in his presence and that Nairn Ullah and Bashir Ullah wrote the names of their respective mothers as executants 'with the permission' of the said ladies. He was very reluctant to commit himself to any definite assertion as to the manner in which that permission had been obtained, but so far as it goes, the effect of his statement is as given above. Further, the plaintiff Behari Lal went into the witness-box and called 2 out of the 3 surviving marginal witnesses, the names of the witnesses called being Sitaram and Debi Prasad. We have had to consider all this evidence carefully in connection with the various admitted facts of the case and the inferences derivable from such facts. It is clear that the mortgagees in this case accepted as their security a document the validity of which, as regards the shares. of the lady executants, depended on their being able to prove the authority of Naim Ullah and Bashir Ullah to sign for their respective mothers. Moreover, the document was registered, as we shall have presently to consider, upon an admission of execution made by Jamil Ullah in his own behalf and on behalf of all the other executants. We, therefore, lack in this case the sort of direct safeguard of the interests of a pardanashin lady which is ordinarily provided by the procedure laid down in the Registration Act. If the plaintiffs in fact suffer any appreciable loss by reason of this defect in the nature of the security accepted by them and in the procedure adopted at registration, they are after all a good deal to blame, because they could certainly have insisted on the thumb-impressions of the two ladies, or at least their marks, being taken at the time of execution, and they could also have insisted on the registration of the document being effected only after direct admission of execution had been obtained from the ladies themselves. We are concerned simply with the question whether the evidence produced is sufficient to prove execution affirmatively as against the representatives of the two ladies. The evidence of Jamil Ullah has been attacked on both sides and cannot be relied on by either. Having committed himself before the Registration Officer to an admission of execution on behalf of the two ladies, he could scarcely say less than he has done in favour of the plaintiffs without running the risk of a criminal prosecution; on the other hand, he does seem to have been fairly careful to say nothing more in favour of the plaintiffs than he could help. So far as his own interests are concerned, he stands to gain rather than to lose by a decision in favour of the plaintiffs on the question of execution by the two pardanashin ladies. His evidence can best be dealt with by being put on one side altogether. We then have left the depositions of the plaintiff Behari Lai and the two attesting witnesses. The learned Judge of the Court below has come to the conclusion that this evidence does not satisfactorily prove that the two ladies were actually present, at the time of execution, in a room adjoining that in which the document was executed by the male executants, or that they were consulted at the time about the question of execution or gave the alleged authorisation to their respective sons to sign for them. There are undoubtedly serious discrepancies in the evidence and difficulties in the way of accepting it as it stands. There are passages in the deposition of the plaintiff Behari Lal which certainly suggest the inference that he was personally of opinion that Nairn Ullah and Bashir Ullah had authority to execute such a document as the mortgage in suit on behalf of their respective mothers under the arms of the power-of-attorney on the strength of which the registration was subsequently effected. If this was his impression it is an erroneous one, for the document in question does not confer any such general authority on the two young men. At the same time the existence of such an impression in the plaintiff's mind might well account for his having accepted the signatures of the two young men as sufficient, without any of the elaborate precautions which at the trial he endeavoured to prove that he had in fact taken. There are undoubtedly circumstances in the case from which a general inference might be drawn in favour of the statement that the two ladies in question must have known of this mortgage transaction and must have given at least a tacit permission to their sons to act on their behalf. At the same time I feel very strongly that the direct evidence by which the plaintiff has sought to prove an authorisation given verbally at the time of execution, after the deed had been read over and explained to the ladies, is quite unreliable. It has been rejected by the Court which heard it and I certainly do not feel prepared to reverse the finding at which the trial Court has arrived on this point. I think, therefore, that this finding must stand and that the execution of this deed by Khatun Bibi and Johra Bibi is not satisfactorily proved. It is not necessary, therefore, so far as these ladies are concerned, to go into the question whether there was a valid registration on their behalf.
11. The points raised in the memorandum of appeal may be more briefly disposed of. The first question is, whether execution is proved as against the male executants other than Jamil Ullah. Here I feel able to concur without hesitation in the conclusion arrived at by the learned Subordinate Judge. The evidence given by Jamil Ullah himself, by the plaintiff Behari Lal and by the two marginal witnesses does prove that the parties concerned in this transaction came together in the male apartments of the residential house of the mortgagors, that a draft deed was produced and the mortgage deed in suit faired out accordingly and that the male executants did sign the document then and there in the presence of the attesting witnesses. The plea, therefore, fails. It is worth noticing further in this connection that the bulk of the consideration consisted of a cash payment made to Jamil Ullah and of antecedent debts due from Khalil Ullah, while the property in suit had come to the lady executants from their own family and not from Khalil Ullah at all.
12. As regards registration, it has already been remarked that the document was presented for registration by Jamil Ullah alone. This he had a right to do, so that there was no invalidity about the presentation of the document. The only question is, whether Jamil Ullah was an authorised agent for the purpose of admitting execution on behalf of the male executants, within the meaning of Section 34 of the Indian Registration Act. There has been a great deal of controversy about the power of attorney under which Jamil Ullah purported to act. The original of this document has not been produced. The learned Subordinate Judge has admitted secondary evidence, on the ground that the original is somewhere in the possession or control of one or other of the defendants and that the plaintiffs seemed to have made all reasonable efforts to get the original before the Court. He has pointed out that there was one oversight on the part of the plaintiffs in the matter of service of notice on one possible person in whose possesion the original of this document might conceivably have been; but on an examination of the record as a whole I can see no reason whatever for holding that the Court below was not well within its discretion in admitting secondary evidence. The secondary evidence is of the most satisfactory character; a certified copy has been obtained from the registration department. There is a great deal of evidence tending to show that this document was, as a matter of fact, acted upon as a genuine and valid document by all the parties concerned in it for a period of years. The execution of the power of attorney was certified by the Registering Officer to have been made in his presence as required by Section 33 of the Indian Registration Act. He seems, as a matter of fact, to have taken the trouble to get it re-executed at the time of his visit to the house in which the lady executants were residing, even though it had previously been executed by all the persons concerned. On the whole, as regards the male executants of the mortgage-deed in suit at any rate, I can see no good reason for holding that Jamil Ullah was not their authorised agent under this power-of-attorney to admit execution on their behalf. There has, therefore, been sufficient proof of execution and of valid registration as against all the male executants.
13. The only point on which the appeal must succeed is the third point. The reasons given by the learned Subordinate Judge for ordering the sale of an entire 8-anna share, after his finding against the validity of the execution of the mortgage deed by Khatun Bibi and Johra Bibi, will not bear examination. He has dragged in the provisions of a section of the Transfer of Property Act which are obviously inapplicable to the state of facts before us. Moreover there is in the pleadings on this record something quite decisive against the plaintiffs. It has been pointed out that the executants of the deed in suit owned the entire 16 annas of this particular Mahal in village Gowaipur. Eight annas were mortgaged to the plaintiffs by the deed in suit. The remaining 8 annas, according to the plaint itself, had since been mortgaged to certain other persons who were impleaded as defendants Nos. 24 to 27 and 28. With regard to these defendants the plaintiffs themselves contended that the 8-anna share in respect of which the present suit was brought must be treated as wholly distinct from the 8-annas share mortgaged to these other defendants. We have been told in the course of argument that, as a matter of fact, this point is res judicata as between the plaintiffs and the other mortgagees in connection with a certain other litigation. There has been some negligence on the part of the defendants-appellants in laying proper materials in support of this contention before this Court, but Tinder the circumstances it is not necessary to go farther into the point. On the mortgage deed in suit, read in connection with the entries in the register of proprietors, the fair inference would be that each of the executants of the deed in suit had mortgaged one-half of his share in the entire Mahal of 16 annas; and this was the contention which the plaintiffs themselves in paragraph 4 of their plaint asked the Court to accept. It follows, therefore, that, whatever additional shares the male executants of the mortgage deed may have possessed in the other half of the Mahal, that is to say, in the 8-anna share mortgaged to defendants Nos. 24 to 27, those shares are not subject to the plaintifls' claim in the present suit. The plaintiffs are only entitled to realise their mortgage debt against the total of the shares of the male executants in the 8-anna share covered by the deed in suit, that is to say, in 3/5ths out of the said 8-annas. The result is that this appeal should succeed to this extent only, that the order for sale be not for the sale of an 8 anna share but for the sale of 3/oths out of the share of 8-annas claimed in the plaint; otherwise the appeal fails. The appellants will pay and receive costs in this Court, including fees on the higher scale, in proportion to failure and success. The cross-objections are dismissed with costs, including fees on the higher scale.
14. I agree in the order proposed, The case with regard to the execution of the deed by the two ladies is undoubtedly a difficult one. The evidence of Bashir Ullah is evidence upon which no Court ought to rely except as regards admissions and (statements made by him against himself. According to his own statement on oath repeated more than once, be made a perfectly shameless confession of having forged his mother's name. Not merely having forged his mother's name but having done so at the request of what he calls his elder brother, in fact his cousin, with the intention of defrauding the creditor. The lower Court has made no reference to his evidence in its judgment. If I had been trying the case I should, at its conclusion, have directed his prosecution for an offence under Section 463, and it seems to me a case which ought not to be left where it is. Offences of this kind shamelessly proclaimed in Courts of law eat at the foundation of commercial credit in any community, and I see no reason why, as long as Courts of justice pass them by in silence, they should not flourish and abound. The direct evidence with regard to the execution is no doubt exaggerated, conflicting and unsatisfactory but men have been sent to transportation on evidence not less contradictory, and it is evidence which, after all, points in the same direction, that is to say, there is no evidence worthy of the name to negative it. The position of the family, the nature of the transaction and the surounding circumstances make it prima facie not improbable that the ladies consented to and authorised this transaction. The Court below, however, has found otherwise. Although I am not sure whether, if trying the case, I should have come to the same conclusion, I find myself unable to say that the Court below was necessarily wrong. On the other points I agree with my brother.
15. By the Court.--The order of the Court is that this appeal should succeed to this extent only that the order for sale be not for the sale of an 8-anna share but for the sale of 3/5ths out of the share of 8 annas claimed in the plaint; otherwise the appeal fails. The appellants will pay and receive costs in this Court, including fees on the higher scale, in proportion to failure and success. The cross-objections are dismissed with costs, including in this Court fees on the higher scale.