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Aslah Khatun Vs. Baldeo Prasad and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All63; 70Ind.Cas.70
AppellantAslah Khatun
RespondentBaldeo Prasad and ors.
Excerpt:
hindu law - partition--death of party prior to completion--partition, validity of. - .....respondents to enforce a mortgage if the 16th of september 1907, given by there persons to lala kedar nath, a relation of the plaintiffs respondents. it appears that mohammad abdul aziz, mohammad abdul ghaffar and mohammad abdul sattar executed as deed of mortgage on the 16th of september 1907 in favour of lala kedar nath in lieu of rs. 2,200. subsequent to the mortgage, there was a partition in, the family of lala kedar nath under which the deed in suit fell to the share of the plaintiffs respondents. lala kedar nath died before the partition of the family property was completed and his widow. musammat gomti, was a party to the partition. one of the mortgagors, mohammad abdul sattar, died sometime after the mortgage of 1907. the suit, out of, which this appeal, has arisen, was.....
Judgment:

1. This appeal arise out of a suit brought by the plaintiffs respondents to enforce a mortgage if the 16th of September 1907, given by there persons to Lala Kedar Nath, a relation of the plaintiffs respondents. It appears that Mohammad Abdul Aziz, Mohammad Abdul Ghaffar and Mohammad Abdul Sattar executed as deed of mortgage on the 16th of September 1907 in favour of Lala Kedar Nath in lieu of Rs. 2,200. Subsequent to the mortgage, there was a partition in, the family of Lala Kedar Nath under which the deed in suit fell to the share of the plaintiffs respondents. Lala Kedar Nath died before the partition of the family property was completed and his widow. Musammat Gomti, was a party to the partition. One of the mortgagors, Mohammad Abdul Sattar, died sometime after the mortgage of 1907. The suit, out of, which this appeal, has arisen, was instituted on the 16th of August 1919, against the two surviving mortgagors, Mohammad Abdul Aziz and Mohammad Abdul Gaffar, and the legal representatives of Mohammad Abdul Sattar. The other members of the family of Kedar Nath were made pro forma defendants. Musammat Aslah Khatun, one of the daughters of Abdul Sattar, alone resisted the suit. She denied the validity and consideration of the deed of 16th September 1907 and said, further, that the claim, was not maintainable inasmuch as the plaintiffs had not obtained a Succession Certificate and the alleged partition, ,under which the deed in question was allotted to them, was not a valid partition. There were some other objections also on behalf of the defendant-appellant which we need not mention. The learned Subordinate Judge disallowed all the pleas in defence and decreed the claim. In appeal, it is contended, on behalf of Aslah Khatun, that the partition under which the deed; in question is said to have been allotted to the plaintiffs was invalid. The argument is based on the allegation that Lala Kedar Nath had died prior to the completion of the partition and, therefore, the deed in. suit could not validly be allotted to the plaintiffs. There is no force in the argument inasmuch as the death of Lala Kedar Nath took place during the pendency of the partition and his death could not affect the validity of the partition. His widow, Musammat Gomti, was made a party to the proceedings and all the members of the family took part in the division of the family property. We agree with the first Court that the partition under which the deed was allotted to the plaintiffs, cannot be questioned by Musammat Aslah Khatun. The result therefore, is that the appeal fails. It is, dismissed, with costs.


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