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Abdul Malik Vs. QamaruddIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty; Civil
CourtAllahabad
Decided On
Reported inAIR1948All349
AppellantAbdul Malik
RespondentQamaruddIn and ors.
Excerpt:
- .....parties and hearing arguments, held that the appellant alone was liable to contribute under the joint mortgage decree and that mt. najmunnissa was not liable to any contribution under that decree. from this order of the learned special judge, abdul malik has preferred this appeal.2. it would appear that on a previous occasion abdul malik had also made an application in the execution court for stay of the execution proceedings on the ground that as he was a joint debtor along with mt. najmunnissa it was necessary that the special judge should determine his separate liability under the joint decree under sub-section (5) of section 9 in the encumbered estates act case before the decree could be executed against him. this application was allowed by the court executing the decree and the.....
Judgment:

Harish Chandra, J.

1. The appellant Abdul Malik is the son of Mt. Najmunnissa who is one of the respondents to the present appeal, the main respondents being Qamar Uddin and Nazir Uddin, creditors in the case arising out of an application made by Mt. Najmunnissa under Section 4, Encumbered Estates Act, 1934. Originally the application under Section 4, Encumbered Estates Act, was made both by Mt. Najmunnissa and her son, the present appellant. Later, the name of the appellant was deleted on an objection made by the creditors that he was not a landlord and thereafter Mt. Najmunniasa has been treated as the sole landlord in the case. Some house property stood in the name of the appellant. On 12th December 1922, he executed a tamliknama in favour of his mother with respect to that property conferring upon her the ownership of the house during her life time. On 20th November 1930, the mother executed a deed of relinquishment with respect to that property in favour of the appellant in order to enable him to borrow money which he needed. Accordingly on the same date a simple mortgage deed was executed by both the appellant and his mother in favour of respondents 1 and 2 for a sum of Rs. 1500. The document shows that Mt. Najmunnissa had joined in the transaction merely by way of precaution. Subsequently on 17th February 1931, another document was executed by the appellant and his mother mortgaging the same property to the same person for a sum of Rs. 600. A third document was executed in the same manner in favour of the same person on 26th September 1931 by the appellant and his mother for a sum of Rs. 1092. Respondent 1 and 2 in due course obtained a decree against the appellant and his mother in the civil Court and proceeded to execute it against them by getting the property sold. Respondents 1 and 2 had also taken objection in the Encumbered Estates Act case that Mt. Najmunnissa had no share in the mortgaged property from which the creditors were entitled to realise their mortgage decree. The learned Special Judge allowed the objection of the creditors in the Encumbered Estates Act case. Mt. Najmunnissa had also objected to the execution of the mortgage decree by the creditors in the execution Court on the ground that no decree could be executed against her property during the pendency of the Encumbered Estates Act case. Her objection was dismissed by the execution Court. There were two appeals in the High Court arising out of the orders passed in these two cases. The High Court held that the house belonged to the appellant alone. Accordingly the appeal of Mt. Najmunnissa arising out of the orders passed by the Special Judge under Section 11 in the Encumbered Estates Act case was dismissed. But the appeal of Mt. Najmunnissa arising out of the execution case was allowed and it was held that until the respective liabilities of the judgment-debtors, namely Mt. Najmunnissa who was an applicant in the Encumbered Estates Act case and her son, the present appellant, had been determined under Sub-section (5) of Section 9 in the Encumbered Estates Act case the decree obtained by respondents 1 and 2 could not be executed. The following is reproduced from the judgment passed by the High Court in the appeal:

We think, therefore, that the learned Special Judge was not right in rejecting the objection of Mt. Najmunnissa and he should have proceeded to apportion the liability between Najmunnissa and Abdul Malik. After he had BO apportioned the liability or after he had held that Najmunnissa, if that be the case of the parties, was not liable at all under the mortgage and the entire liability was that of Abdul Malik, the decree could be executed for such sum as would thus be found due against him. The execution appeal is, therefore, allowed to this extent.

The case accordingly went back to the learned Special Judge, who, after recording the evidence produced by the parties and hearing arguments, held that the appellant alone was liable to contribute under the joint mortgage decree and that Mt. Najmunnissa was not liable to any contribution under that decree. From this order of the learned Special Judge, Abdul Malik has preferred this appeal.

2. It would appear that on a previous occasion Abdul Malik had also made an application in the execution Court for stay of the execution proceedings on the ground that as he was a joint debtor along with Mt. Najmunnissa it was necessary that the Special Judge should determine his separate liability under the joint decree under Sub-section (5) of Section 9 in the Encumbered Estates Act case before the decree could be executed against him. This application was allowed by the Court executing the decree and the creditors came up in appeal to the High Court. The High Court dismissed the appeal and upheld the orders passed by the execution Court. Among other things it was contended before the High Court that Mt. Najmunnissa had been joined in the mortgages only as a surety and was, therefore, not personally liable for the payment of the debt in view of proviso (2) to Clause (d) of Section 9, Encumbered Estates Act. The High Court did not accept the contention that Mt. Najmunnissa was a surety and held that so far as the decree was concerned she must be deemed to be a joint debtor and that therefore the execution of the decree must be stayed until the special Judge had determined the liability of the judgment-debtors inter se under the decree.

3. It is contended on behalf of the appellant that the effect of the two orders of the High Court in the two appeals is that Mt. Najmunnissa must be treated as a joint debtor along with her son in the mortgage decree and that it is not therefore possible for the Special Judge to hold that she is not liable to contribute anything under that decree. We are not prepared to accept the interpretation which learned Counsel for the appellant wishes to put upon the two orders of the High Court referred to above. The possibility of Mt. Najmunnissa not being liable to make any contribution under the joint decree was, as a matter of fact, contemplated by order passed by the High Court in one of these appeals and the words which we have reproduced above from the judgment are not capable of any other interpretation.

4. It is next argued that the learned Special Judge was not right in going into the question as to who actually required the money. It is said that when the money was borrowed by two persons it is to be assumed that they are equally liable for the debt. This may be true in the case of an ordinary debt. But in the case of a mortgage debt the proportion in which the property is owned by the joint debtors is an important consideration. No doubt, Section 82, T.P. Act, 1882, does not strictly apply to the facts of the present case, for that section contemplates the case in which the property which is the subject-matter of a mortgage belonging to two or more persons having distinct or separate rights of ownership therein. In the case before us the property which is the subject-matter of the mortgage belongs exclusively to the appellant and whether Section 82, T.P. Act, applies or not it is obvious that his property alone is liable for the payment of the entire debt and until a personal decree is obtained by the mortgagees after the sale of the mortgaged property under Rule 6 of Section 84, Civil P.C. the question of Mt. Najmunnissa's liability for the payment of the debt will not arise. In Kesho Das v. Manzoor Hasan 0043/1943 : AIR1943All334 , a Bench of this Court has held that 'the individual liability of each mortgagor' in the case of such a joint decree 'comes to be the share in the mortgage debt which is proportionate to the existing value of that property which he has contributed as part of the mortgage security.' When it is found that one of the joint debtors has not contributed any property belonging to himself as part of the mortgage security it follows that his liability would be nil and that the mortgagor or mortgagors who are the owners of the property which has been secured under the mortgage will be liable for the payment of the entire debt. This, in our view, is the principle to be followed in determining the liability of joint debtors under Sub-section (5) of Section 9, Encumbered Estates Act, in all eases of mortgage debts. In the present case we also agree with the learned Special Judge that the evidence shows that the debt in the case of each mortgage was in fact borrowed by the appellant who needed it and that Mt. Najmunnissa had joined in the mortgages merely by way of precaution. We accordingly dismiss the appeal with costs.


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