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Hakim Muhammad Hamid Ali Khan Vs. Muhammad Asghar Ali Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1915All22; 28Ind.Cas.825
AppellantHakim Muhammad Hamid Ali Khan
RespondentMuhammad Asghar Ali Khan and ors.
Cases ReferredKhan v. Sikandar
Excerpt:
mortgage - sale-deed of mortgagee rights--consideration, whether mortgagor can question the passing of--sale-deed, necessity not mentioned, in, effect of. - - besides it is difficult to see how the decree of durga prasad could be defeated by the assignment of the mortgagee rights of nazir ali to the plaintiff. the evidence of ram chander and sheo chand rai is both inconclusive and unreliable. we see no reason to discredit his evidence and find it proved that consideration passed on the sale of 1909. besides the failure of consideration on the sale in question would not defeat the claim of the plaintiff......the plaintiff-appellant claims to have purchased the mortgagee rights of nazir ali by a sale-deed dated january 24th, 1900. hakim vilayat ali khan and nazir ali are both dead. the claim was brought against eight persons, the first two of whom are legal representatives of hakim vilayat ali khan, the third is the purchaser under a private sale-deed of a portion of the mortgaged property, the fourth, fifth and sixth are auction-purchasers of another portion, and the last two are the legal representatives of nazir ali. one of the latter died during the pendency of the suit and his heirs wore brought en the record by an order dated february 25th, 1911, the first six defendants contested the suit on various grounds. they denied the genuineness of the mortgage of 1895 and the sale of.....
Judgment:

1. This appeal arises out of a suit brought by the plaintiff-appellant to enforce a mortgage said to have been given by Hakim Vilayat Ali Khan, a large landed proprietor of Aonla, to one Nazir Ali in 1895. The deed of mortgage purports to have been executed on August 80th, 1895, on behalf of Hakim Vilayat Ali Khan by Daud Ali under a special power-of-attorney. The plaintiff-appellant claims to have purchased the mortgagee rights of Nazir Ali by a sale-deed dated January 24th, 1900. Hakim Vilayat Ali Khan and Nazir Ali are both dead. The claim was brought against eight persons, the first two of whom are legal representatives of Hakim Vilayat Ali Khan, the third is the purchaser under a private sale-deed of a portion of the mortgaged property, the fourth, fifth and sixth are auction-purchasers of another portion, and the last two are the legal representatives of Nazir Ali. One of the latter died during the pendency of the suit and his heirs wore brought en the record by an order dated February 25th, 1911, The first six defendants contested the suit on various grounds. They denied the genuineness of the mortgage of 1895 and the sale of 1900 as also the special authority of Daud Ali. They further pleaded that the mortgage in suit was effected by Daud Ali in collusion with 'Nam' Ali for no consideration without the knowledge of Hakim Vilayat Ali Khan, and Hi at if it was executed by the latter, he executed it to defraud his creditor, Hai Durga Prasad, the ancestor of defendants Nos. 4 to 6. It was also alleged that no consideration passed on the mortgage in suit or on the sale-deed of January 24th, 1900. The learned Subordinate Judge of Bareilly in whose Court the suit was filed, while upholding the special authority of Daud Ali and the execution of the mortgage-deed of 1895 and the sale-deed of 1900, found that both were bogus and paper transactions.' He was of opinion that in the present case where the plaintiff was enforcing a mortgage against bona fide purchasers for value who denied its genuineness, it was for the plaintiff to prove in the first instant both the execution and the bona fide, character of the deed; that the recital in the deed of 1895 as to the passing of consideration was no evidence against the purchasers who were third parties; that the indebtedness of Hakim Vilayat Ali Khan, the absence of any mention of the necessity for which the loan in suit was taken, the want of proof of passing of consideration on the the deeds of 1895 and 1000 (the evidence on the point having been disbelieved), the doubtful means of Nazir Ali to advance a sum of Rs. 5,000 and the sale of the mortgagee rights to a close relative of the mortgagor these were the reasons which made the learned Subordinate Judge hold that the transactions of 1895 and 1900 were fictitious. He accordingly dismissed the claim. The plaintiff has preferred this appeal. He contends that he has proved the genuineness of the mortgage in suit as also of the sale of 1900. In fact as to the latter he maintains that the question of the passing of consideration does not arise in the present case as between himself and the contesting defendants. The question of the character of the transactions of 1895 and 1900 depends upon the credibility of the evidence. To take up the mortgage in suit first. It was executed, as has already been remarked, by Daud Ali on behalf of Hakim Vilayat Ali Khan under a special power-of-attorney. Daud Ali has been examined and he deposes to the execution of the mortgage and the receipt of Rs. 5,000. One Nazir Husain deposes to the same effect. He swears that Rs. 5,000 were paid in his presence as consideration for the mortgage. There is nothing in the evidence of Daud Ali or Nazir Hussain to make us discredit it. The defendants-respondents would, however, ask us to reject the evidence of Daud Ali and Nazir Hussain for the reasons given by the learned Subordinate Judge. It is said (1) that if Hakim Vilayat Ali Khan executed the mortgage in suit he executed it with the object of defrauding his principal creditor, Rai Durga Prasad, and that is borne out by the heavy indebtedness of the Hakim; and that as a matter of fact the Hakim 'never executed the mortgage. Daud Ali in collusion with Nazir Ali, a man of straw, fabricated the deed and practised a fraud on the Hakim. In support of the latter allegation the defendants-respondents examined three witnesses, namely, Sarup Narain, Ram bander and Sheo Chand. The last two state that they saw a notice in the possession of Daud Ali. from the Hakim calling upon the former to return the mortgage-deed of Nazir Ali. Ram Chander also says that he saw a draft of a plaint on behalf of the Hakim by which the cancellation of the mortgage-deed of Nazi Ali was sought. He admits that he saw the draft of the plaint in 1910 at the house of his master in the possession of one Wahid Ali Khan, a nephew of the Hakim, and the notice two years after in 1912. Daud Ali showed him the notice, because he, Daud Ali, wanted to sell himself and make money, as the production of the notice would have been a complete answer to the claim of the plaintiff. Ham Chancier is a servant of the defendants-respondents Nos. 4 to 6, the sons of Rai Darga Prasad, and his evidence is not disinterested. Besides his evidence, even if credible, is not conclusive. He does not say that the drafts of the notice he saw bore the signature of the Hakim. If Daud Ali is a person of such a character as Ram Chander makes him out to be it is quite conceivable that Daud Ali showed a forged notice purporting it to be, from his former master in order to make some money from the defendants-respondents Nos. 4 to 6. But it is scarcely credible that Daud Ali would venture to play such a trick after having given evidence on oath almost two months before in support of the genuineness of the deed of 1895. lie was examined as a witness for the, plaintiff on November 17th, 1911, and according to Ram Chander the draft of the notice was shown to him on January 4th, 1912. Wahid Ali Khan who is said to have shown the draft of the plaint has not been examined on behalf of the defence. The other witness, Sheo Chand, is a man of no status. He was at one time in the service of Durga Prasad and on his own admission he is a mere acquaintance of Daud Ali. He also says that Daud Ali showed him the notice and a letter from the Hakim with the object of getting him, the witness, to persuade the defendants-respondents to buy them. The witness was promised 10 per cent, on the decree presumably in favour of the defendants-respondents Nos. 4 to 6. The same remarks apply to the evidence of Sheo Chand as to that of Ram Chander. Sheo Chand deposes to a letter which he saw in possession of Daud Ali from the Hakim. The letter was to the effect that Daud Ali was to obtain a sale-deed of the mortgagee rights of Nazir Ali in favour of the plaintiff, because Durga Prasad had taken out execution of his decree. Now such letter, if genuine, would be inconsistent with the allegation of the fabrication of the mortgage in suit by Daud Ali. The witness does not say what date the letter bore or that it was signed by the Hakim. He says that he saw the letter three years ago, that is, some time in February 1909. It is not shown that any decree of Durga Prasad was in execution at that time. Besides it is difficult to see how the decree of Durga Prasad could be defeated by the assignment of the mortgagee rights of Nazir Ali to the plaintiff. The evidence of Ram Chander and Sheo Chand Rai is both inconclusive and unreliable. The evidence of Sarup Narain, Pleader, is much too vague to base on an inference that Daud Ali fabricated the deed of 1895. We, therefore, hold that the mortgage of 1895 was executed by Hakim Yilayat Ali Khan. The arguments advanced for the defence against its genuineness are also, in our opinion, of no force. The chief argument is the indebtedness of the Hakim at the time the mortgage was given. As there was no satisfactory evidence on the record about his financial condition, we remitted two issues to the lower Court for trial by which findings on the indebtedness of the Hakim and the value of Ins estate were called for.

2. The lower Court has now returned findings on the issues to the effect that the Hakim was indebted in 1895 to the extent of Rs. 89,000 including some doubtful debts, and that his estate at that time was worth Rs. 2,75,000. It has not been shown to us on behalf of the defence that the debts of the Hakim amounted to a larger sum than that found by the Court below. As to the valuation of his estate, even if the valuation arrived at by the lower Court be not accepted, that given by the defence would show that the Hakim was not in financial difficulties in 1893. According to the defence the value of the Hakim's estate in 1895 was Rs. 1,77,682. It cannot be said that a man who has an estate of that value and is indebted to the extent of about Rs. 90,000 only creates a mortgage for Rs. 5,000 in order to defeat his creditors. The absence of any mention of the necessity for which the loan was taken is no ground for holding that the transaction was fictitious. A man of the position of the Hakim would not proclaim his private affairs by mentioning the need in the bond for raising the loan. The allegation that Nazir Ali was a man of no means has not been made out by the defence'. It is true that four bonds have been produced on behalf of the defence which go to show that Nazir. Ali with some other persons from March 1895 to December 1895 borrowed small sums. This evidence, if notexplained would, no doubt, make it questionable whether Nazir Ali could advance such a large sum as Rs. 5,000 in 1895. But his brother, Ali Nabi, who has been examined in the case gives a satisfactory explanation of the said bonds. He says that his brother, who was Nazir in the Rampur State and through whom the salaries of the petty officials of the State used to be paid, used to stand surety for the said officials when they raised small loans. The creditors always asked him to stand surety as he could guarantee to them the re-payment of the loans by deducting from the salaries of the debtors the amount of the loans. The evidence of Daud Ali and Nazir Husain proves that consideration passed on the mortgage in suit and, as we have said before, we see no reason to reject their evidence. Besides the mortgage was put forward in 1908 in the life-time of the Hakim in execution of the decree against him by Durgi Prasad and it was not denied by the Hakim. We hold that the mortgage in suit was genuine and for consideration.

3. As to the sale-deed of 1900 its execution is not disputed. The objection is that no consideration passed on it. Mumtaz Hussain, a marginal witness to the sale-deed in question, has boon examined for the plaintiff and deposes to the passing of consideration. He has not been believed by the lower Court, because in its opinion the sale of 1900 was a part of the fraud that originated with Daud Ali in 1895. The lower Court considered the evidence of Mumtaz Hussain not on its own merits, but in the light of the circumstances which in its opinion showed the mortgage transaction of 1895 to be fraudulent. As it has been shown that the said circumstances do not exist and do not prove the transaction of 1895 to be fictitious, the objection to the evidence of Mumtaz Hussain disappears. We see no reason to discredit his evidence and find it proved that consideration passed on the sale of 1909. Besides the failure of consideration on the sale in question would not defeat the claim of the plaintiff. The question of consideration on the sale is one that concerns the vendor of the plaintiff and his representatives have not denied the receipt of consideration. The defendants-respondents cannot raise the question in the present case, vide Ahmad-ud-din Khan v. Sikandar begam 18 A. 256 : A.W.N. (1896) 52.

4. We, therefore, allow the appeal, reverse the decree of the lower Court and decree the claim of the plaintiff for the amount claimed up to the date of suit, with costs in both Courts including in this Court fees on the higher scale. In default the property will be sold. The usual decree under Order XXXIV, Rule 4, will be prepared. We allow six months from this date for the payment of the money. Interest at the contractual rate is allowed up to the date of payment. Considering the great delay in bringing the suit we allow no interest after the date fixed for payment.


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