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Saeed-ud-dIn Khan and ors. Vs. Hira Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All109; 24Ind.Cas.25
AppellantSaeed-ud-dIn Khan and ors.
RespondentHira Lal and ors.
Cases ReferredAlam Singh v. Gokal Singh
Excerpt:
mortgage - redemption suit--all mortgagees must be made parties--non--joinder, effect of--parties. - - as one of the persons who had an interest in the mortgaged property has been omitted from the suit, the plaintiff's claim must fail and on this ground must be dismissed......mortgage was made by one ghulam mustafa. he had a son ghulam nabi, who in the year 1872 brought a suit for redemption of the mortgage and obtained a decree against the original mortgagee or his heirs. one meghraj held a money-decree against ghulam nabi and in execution of that decree caused the mortgaged property to be sold by auction in 1875 and it was purchased by azim ullah, ghulam mohi-ud-din and muhammad hosain khan in 1876. these persons' paid off the mortgage and obtained possession. the representatives of these persons, save musammat khatun bibi, the widow of muhammad husain, are defendants to this suit. the plaintiff, hira lal, is a purchaser from one ratan lai, who again was a purchaser from two persons who are the sons of one umrao begam, alleged to have been one of the.....
Judgment:

P.C. Banerji, J.

1. This appeal aries out of a suit for redemption of a mortgage, dated the 5th of September 1850. The suit was instituted on the last day of the expiry of limitation, namely, on the 5th of September 1910. The mortgage was made by one Ghulam Mustafa. He had a son Ghulam Nabi, who in the year 1872 brought a suit for redemption of the mortgage and obtained a decree against the original mortgagee or his heirs. One Meghraj held a money-decree against Ghulam Nabi and in execution of that decree caused the mortgaged property to be sold by auction in 1875 and it was purchased by Azim Ullah, Ghulam Mohi-ud-din and Muhammad Hosain Khan in 1876. These persons' paid off the mortgage and obtained possession. The representatives of these persons, save Musammat Khatun Bibi, the widow of Muhammad Husain, are defendants to this suit. The plaintiff, Hira Lal, is a purchaser from one Ratan Lai, who again was a purchaser from two persons who are the sons of one Umrao Begam, alleged to have been one of the daughters of Ghulam Mustafa. The sale-deed in favour of Ratan Lal was executed on the 19th of August 1910, and on the 30th of that month he executed a sale-deed of the rights purchased by him in favour of the plaintiff. Before either of these sale-deeds had been registered this suit was instituted by the plaintiff on, as stated above, the last day of the expiry of limitation. The two sale-deeds were subsequently registered, and as a registered document operates from the date of its execution, the fact of the two sale-deeds not having been registered when the present suit was brought does not vitiate the suit.

2. In respect of this mortgage in suit there has been considerable litigation in past years. As has been already stated, Ghulam Nabi obtained a decree for redemption in 1872. Meghraj caused his rights to be sold by auction and having bought them himself in 1875 sold them to Azim-Ullah and Ors. The effect of this purchase by Azim-Ullah and Ors. was to break up the integrity of the mortgage, inasmuch as by their purchase they acquired the equity of redemption of Ghulam Nabi and the mortgagee rights in the shares of others which by virtue of the redemption Ghulam Nabi had acquired.

3. Before this transaction one Johri Mai had in 1873 caused a (?)th share of the property to be sold as the property of Musammat Shamsunnissa, widow of Ghulam Mustafa, and bought it himself : and half of this (i.e., 1/16th) he sold to Ratan Lai, the vendor of. the plaintiff. In 1873 Johri Mal took a mortgage of the remaining share from Shamsunnissa and Ghulam Nabi, and on the basis of that mortgage obtained a decree in 1885. In 1886 the property was sold by auction and Azim-ullah and Ors. purchased it. This purchase also broke up the integrity of the mortgage. In 1903 Ratan Lal purchased the share of Musammat Ashraf, a daughter of Ghulam Mustafa, and in the year 1905 he brought a suit for redemption of a 7/24ths share, on the allegation that that' was the extent of the share of Musammat Ashraf, and obtained a decree. In that suit his allegation was that Ghulam Mustafa had left one son, Ghulam Nabi, one daughter, Musammat Ashraf, and one widow Musammat Shamsunnissa. In 1907 Ratan Lal sued for redemption of the share of Shamsunnissa which he had purchased from Johri Mai. In that suit also ho asserted that Ghulam Mustafa had only one widow Musammat Shamsunnissa. In the present suit it is alleged that Ghulam Mustafa had another wife 'Musammat Sahibzadi, by whom he had a daughter Musammat Umrao. It is from the sons of Umrao that Ratan Lal purchased the share, which he subsequently sold to the plaintiff and which is sought to be redeemed. It is thus manifest that it was only in the year 1910, when the sale-deed in favour of Ratan Lal was executed by the two sons of Umrao and the sale-deed of Ratan Lal in favour of Hira Lal by the plaintiff, that it was for the first time alleged on behalf of Ratan Lal that Ghulam. Mustafa had another wife Sahibzadi and Anr. daughter Musammat Umrao. In the suit brought by Ratan Lai, to which I have referred above, it was, no doubt, asserted on behalf of the defendants that Ghulam Mustafa had another widow whose name was stated to be Masiti, but tin's was denied on behalf of Ratan Lai. In spite of these admissions of Ratan Lal the Courts below have in this case found that Ghulam Mustafa had a second wife and that Musammat Umrao was his daughter by this wife. I am bound to accept this finding which is a finding of fact, although it is contrary to the allegations made by Ratan Lal in the suit brought by him in 1905 and 1907. I also agree with the Courts below that the decision in those suits cannot operate as res judicata in the present suit, as Ratan Lal was not litigating those suits under the same title on the strength of which the plaintiff has brought this suit.

4. There is, however, one defect in the plaintiff's claim which, in my opinion, is fatal to the suit. It has been found by both the Courts below that Musammat Khatun Bibi, the widow of Muhammad Hosain, one of the purchasers of the mortgagee rights, has an interest in the mortgage. She has not been made a defendant to the suit, This, in my opinion, is a fatal defect. In every suit for redemption of a mortgage all the mortgagees or their representatives are necessary parties. Musammat Khatun has acquired a portion of the mortgaged property, and, therefore, the plaintiff cannot redeem the mortgage of 1850 without making Musammat Khatun Bibi a party to his suit. He cannot recover from the other mortgagees the share which he is entitled to obtain from Musammat Khatun Bibi. Being interested in the equity of redemption, he must redeem the mortgage in the hands of all the mortgagees. The Courts below were of opinion that the omission of Musammat Khatun Bibi would not prejudice her, but that is not the point. The fact of a decree being made against the appellants would seriously prejudice them, because the portion of the property which ought to have been recovered from Musammat Khatun Bibi would now, under the decree in the present suit, be recovered from the appellants. The learned Vakil for the respondents has relied upon the case of Alam Singh v. Gokal Singh 21 Ind. Cas. 271 : 35 A. 484 : 11 A.L.J. 749. That case is distinguishable from the present. That was a suit for sale by a mortgagee against the mort gagor. A subsequent mortgagee had, however, been omitted from the suit. It was hold that this omission was not fatal to the suit and the result of the omission would be that the portion of the property mortgaged to the subsequent mortgagee could not be hold liable for the plaintiff's claim. The case of a mortgagee suing to recover the amount of his mortgage is different from that of a mortgagor seeking to redeem. The former can enforce his mortgage against any part of the mortgaged property and relinquish any other part of the property. In the case of a mortgagor he must redeem the property in the hands of all the mortgagees or their representatives, and he cannot be allowed to claim his part of the property from some of the mortgagees only. The fact of the integrity of the mortgage having been broken up, does not affect this question. The effect of the breaking up of a mortgage is that each mortgagor may redeem his share of the mortgaged property and is not bound to pay up the whole of the mortgage money for the redemption of his share only. In the case of a suit for redemption the mortgagor cannot, as I have said above, claim that some of the mortgagees should out of their share of the mortgaged property give up what belongs to him. All the mortgagees must be made parties and the claim must be brought against all of them. As one of the persons who had an interest in the mortgaged property has been omitted from the suit, the plaintiff's claim must fail and on this ground must be dismissed. I accordingly allow the appeal, set aside the decrees of the Courts below and dismiss the suit with costs in all Courts, including in this Court fees on the higher scale.


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