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Sheikh Raza HusaIn Vs. Musammat Hasan Jan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in29Ind.Cas.245
AppellantSheikh Raza Husain
RespondentMusammat Hasan Jan
Excerpt:
provincial small cause courts act (ix of 1887), schedule ii, article 42 - suit for compensation--jurisdiction. - .....muhammad razi, who held a general power-of-attorney from the plaintiff, joined with the defendant raza husain in borrowing rs. 300 from a man called lalta prasad. as security for payment of the money they purported to mortgage certain property belonging to the plaintiff. muhammad razi, without reference to the plaintiff took advantage of the power-of-attorney in his favour to mortgage his employer's property and he actually signed the deed on her behalf as her miikhtar. the plaintiff had no knowledge of the transaction until a suit was brought upon the mortgage. in that suit a decree for sale was obtained by lalta prasad and the plaintiff's property was proclaimed for sale. in order to save the property the plaintiff paid off the amount of the decree, and she then brought the present.....
Judgment:

Chamier, J.

1. I admitted this application for revision, because it appeared to me that the suit was by one of several joint mortgagors of immoveable property for contribution in respect of money paid by her for the redemption of the mortgaged property and was, therefore, excluded from the cognizance of a Court of Small Causes, being a suit of the kind described in Article 42 of Schedule II of the Provincial Small Cause Courts Act. On examination of the record which has now arrived, I find that the suit is not of the description which I had supposed. It appears that one Muhammad Razi, who held a general power-of-attorney from the plaintiff, joined with the defendant Raza Husain in borrowing Rs. 300 from a man called Lalta Prasad. As security for payment of the money they purported to mortgage certain property belonging to the plaintiff. Muhammad Razi, without reference to the plaintiff took advantage of the power-of-attorney in his favour to mortgage his employer's property and he actually signed the deed on her behalf as her miikhtar. The plaintiff had no knowledge of the transaction until a suit was brought upon the mortgage. In that suit a decree for sale was obtained by Lalta Prasad and the plaintiff's property was proclaimed for sale. In order to save the property the plaintiff paid off the amount of the decree, and she then brought the present suit against Raza Husain saying that she intended to bring another suit against the heirs of Muhammad Razi.

2. Raza Husain objected that the suit could not proceed in the absence of Muhammad Razi's heirs. This objection was rightly thrown out. Raza Husain and Muhammad Razi, according to the evidence, conspired together to mortgage for their own purposes property belonging to the plaintiff. It is quite clear that they became jointly and severally responsible to recompense the plaintiff. They could have been sued together or either of them could have been sued alone. The property belonged to the plaintiff alone, and therefore, it is doubtful whether within the meaning of Article 42 the executants of the bond could be described as joint mortgagors of the property. But assuming this much in favour of the defendant, I have no hesitation in holding that the suit is not one for contribution at all. The plaintiff does not admit that she is liable for any portion of the money. It is in reality a suit by her for compensation for an impudent wrong committed against her by the defendant and another person and was in my opinion cognizable by a Court of Small Causes. This application for revision by the defendant in this suit is dismissed with costs.


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