1. This is a suit on a mortgage of the 17th of September, 1900. The executants of this deed were six persons. Jamil-ullah and Jalil-ullah, the two sons, and Musammat Khatun Bibi, the surviving widow of one Khalil-ullah deceased were the first three. The other three executants, Zohra Bibi, Muhammad Shibli and Muhammad Makki, were members of the same family, connected more or less distantly according to a pedigree which is to be found at page 2 of the printed record. The only point I desire to make about these three executants at present is that the pedigree does not show that they could have inherited any property from the deceased Khalil-ullah so as to be liable for payment of any portion of that gentleman's debts. The suit as brought is against the executant Jamil-ullah in person and the heirs of the remaining five executants, all of whom are since deceased. The court below has found execution proved as against the four male executants and not proved as against the two ladies Khatun Bibi and Zohra Bibi. The mortgaged property specified in the deed in suit consists of shares in three villages and certain house property and a grove, but the present suit is for realization of the entire mortgage debt from an 8 anna share of the judgment-debtors in a single village, the name of which is variously written as Gowai or Gowaipur, and also from the dwelling-house and the grove. We have no information before us as to the respective shares of the various executants of the deed in the dwelling-house or in the grove; but as regards the principal item involved in the plaintiff's claim, namely the share in village Gowaipur, an extract from the register of proprietary rights is printed at page 60R; This shows that in the village in question the six executants of the deed owned in the year 1900 an entire mahal of 16 annas and that they owned the same in certain specified shares. For our purposes it is sufficient to note that the shares of the two ladies came to 2/5ths of the whole and the shares of the 4 male executants to 3/5ths of the whole. The deed in suit purports to mortgage an 8 anna share out of the whole 16 annas, the said mortgaged share being the property of all the executants, but without any further specification. Now the learned Subordinate Judge, while finding it not proved that the two ladies, Musammat Khatun Bibi and Zohra Bibi, had executed the deed in suit, has nevertheless given a decree for the sale of an 8 anna share, on the ground that the male executants of the deed in suit did own between them more than an 8 anna share out of the entire 16 annas, even after excluding the shares owned by the two ladies.
2. We have before us an appeal by those defendants against whom the suit was decreed, and a petition of cross-objections under Order XLI, Rule 22, of the Code of Civil Procedure has been filed by the plaintiffs. The appeal raises in the main three points.
3. Firstly.--It is contended that execution of the deed in suit is not proved as against any of the executants other than Jamil-ullah.
4. Secondly.--It is contended that, even if execution be proved against any or all of the other executants, there has been no valid registration of the document as against any of the executants other than Jamil-ullah.
5. Thirdly.--It is contended that, in any event, the decree should have been for the sale of 3/5ths of an 8 anna share and not an entire 8 anna share.
6. The remaining pleas in the memorandum of appeal are either summed up in the three contentions above stated or have not been seriously pressed.
7. In the memorandum of cross-objections the plaintiffs contend that execution was proved as against the two ladies, Khatun Bibi and Zohra Bibi, and that effect should be given to this contention, if allowed, in any decree which this Court may pass.
8. It will be convenient to state at once-that this petition of cross-objections was met at the outset by those defendants who represent the estate of Khatun Bibi and Zohra Bibi by a plea that the plaintiffs were not entitled to challenge the Order of the court below dismissing the suit as against the representatives of these ladies by way of a petition of cross-objections. The point is that the representatives of these ladies are arrayed along with the plaintiffs as respondents to this appeal. They were content to accept the decree of the court below as passed and have not themselves appealed against it In support of this contention reliance is placed upon a decision of this Court in Kallu v. Manni (1901) I. L. R. 23/All., 93, in which the principle contended for is laid down in broad terms. As a matter of fact the position has since been re-considered by this Court in Abdul Ghani v. Muhammad Fasih (1906) I. L. R., 28 All., 95. We have been referred also to decisions of other High Courts to be found in T. L. R., 26 Calc., 114; I. L. R., 30 Calc, 655; 16 Calcutta Weekly Notes, 612; I. L. R., 37 Bom., 511 ; I. L. R.. 38 Madras, 705. It may be noted at once that it was in any event open to the plaintiffs, as respondents to the appeal, to support the decree of the court below, in so far as that decree ordered the sale of a share of 8 annas, upon a ground which had been decided against them by the trial court, namely, upon the allegation that the document in suit had, contrary to the finding of the court below, been duly executed by Khatun Bibi and Zohra Bibi. It was impossible therefore to close the mouth of the learned advocate for the respondents or to refuse to reconsider this question of execution by the two ladies. As a matter of fact, under the peculiar circumstances of this ease, it seems clear that the plaintiffs could not be blamed for acquiescing in the decree of the trial court so long as that decree entitled them to bring to sale a full 8 annas share; but they had ground for re-asserting their original claim, as soon as an appeal was filed on the plea that in any event only 3/5ths out of an 8 annas share should be ordered to be sold. Udder the circumstances, we think it was within the competence and discretion of this Court to permit the petition of cross-objections to be heard, even as against those original defendants to the suit who were arrayed as respondents to this appeal. If we had found the contentions urged in the petition of cross-objections to be well founded in fact, we should have been prepared to give effect to them in our decision.
9. It is as well to take up at once this question of the execution of the deed in suit by Khatun Bibi and Zohra Bibi.
10. [His Lordship then discussed the evidence in the case.]
11. I certainly do not feel prepared to reverse the finding at which the trial court has arrived on this point. I think therefore that this finding must stand and that the execution of this deed by Khatun Bibi and Zohra Bibi is not satisfactorily proved. It is not necessary, therefore, so far as these ladies are concerned, to go into the question whether there was a valid registration on their behalf,
12. There has therefore been sufficient proof of execution and of valid registration as against all the male executants. The only point on which the appeal must succeed is the third point. The reasons given by the learned Subordinate Judge for ordering the sale of an entire 8 annas share, after his finding against the validity of the execution of the mortgage deed by Khatun Bibi and Zohra Bibi, will not bear examination.
13. The result is that this appeal should succeed to this extend only, that the Order for sale be not for the sale of an 8 annas share but for the sale of 3/5ths out of the share of 8 annas claimed in the plaint; otherwise the appeal fails. The appellants will pay and receive costs in this Court, in proportion to failure and success. The cross-objections are dismissed, with costs.
14. I agree in the Order proposed.