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TMI Blog1927 (2) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... the moneys secured by their mortgage in priority to one Rani Barkatunnissa. 2. The learned Subordinate Judge decided that the mortgage was effective in so far as it concerned the share of the wife and of the two major sons, Defendants Nos. 1 and 2. He also held with regard to Rani Barkatunnissa that she stood on an equal footing as regards her advances with the plaintiffs. The plaintiffs appealed from this decision, and the ground they took is that as between Khurshed Ali Mian and Mt. Latifunnissa, his wife, Mt. Latifunnissa was the owner of the entire property, and as such was competent to mortgage it. They alleged the further ground that the sons and daughters were not competent to question the validity of an award and decree now about t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that as between Khurshed Ali Mian and Mt. Latifunnissa the latter was the owner of the entire property by virtue of the decree of the 18th of August 1896, collusive though it was, then the plaintiff is entitled to succeed as against the only two respondents who are appearing. They are respectively Mt. Hasina Begam and Mt. Farmudi Begam. The appellants assert that this statement is a correct representation of the law and further that the two appellant daughters cannot question the validity of the decree passed in favour of their mother against their father. We are of opinion that both these points are well-founded, and we have been guided to that decision by the principles laid down in the case of Chenvirappa v. Puttappa [1887] 11 Bom. 708. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have against the debtor. Section 140 of Act 9 of 1872 makes it perfectly clear that these rights accrue to a surety when the surety has done "all" that he was liable to do. Now in this case it is conceded that Rani Barkatunnissa did not pay the whole of the indebtedness that existed between the creditor and the principal debtor, but a part only, and, therefore, she was nothing more than a creditor having a claim upon the principal debtor. She acquired none of the fights of either Lalta Prasad or Darbari Lal under any of the documents in question. Therefore, the plaintiff's rights acquired by them under the mortgage of the 26th of January 1913, took, in our opinion, priority over the claims of Rani Barkatunnissa. In this res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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