Judgement

Appeal from a decree of the High Court (April 20, 1909) affirming a decree of the Subordinate Judge of Mirzapur (April 16, 1907).

On June 2, 1893, Lakhpati Kunwar executed a mortgage to the appellant and his son charging her zamindari and also certain mortgagee rights which she held in certain other zamindaris with the payment of Rs.40,000. On November 24, 1896, she sold all her immovable property for Rs.44,000, including the equity to redeem the said mortgage, to the respondent, who retained Rs.40,000 of the price in order to redeem the mortgage if he thought fit.

The mortgagees, who were members of a joint Hindu family, separated, and the mortgage fell to the share of the appellant, who on August 16, 1905, obtained a decree absolute for the sale of the mortgaged property, the High Court recording in its judgment that if it; proved insufficient the appellant might apply for sale of the said mortgagee rights also.

The sale took place and its proceeds were insufficient. Accordingly the appellant on January 7, 1907, prayed for a decree under s. 90 of the Transfer of Property Act, 1882, against the person and property of the respondent; and that the said mortgagee rights mig