JUDGMENT

Malik, J. - This appeal has been connected in this Court with First Appeal No. 33 of 1940 Rafiqa Begam and Another Vs. Aisha Begam, AIR 1945 All 363 in which we have delivered judgment to-day. Suit No. 20 of 1937 out of which the pre-sent second appeal has arisen was filed on 24th July 1937 for cancellation of a mortgage, dated 1st September 1932 for Rs. 3000 executed by the plaintiff in favour of her mother. Plaintiff further claimed a declaration that she was the owner of the entire 18 sihams as the heir to her sister Halimatun Nissa who had died in the year 1928, on the ground that Noor Uddin Ahmad was an illegitimate son of Kundan Jan, defendant 1, and was not the son of Naqi Uddin Ahmad, the father of the plaintiff. It was further pleaded that as Mt. Kundan Jan had been re-converted and had become a Hindu she was also not entitled to inherit any share in the property left by her daughter Halimatun Nissa. The defendant's contention was that when Halimatun Nissa died the plaintiff, her sister, and Noor Uddin her brother, and Mt. Rafiqa Begum alias Kundan Jan her mother were her heirs, and the plaintiff's share was only five sihams but as the other two heirs had sold to her 11 sihams out of the 13 sihams, the plaintiff had become the owner of 16 sihams but the other two sihams still belonged to Noor Uddin Ahmad and Rafiqa Begum. The trial Court held that Noor Uddin Ahmad was illegitimate and therefore had no share in the property. As regards Rafiqa Begum the trial Court was not satisfied that she had been reconverted to Hinduism but held that even if she had been, by reason of the Caste Disabilities Removal Act of 1855 she would not lose her share in the inheritance to her daughter. The lower appellate Court, however, held that Noor Uddin Ahmad was the legitimate son of Naqi Uddin and therefore Noor Uddin Ahmad and Rafiqa Begum were still the owners of the two sihams and refused to give the plaintiff a declaration as regards these two sihams about which the dispute related. We have already held in the first appeal that Noor Uddin Ahmad was the legitimate son of Naqi Uddin. It is not necessary for us to reiterate the same reasons. We need only mention that we agree with the finding of the learned Additional District Judge of Moradabad that there was no definite evidence to prove that Noor Uddin Ahmad was illegitimate and by reason of the acknowledgment of the paternity made by Naqi Uddin and by reason of the admission made by the plaintiff herself, and the other relations there was good prima facie evidence that he was the legitimate son of Naqi Uddin. In view of that finding the plaintiff's claim for declaration as regards these two sihams must fail. As regards the 16 sihams there was no dispute and so the plaintiff had no cause of action to bring a suit for declaration. The other relief claimed by the plaintiff was the declaration that the mortgage-deed dated 1st September 1932 was null and void and ineffectual and that no charge had been created thereunder on the property included in the mortgage. As regards this mortgage the trial Court held as follows:

I can arrive at no conclusion but this that the deed of mortgage is wholly farzi and that no consideration passed under it, and that the plaintiff was entirely under the influence and control of her mother, defendant 1.

Later on the Court held that the deed was entirely without consideration by reason, however, of the fact that all the facts which entitled the plaintiff to have the mortgage-deed dated 1st September 1932, declared null and void were known to her, even when she executed the mortgage deed. The Court held that Article 91, Limitation Act, applied and the period within which the suit should have been filed was only three years. On that ground this part of the relief was also refused by the trial Court. As regards the facts the learned District Judge in his judgment has mentioned that the facts found by the trial Court that the mortgage was without conside