JUDGMENT

1. This appeal has arisen out of a suit for sale on a mortgage.

2. The mortgage was executed on the 11th of January 1909 in favour of Sheikh Shahab-ud-din, the husband of the plaintiff, since deceased.

3. This mortgage was executed by one Muhammad Aizaz Ali Khan, the second defendant in the case. He purported to execute this deed as the general attorney of his wife Musammat Mahfuz-un-nissa who was imp leaded as the first defendant.

4. The sum borrowed under the mortgage was Rs. 3,000. There was a personal covenant to pay and a further covenant that, in the event of failure to pay the mortgaged property might be brought to sale. The property, it may be remarked, was the property of Musammat Mahfuz-un-nissa.

5. The two defendants Mahfuz-un-nissa and Muhammad Aizaz Ali Khan set up separate defences. The lady took the line of defence that she was no party to the mortgage-deed. She did not deny that her husband had executed the mortgage in question, although we find a statement to this effect in the judgment of the learned Subordinate Judge, a statement which, on our reading of the pleadings, appears to be erroneous.

6. The lady really sought to protect herself against the claim of the plaintiff by saying that her husband, defendant No. 2, had no authority to execute the mortgage-deed which was being sued upon. She stated that the power-of-attorney which was held by her husband had not been explained to her and was, therefore, not binding upon her.

7. The husband, defendant No. 2, did not deny the execution of the mortgage. He put forward a variety of pleas in order to show that the suit was not maintainable.

8. The learned Judge of the Court below dismissed the claim. He was of opinion, in the first place, that the plaintiff had failed to give due proof of the execution of the mortgage-deed in suit.

9. In the next place, he held that the plaintiff had failed to prove that the power-of-attorney, under colour of which the mortgage-deed had been executed, was a document binding on the lady. The Subordinate Judge states that there was no satisfactory proof for the purpose of showing that the document had been duly explained to the lady and that she was in a position to fully appreciate the legal consequences of her act when she executed the document.

10. The plaintiff in the Court below also claimed to be entitled to a personal decree on the strength of a certain acknowledgment contained in the letter which was written by the second defendant on the 6th of April 1914. The learned Subordinate Judge, however, was of opinion that this acknowledgment could not affect either of the defendants and, consequently, he refused to order any personal decree.

11. The plaintiff now comes up in appeal and a variety of grounds are put forward upon which the judgment of the Court below is challenged. Before we proceed to discuss the question which arises for determination here, it is important to notice that since the appeal has been filed the first defendant Mussammat Mahfuz-un-nissa has died, her heirs have now been made parties to the record and one of these heirs is her own husband, the second defendant, Muhammad Aizaz Ali Khan, who, under the Muhammadan Law, has become entitled as one of his wife's heirs to, a one-fourth share of the mortgaged property. That fact will have to be borne in mind later on when we come to announce our decision regarding the liability of Aizaz Ali Khan.

12. We begin with the finding of the Court" below that execution of the document was not duly proved. Here> we have to record our disagreement with the view taken by the learned Judge of the Court below. It was never contended that Musammat Mahfuz-un-nissa herself had executed this deed of mortgage. The case for the plaintiff was that the deed was executed by her husband who was her duly constituted attorney. The husband never denied the execution of the deed and, in the circumstances, it seems to us that execution was duly proved and the plaintiff discharged all the onus