NOORUDIN ESMAILJI KURWA Vs. MAHOMED UMAR SUBRATI

JUDGEMENT

(1.) THE plaintiff, who is the transferee of a deed of mortgage da,ted October 24, 1918, alleges that by reason of mutual mistake of the parties thereto the mortgaged premises are therein wrongly described as being Ward number 3912 (3) and Street number 99b, and that the parties meant and intended to comprise in the said mortgage the property bearing Ward number 3912 (2) and Street number 99a. THE plaintiff prays that the mortgage, and deeds of transfer dated November 12, 1920, and March 30, 1931, in which the mistake was repeated, may be rectified by substituting the correct Ward and Street numbers, and that if and so far as may be necessary a preliminary mortgage decree passed on April 3, 1935, in suit No.1742 of 1932 may be set aside as between the plaintiff in that suit and defendants Nos. 1 to 3 and defendant No.5 in that suit; the plaintiff further asks for the usual preliminary mortgage decree.

(2.) DEFENDANTS Nos. 1 to 3 are the heirs and legal representatives of Sardar Haji Badloo Subrati, the mortgagor; defendant No.4 and defendants Nos. 5 and 6 are alleged to be puisne mortgagees; defendant No.4a is the widow and executrix of the father of defendant No.4, who is alleged to have been a puisne mortgagee along with defendant No.4; defendants Nos. 7, 8 and 9 as the heirs of Hyderali Ismailji Kurwa, the mortgagee and transferor of the deed of transfer dated November 12, 1920, and one of the transferors of the deed of transfer dated March 30, 1931, and defendants Nos. 10, 11 and 12 as the remaining transferors of the latter deed, are joined as persons interested in the claim for rectification of the deeds of transfer.

(3.) EXHIBIT (J) is the lease of plot A with the plan annexed thereto. That plan was prepared by Mr. Bana. It shows the projection in the North-West corner abutting upon, the open space between plots A and B. It is unnecessary to refer to this lease. The only leases to which it is necessary for the purposes of this case to refer in any detail are the leases of plots B and C.