KIDWAI, J. - (1.) THE following pedigree will elucidate the facts of the case: KHAIRAT HUSAIN Tahir -un -nissa Tayyab -un -nissa Firasat Nifasat Mohd. Zair Husain Hussain Jawad Taeed Rashid Saeed Husain Husain Husain Husain
(2.) KHAIRAT Husain, a Shia Muslim, died leaving two daughters as his heirs. His immovable property consisted of 3 villages, Garhi Rakhmau, Murligang and Rasoolabad. After the death of Tayyab -un -nissa, her eldest son, Jawad Husain, laid claim to the whole property and got mutation effected in his favour alone. It is no longer in dispute that as a matter of fact Tahir -un -nissa, and after her, her sons, were entitled to and the latter got, an eight annas share and each of the four sons of Tayyab -un -nissa was entitled to and eventually got a two annas share. On 7 -12 -1883, Tahirunnissa executed a deed under which Jawad Husain was allowed possession of her eight annas share in the property and Jawad Husain undertook to pay her an allowance of Rs. 500/ - per annum. On 16 -2 -1886 Speed executed a deed agreeing to take Rs. 125/ - per annum in lieu of his share which would have been 2 annas. The other two brothers of Jawad executed no deed but he continued in possession of their shares also.
(3.) ON 21 -12 -1895, Jawad mortgaged the whole property to Raja Tasadduq Rasul Khan of Jahan girabad to secure a loan of Rs. 25,000/ - and agreed to pay interest at 7,1/2 per cent. Taeed Husain and Rashid Husain signed the deed as witnesses. The deed was without possession but there were certain stipulations which would enable the mortgagee to take possession and to enhance the rate of interest. The mortgagee never did in fact take possession.;