1. This appeal arises out of a suit brought by the plaintiff Wali-ullah for sale upon a mortgage after redemption of a prior mortgage. It appears that in 1891 the predecessor in title of one Musammat Sadiq-un-nissa made a mortgage in favour of Hakim Waris Ali of the property in suit. On the 18th of January 1897 Sadiq-un-nissa and her husband made a mortgage of the same property in favour of one Ali Jan. In 1900 Hakim Waris Ali brought a suit upon his mortgage, making Ali Jan, the puisne mortgagee, a party to the suit. In that suit Hakim Waris Ali got a decree for sale an opportunity being given both to the mortgagor and to Ali Jan to redeem Waris Ali's mortgage. The mortgage was not redeemed, and an order absolute was passed under Section 89 of the Transfer of Property Act. The respondent, Wali-ullah, now comes into Court alleging that he was the real mortgagee of the mortgage of 1897, and that Ali Jan was his benamidar, and he sues on the strength of his secret title to bring the property to sale after redeeming Waris Ali's mortgage. There is no suggestion that the prior mortgagee knew that Ali Jan was merely a benamidar. The Courts below have given the plaintiff a decree. Kaniz Fatima, who purchased the property from Musammat Sadiq-un-nissa in 1893, comes here in second appeal.
2. In my opinion the first plea in the memorandum of appeal must be sustained. The plaintiff's benamidar was given an opportunity to redeem and failed to avail himself of it. In my opinion it is now too late for the plaintiff to come in and treat the order absolute passed against his benamidar as a nullity, It has been held in many cases that a decision passed in a suit brought by a benamidar binds the beneficial owner. I see no reason why a similar rule should not be applied to the case of a suit brought against the benamidar. In my opinion the plaintiff is bound by the decree in Waris Ali's suit and he has lost his right of redemption. It may be that, as representing Ali Jan, he may pay the money due to the prior mortgagee if an application is made for the sale of the property, but in my opinion his suit, as brought, ought to have been dismissed.
3. For the above reasons I allow the appeal and set aside the decrees of the Courts below. The appellant will have her costs in all Courts.