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Abdul Aziz Khan and ors. Vs. Muhammad HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All415
AppellantAbdul Aziz Khan and ors.
RespondentMuhammad HusaIn and ors.
Excerpt:
- .....to one musammat aziz-un-nissa who died in the year 1901, leaving as her heirs her two daughters ghafur-un-nissa and halim-un-nissa, and her brother murads' property was at that time subject to a mortgage in favour of one behari lal. murad made no claim for possession of the property and the whole property passed into the hands of the two daughters ghafur-un-nissa and halim-un-nisa, who obtained mutation on the 27th february 1902. subsequently the mortgagee sought to recover his money and the two daughters executed a usufructuary mortgage in his favour of the whole property in 1910. again on the 1st february 1911, these two ladies executed a further simple mortgage in satisfaction of the usufructuary mortgage and recovered possession. it was after this, namely, in 1913, that the heirs.....
Judgment:

1. The question for decision in this appeal is whether the whole property should be liable to pay the mortgage-debt, or only that portion of the property which belongs to the present appellants. The property belonged to one Musammat Aziz-un-Nissa who died in the year 1901, leaving as her heirs her two daughters Ghafur-un-Nissa and Halim-un-Nissa, and her brother Murads' property was at that time subject to a mortgage in favour of one Behari Lal. Murad made no claim for possession of the property and the whole property passed into the hands of the two daughters Ghafur-un-Nissa and Halim-un-Nisa, who obtained mutation on the 27th February 1902. Subsequently the mortgagee sought to recover his money and the two daughters executed a usufructuary mortgage in his favour of the whole property in 1910. Again on the 1st February 1911, these two ladies executed a further simple mortgage in satisfaction of the usufructuary mortgage and recovered possession. It was after this, namely, in 1913, that the heirs of Murad came forward for the first time and sued Ghafur-un-Nissa and Halim-un-Nissa for their one-third share in the property of the grandmother. In this suit they obtained a decree.

2. The present suit has been brought by the mortgagee on the basis of the mortgage of 1911, and he has implicated the present appellants who are donees from Ghafur-un-Nissa and Halim-un-Nissa and the heirs of Murad. The lower Court has given a decree exempting the share of the heirs of Murad. In appeal, reliance is placed upon a Full Bench ruling of the Allahabad High Court reported in Jafri Begum v. Amir Muhammad Khan [1885] 7 All. 822. In that case the heir of a Muhammadan who was out of possession brought a suit against a decree-holder for recovery of the share of the property which had been sold in execution of a decree, and the Full Bench held that he was not entitled to recover his share of the property without first paying his proportionate share of the ancestor's debt for which the decree was passed. The principle of this ruling would appear to apply to the case before us, but the respondents urge that the question should have been raised in 1913, when they brought their suit for recovery of their one-third share in the property from Ghafur-un-Nissa, and Halim-un-Nissa. It is argued that as that question was not raised then it cannot be raised now, and the possession of the respondents must be held to be free from any burden imposed by this mortgage which was executed by the two ladies in respect of the whole property before the respondents came forward to claim their share. We are unable to accede to this view.

3. In our opinion the one-third share which was recovered by the respondents in 1913, was bound by the debt which was incurred to pay off a debt due by the ancestor from whom both parties claimed possession. It was not necessary that the defendants in that suit should make any reference to the mortgage and the mortgagee was no party to the suit. In our opinion, the respondents obtained a one-third share in the property which was as much liable to pay the mortgage as the two-thirds share of the property which belonged to the two ladies and which has passed to the present appellants.

4. The plea of limitation referred to in the grounds of appeal has not been raised by the opposite party and we see no reason to discuss it here. We allow this appeal with costs including costs in this Court on the higher scale and order that the decree of the lower Court be modified as desired by the appellants.


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