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Musammat Kazmi Jan Vs. Pandit Shib Charan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All297; 29Ind.Cas.757
AppellantMusammat Kazmi Jan
RespondentPandit Shib Charan
Cases ReferredBhola Nath v. Maqbul
Excerpt:
mortgage, suit on - money-decree--purchase by prior mortgagee--subsequent mortgage by heir--suit for sale by subsequent mortgagee--suit for declaration that house was not saleable by prior mortgagee, maintainability of. - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - (1903) 184 (vide page 32 of the report). it is also laid down clearly in those passages of mr......their rights under the mortgage to the present plaintiff-appellant. imdad ali died and his widow, musammat iradatunnissa, in the year 1907, mortgaged the same house to the present defendant-respondent. the plaintiff brought a suit upon his mortgage impleading the present defendant as a subsequent mortgagee of the property in suit. for reasons which have not been made apparent, the court gave the plaintiff and simple money-decree enforceable against the assets of imdad ali in the hands of any of the defendants. in execution of this decree the plaintiff attached the house in question, brought it to sale, and purchased it himself obtain hip; possession on june the 23rd, 1913. in the meantime the defendant had brought a suit upon his mortage against musammat iradatunnissa, and on the 24th.....
Judgment:

Piggott, J.

1. It appears that one Imdad Ali mortgaged, in the year, 1897, a house to a person whose heirs subsequently transferred their rights under the mortgage to the present plaintiff-appellant. Imdad Ali died and his widow, Musammat Iradatunnissa, in the year 1907, mortgaged the same house to the present defendant-respondent. The plaintiff brought a suit upon his mortgage impleading the present defendant as a subsequent mortgagee of the property in suit. For reasons which have not been made apparent, the Court gave the plaintiff and simple money-decree enforceable against the assets of Imdad Ali in the hands of any of the defendants. In execution of this decree the plaintiff attached the house in question, brought it to sale, and purchased it himself obtain hip; possession on June the 23rd, 1913. In the meantime the defendant had brought a suit upon his mortage against Musammat Iradatunnissa, and on the 24th of September 1912 had obtained a decree for sale of a fractional share in the said house representing the share which came to Musammat Iradatunnissa by inheritance. The present suit was one for a declaration that the house in question is not liable to sale in execution of the defendant's decree. The suit was decreed by the Court of first instanae; but on appeal the learned District Judge came to the conclusion that the suit for a declaration WHS not maintainable and he dismissed it accordingly. Acting, however, on some admission made before him by the defendant he has given the plaintiff a simple money-decree for Rs. 50, which appears to be the anlount of his decree without interest. The plaintiff appeals to this Court contending, in the first place, that the suit for a declaration should have been decreed and secondly, that if any money-decree was passed it should have included interest up to date. In so far as any argument has been addressed to mo in support of the appeal based upon the fact that the defendant was a party to the plaintiff's suit upon his mortgage, I find no force in the contention. The suit as brought upon the mortgage of 1897 was dismissed. Whatever defence was set up in that case by the defendant Shib Charan it must have completely succeeded, for he was in no way affected by the decree actually passed. Even if by some oversight the simple money-decree was left to stand as a joint decree against all the defendants, the fact that it ih recoverable only out of the assetso Imdad Ali in the hands of such defendants would in itself free Shib Charan from all liability thereunder. The real contention pressed on behalf of the appellant is that tlie debt due to the plaintiff as a creditor of Imdad Ali must have priority over the debt due to the defendant Shib Charan as a creditor of one of Imdad Ali's heirs. In support of this contention J have been referred to certain general principles laid down in Wilson's Digest of Muhammadan Law and also to the case of Bhola Nath v. Maqbul-un-nissa 26 A. 28 : A.W.N. (1903) 184. The whole trend of the argument for the appellant overlooks the fact that Shib Charan's position is not merely that of a creditor of Musammat Iradatunnissa, but of a transferee of a portion of Imdad Ali's estate from one of his heirs. The general principle that a creditor of a deceased Muhammadan cannot follow his estate into the hands of a bona fide purchaser for value to whom it has been alienated by an heir-at-law, whether the alienation had been by an absolute sale or by a mortgage, was re-affirmed by the learned Judges of this Court who decided the case of Bhola Nath v. Maqbul-un-nissa 26 A. 28 : A.W.N. (1903) 184 (Vide page 32 of the report). It is also laid down clearly in those passages of Mr. Saiyed Ameer Ali's book on Muhammadan Law which are referred to in the judgment of the lower Appellate Court. In my opinion the plaintiff by his auction-purchase acquired no title to the house in question which could override the rights of the defendant Shib Charan under his mortgage of 1907 or under his decree of 1912, The house in question or rather Musammat Iradatunnissa's share in the same is liable to sale under the defendant's decree and no declaration to the contrary can, be made. The plaintiff has obtained a money-decree in his favour which could not, in my opinion, have been passed except on the admission of the defendant. I presume it to have been validly passed, as it is not challenged by way of appeal or cross-objections on the part of the defendant but I certainly cannot add to it by allowing interest as contended for in the last plea in this memorandum of appeal. The result is that I dismiss this appeal with costs, including fees on the higher scale.


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