1. This was a suit on a bond for Rs. 1,800, executed by Fahtemul Zohra, widow of Sheikh Eftakharuddin, hypothecating, amongst other properties, one anna fifteen gandas of Jhurja, of which the respondent is in possession under an auction-purchase of the rights of the aforesaid widow made on the 15th August 1877. The mortgage-bond is dated the 28th March 1874.
2. It appears that Sheikh Eftakharuddin died between 1868 and 1872, leaving him surviving the aforesaid widow and two sons as his heirs. In the year 1866 he borrowed Rs. 546 by a bond, dated the 18th of October, from a person named Lalla Jha, who obtained a decree for the loan against the aforesaid heirs on the 20th November 1872.
3. This decree was reversed by the Judge on the 8th April 1873, but was restored by this Court in Special Appeal on the 20th April 1874.
4. It appears that Sheikh Eftakharuddin was possessed of four annas of this mouza, viz., Jhurja. After his death, by a Tukseemnamah, dated the 20th January 1871, executed between his heirs, one anna fifteen gandas was allotted to the widow, fifteen gandas in lieu of her dower, and the residue as her share by right of inheritance. Lalla Jha sold the decree obtained by him to the respondent, who, in execution of it, first of all attached the whole four annas; but by a petition subsequently made, proceeded only against one anna fifteen gandas, the share hypothecated in the plaintiff's bond. The plaintiff thereupon put in an application in the execution Court, notifying his mortgage, and the property was sold with the notice of his mortgage, and purchased by the respondent himself on the 15th August 1877.
5. The defence of the respondent is substantially based upon two grounds, namely,--1st, that he having purchased the property in execution of a decree passed for the debts due from the ancestor, must be deemed to have acquired it under the Mahomedan law free from the incumbrance created by one of the heirs; and 2nd, that the bond was a collusive instrument brought about to defeat the claim of his vendor. The Subordinate Judge overruled both these pleas and awarded a decree, directing, that that part of the mortgaged premises which is still in possession of the original mortgagor, should be sold first, and that if, after such sale, the decree be not satisfied, one anna fifteen gandas of Mouza Jhurja in the possession of the respondent should then be sold. On appeal the District Judge has reversed this decree so far as the respondent is concerned. He finds (i) that the plaintiff had notice of the debt of Lalla Jha, still remaining unpaid when the bond was executed in his favour; and (ii), that the 'plaintiff has failed to prove that consideration really passed under the mortgage-bond on which he sues.'
6. If this last finding is correct, we cannot interfere. But it seems to us that the bond upon which the suit is brought has been proved by the lower Court to have been executed by Fahtemul Zohra. The respondent acquired her rights in one anna fifteen gandas of this property in the year 1877, the bond having been executed in the year 1874. The recital in the bond that the consideration was received by the executant, is evidence quantum valeat against the respondent. Therefore, until the latter can show that this recital is not true, it must be held that the consideration was paid. This has not been shown; therefore, the finding of the lower Appellate Court upon this point cannot stand. Consequently, the position of the plaintiff is this: He took a mortgage from one of the heirs of a deceased Mahomedan having notice of an outstanding debt due from her ancestor. t Is the mortgage under the Mahomedan law absolutely void? I do not think that there is any authority for holding the affirmative. In Syud Bazayet Hossein v. Dooli Chund L.E. 51. A. 222 the Judicial Committee of the Privy Council, after reviewing many decided cases on the point, laid down the law thus: 'A creditor of a deceased Mahomedan cannot follow his estate into the hands of a bon fide purchaser for value to whom it has been alienated by his heir-at-law.' But it does not follow from this that such a creditor, under all circumstances, can follow the estate in the hands of a purchaser who had notice of his claim. The purchase with notice is not absolutely void, but the purchaser takes the property subject to the rights of the creditor whatever they are. The Mahomedan law on this subject is, that, out of the assets of a deceased person, funeral expenses should be defrayed first, then the debts, and then the legacies. The residue is to be distributed amongst the heirs. Therefore, if the assets in the hands of an executor or the heirs-at-law are not sufficient to discharge a particular debt, the creditor may follow any property in the hands of a purchaser from the executor or heirs-at-law with notice of his claim. In this case it is not shown that the assets in the hands of the heirs-at-law were not sufficient to satisfy the debt due to the respondent's vendor. On the other hand the fact is, that the debt was satisfied by the sale of a portion of the assets in the hands of one of the heirs, viz., the equity of redemption of Musst. Fahtemul Zohra in one anna fifteen gandas of Mouza Jhurja.
7. The decree of the lower Appellate Court is therefore erroneous, and we accordingly set it aside and restore that of the first Court with costs.