SHEIKH MOIN UDDIN Vs. MAQBUL ALAM AND ORS

JUDGEMENT

(1.) This is a plaintiff s appeal arising out of a suit to recover a sum of Rs. 1,625 by sale of certain mortgaged property. The plaintiff also claimed a personal decree for recovery of the same amount against defendant 1, Mt. Fasihunnisa.

(2.) Mt. Fasihunnisa, defendant 1, is the daughter of Fatma Bibi. On 29th of October 1919, Mt. Fasihunnisa and some other persons mortgaged certain immovable property for a sum of Rs. 20,000 in favour of Madho Prasad and Manmohan Das. On 16th February 1920 Mt. Fasihunnisa sold a certain share of the mortgaged property to one Siddiq Ahmad. No portion of the sale consideration was left ; with the vendee for payment to the mortgagees. It was agreed that the vendor herself should pay Rs. 1,000 out of the sale consideration to the mortgagees in satisfaction of the mortgage debt so far as the property sold was concerned. On the same day Mt. Fatma Bibi executed security bond in favour of Siddiq Ahmad undertaking to indemnify him in case he lost any part of the property sold to him, or had to pay any part of the mortgage money due from Fasihunnisa. In these events the vendee was entitled to recover the sale price or the damages, from the property which Fatma Bibi mortgaged as security.

(3.) The plaintiff Sheikh Moin Uddin brought a suit for pre-emption against Siddiq Ahmad in respect of the property sold and obtained a decree for pre-emption on payment of Rs. 1,450. The plaintiff paid up this sum and obtained possession. Subsequently the mortgagees sued upon the mortgage bond of 19th October 1919, and obtained a decree for sale on the 1st December 1925. The property was sold and one Sheikh Hayat Ullah purchased the property at auction and obtained possession over it on 2nd December 1928. The plaintiff having been dispossessed on 2nd December 1928, by the auction-purchaser has brought this suit to recover the amount which he had to pay to obtain possession of the property under the preemption decree together with interest. Ho brings the suit not only against Mt. Fasihunnisa personally but against the property which was mortgaged by Mt. Fatma Bibi on the very same day as the execution of the sale-deed, namely, on 16th February 1920, as security in favour of the purchaser Siddiq Ahmad in case he should be deprived of possession of the property sold or should have to pay anything on account of the mortgage charge upon that property. Mt Fatma Bibi bad executed a Wakfnama, of the property which the had mortgaged to Siddiq Ahmad, in favour of Maqbul Alam and others who are defendants. Mt. Fatma Bibi no longer retained any interest in the property which has now passed to the donees under the Wakfnama.