ZAHINUDDIN HUSAIN Vs. CHOKHEY LAL

JUDGEMENT

(1.) This is an appeal by a, judgment-debtor against the order passed by the Court below dismissing his objections with costs.

(2.) The facts necessary for appreciating the objections filed by the appellant are not in controversy and are briefly these.

(3.) One Alimuddin Husain owned 20 biswas of village Nagla Khyali. On 7-4-1916 he executed a deed of mortgage in favour of one Lala Talewar in respect of five biswas out of the 20 biswas owned by him in this village. Alimuddin Husain died in 1921 leaving his son named Aminuddin Husain and two daughters, named Amir Jan and Wazir Jan. In the result, therefore, the equity in the half of the five biswas mortgaged to Lala Talewar devolved upon the son Aminuddin Husain. On 2-1-1925 Aminuddin Husain made a wakf-alla-aulad of the entire 10 biswas share in village Nagla Khyali which he had inherited from his father Alimuddin Husain. He died in 1927 leaving two sons, viz. Hasinuddin and Zibinuddin, minors, and throe daughters, viz. Zahina Khatoon, Amina Khatoon and Hasina Ehatoon, and two widows, viz. Mahmud Eatima and Irshad Fatima. On 10-4-1933, Suit No. 10 of 1933 was instituted for sale on the basis of the mortgage of 1916 by Lala Talewar. It may be noted that the wakf was not impleaded as a party in the suit, nor were the two daughters of the mortgagor. Further half of the property mortgaged, i.e., two and a half biswas, was released from the encumbrance on the allegation that it had been redeem, ed by the two daughters of the mortgagor. This suit was decreed on 11-12-1935. The Court held that out of five biswas share mortgaged to the plaintiff, two and a half biswas had gone to the mortgagor's daughters and as the daughter's were not parties to the suit, no decree for sale of their property could be given to the plaintiff. Thus a decree for sale of only two and a half biswas share was passed against the heirs of Aminuddin Husain.