MOHAMMAD ISMAIL Vs. HAKIM SYED HUSSAIN

JUDGEMENT

(1.) This is a plaintiff's appeal against the judgment and decree of the Subordinate Judge, Delhi, dismissing the plaintiff's claim for refund of money as against defendants Nos. 2 to 8 who are the legal representatives of Azizud Din,

(2.) The property in dispute belonged to one Ghaus Mohammad, who died on the 29th October 1939 leaving a step-brother Nowab Qasim as his heir under Muhammadan Law. Syed Hussain defendant No. 1 claimed this property as donee from Ghaus Mohammad. On the 11th May 1942, Syed Hussain mortgaged this property to Abdul Rahim by a registered mortgage deed which is Exhibit P. 7 at page 55 of the paper book, and on the 13th August 1942 the same Syed Hussain made a sale of the property to Azizud Din and it was provided in a separate agreement which appears not to have been registered that he would be entitled to exercise the right of repurchase within three years from the date of the sale.

(3.) On the 24th March 1943, Nowab Qasim who was the heir of the original owner sold the property to Mohammad Ahmad Allahwala who brought a suit for possession against Syed Hussain and Azizud Din and Nowab Qasim on the 27th May 1943. On the 27th September 1943 Syed Hussain and Azizud Din sold that very house to Mohammad Ismail Japanwala for Rs. 5,000/- by Exhibit P. 3 which is at page 73 of the paper book. Mohammad Ismail Japanwala, was a party to the suit for possession which was brought by Mohammad Ahmad Allahwala. On the 31st May 1944, the suit of Mohammad Ahmad Allahwala was decreed and it was held that Syed Hussain and Azizud Din and therefore Mohammad Ismail Japanwala had no title in the property. This was upheld by the High Court.