ABDUL AHAD Vs. CHHABI RAM

JUDGEMENT

(1.) This is an appeal by one of the defendants, arising out of a suit for declaration that Abdul Wahid was the owner of the property in dispute, that the said property was liable to be sold in execution of decree No. 152 of 1922 obtained by the plaintiff against Abdul Wahid and that the decree in suit No. 326 of 1911 obtained by Abdul Ahad against his son Abdul Wahid was fictitious, collusive and not binding upon the son.

(2.) The relation of some of the parties will appear from the following genealogical table:

(3.) Munni Begam had a son Abdul Ahad and two daughters Tafwizannisa and Tahmidan Nisa. Abdul Ahad was married to Mt. Fatma Begam. Abdul Wahid is the son of Abdul Ahad by another wife. On 12 June 1890, an award was made on a reference to arbitration between Munni Begam and some of her relations. Under this award, a moiety of the property was given to Mt. Fatma Begam and Abdal Wahid jointly and the other half to Abdus Samad, who was another son of Munni Begam. On 30 May 1901, Abdul Wahid executed a simple mortgage of the property in suit to Chhabi Ram plaintiff-respondent. In 1905 Tafwizannissa and Tahmidunnissa the two daughters of Munni Begam instituted a suit for the avoidance of the award. The suit was decreed and their claim to a portion of the property was recognized by a decree dated 10 May 1905. On 14 July 1908, a second award was made between the members of the family under which one- sixth share of Tahmidunnissa in mauzas Rali Madhopur and Ismailpur was given to Abdul Wahid and others and the share of Tahmidannissa in mauza Gangapur was increased in exchange of the above aforesaid property. On 22 November, 1910, Tafwizunnissa sold her share in mauzas Rali Madhopur and Gangapur to Abdul Wahid and others. On 16 October 1911, Abdul Wahid executed another mortgage in favour of Chhabi Ram and the consideration for this mortgage was the earlier mortgage, dated 30 May 1901,.which has already been referred to. In 1911, a suit was launched by Abdul Ahad the father against Abdul Wahid for a declaration that the property mortgaged to Chhabi Ram was his property and did not belong to Abdul Wahid. This suit was numbered and registered as 326 of 1911. On 15 December 1911 Chhabi Ram sought to be impleaded as a defendant. This application was resisted by Abdul Ahad and was rejected by an order dated 16th December 1911. Chhabi Ram instituted a suit on foot of his mortgage dated 16th October 1911, against Abdul Ahad and Abdul Wahid the m mortgagor. The suit was decreed against Abdul Wahid but was dismissed against Abdul Ahad the father. This was on 6 December 1922. A final decree was obtained by Chhabi Ram which he sought to execute by sale of the mortgaged property. Abdul Ahad intervened. Curiously enough, the Court below did not try the question raised by Abdul Ahad's application in the course of the execution proceedings, it, however, ordered that the application of Abdul Ahad be treated as a suit. The present suit was instituted by Chhabi Ram on 13 October 1925, in which he sought the reliefs which we have already enumerated, upon the ground that Abdul Wahid was the owner of the property in controversy, that he was competent to mortgage the property to Chhabi Ram on 16 October 1911, that the decree dated 6th December 1922, was properly obtained against Abdul Wahid and was executable by sale of the mortgaged property, that Abdul Ahad had no interest in the property whatsoever, and that the plaintiff was not bound toy the decree obtained by Abdul Ahad, the father against his son Abdul Wahid which was a fraudulent and collusive decree.