MT RASULAN BIBI Vs. NAND LAL

JUDGEMENT

(1.) This appeal must be allowed. The facts are briefly these: In execution of a simple money decree obtained by Saheb Din and others decree-holders, against two brothers, Hidayat and Yaqub, a certain property was attached. Thereupon a brother and two sisters and mother of the judgment-debtors preferred an objection in the execution department, claiming their shares on the ground that the property attached was originally the property of the ancestor, Zakir Ali, being the father of the judgment-debtors. It appears that the names of the brothers alone were recorded in the khewat. In that view the share of Yad Ali, namely one- third at any rate, should have been exempted from the sale. It, however, appears to be a fact that the objection failed in the execution department, and the brother, sisters and mother of the judgment-debtors brought the suit, out of which this appeal has arisen, to obtain a declaration that their shares in Zakir Ali's property was not liable to be sold in execution of the decree. After instituting the suit the plaintiffs took the precaution of making an application to the Court for issuing an injunction restraining the decree-holders from selling the property till the decision of the suit. That application was also disallowed. The property was sold and was purchased by one Nand Lal, who was, later on, added as a defendant to the suit.

(2.) The defence taken among others was that two of the plaintiffs were not daughters of Zakir Ali, and the suit was barred by limitation and also under Section 41, T.P. Act. The Court of first instance decreed the suit, but the lower appellate Court dismissed it on the sole ground that the suit was barred by Section 41, T.P. Act. On the question of fact the learned appellate Judge held that the two plaintiffs, Mt. Razia Bibi and Mt. Bannu Bibi, were Zakir Ali's daughters. A second appeal was filed before this Court, and a learned single Judge of this Court dismissed the appeal, holding that Section 41, T.P. Act, had been properly applied to the facts of the case. In the Letters Patent appeal it is contended that Section 41 should not have been applied and the suit should have been decreed. The sole point, therefore, that we have to decide in this suit is whether, in the circumstances of the case, Section 41, T.P. Act, was rightly applied or not.

(3.) We do not know the exact date of Zakir Ali's death, but it appears that he died about 15 years ago. It further appears that after the death of the father the two judgment-debtors, Hidayat and Yaqub, on two occasions transferred a portion of the property of Zakir Ali. Nand Lal entered the witness box and swore that all the enquiry that he made into the title of the judgment-debtors was an inspection of the khewat and the sale proclamation which advertised the fact that the property of the judgment-debtors was going to be sold. The question then is whether this inquiry on the part of the purchaser was enough, or whether he ought to have taken further precautions and made a better inquiry into the title of the judgment- debtors.