MOHAMMAD ALI MOHAMMAD KHAN Vs. MT BISMILLAH BEGAM

JUDGEMENT

(1.) This is an appeal from a decree of the Chief Court of Oudh, dated 11 February 1927, which varied a decree of the Subordinate Judge of Mohanlal Ganj, Lucknow, dated 31 May 1926, and decreed in part the plaintiff's suit with costs.

(2.) The appellant, on 4 November 1921, instituted a suit against Haji Siddique Hasan (hereinafter referred to as defendant 2) to which suit plaintiff-respondent 1 (who is the wife of defendant 2) was not a party, for the recovery of money partly as damages for breach of contract and partly by way of recovery of advances made to defendant 2 for the purchase of goods as commission agent. This suit was decreed for a sum a little over Rs. 24,000 on 25 February 1924, but on appeal was reduced by about Rs. 4,000.

(3.) After the appellant had obtained his decree in the first Court and whilst an appeal was pending, the appellant, as decree-holder, attached plots 44, 44a, 45 and 46 situated on the New Sanitary Road, Lucknow, with buildings thereon, in execution of his decree, alleging that the same belonged to defendant 2. The present plaintiff (his wife) claimed under O. 21, R. 58, Civil PC, that these plots were not liable to attachment as a portion of plot 45 and the whole plot 46 was wakf property, and the remaining portion, i. e., a portion of plots 45 and 44, had been transferred to her in lieu of her claim for dower. Her claim was dismissed under the provisions of O. 21, R. 61, Civil PC, on 26 January 1925, on the ground that the wakf deed and the deed of gift were merely fictitious documents created with a fraudulent intention and that defendant 2 and not the plaintiff was in possession of the said plots with the buildings thereon.