NASIRUL HAQ Vs. FYAZ-UL-RAHMAN

JUDGEMENT

(1.) The facts of this case are not in dispute. They are these: One Abdullah owned, among other properties, 10 biswas of the village of Nizamuddinpur and 17 1/2 biswas of Tayabpur. His wife, Musammat Mubarakunnisa, brought a suit against him for the recovery of her dower of Rs. 10,000 and this suit was compromised and the compromise embodied in a decree of the 29 th of August 1889. The material portions of the decree run as follows: "The defendant Abdullah gives the whole of the undermentioned properties to the plaintiffs in lieu of Rs. 10,000 dower claimed by her. Now the plaintiff is the owner of the said properties but the defendant will retain possession over 10 biswas of Nizamuddinpur for his life, the income of it will be appropriated by the defendant and in case of urgent necessity, he may hypothecate or sell his life-estate in 5 biswas out of the said 10 biswas.... On the death of the plaintiff those who may be the heirs of both the plaintiff and the defendant will be the owners of the properties." Mubarakunnisa died on the 25th of May 1894 and was survived by her husband Abdullah. He, on the 19th of April 1897, executed a usufructuary mortgage in favour of the defendant No. 1 of 4 biswas of Nizamuddinpur and 2 1/2 biswas of Tayabpur. On the 2nd of April 1899, he sold to the plaintiff 3 5/4 biswas out of the 5 biswas of Nizamuddinpur of which, according to his construction of the above-mentioned decree, he was the owner, and 1 1/4 biswas out of the other 5 biswas of the same village to which he claimed title by inheritance from his wife. Abdullah died in 1899, and on the 14th of June 1907, the plaintiff brought the suit out of which this appeal has arisen for the redemption of the property mortgaged by Abdullah under the mortgage of the 2nd of April 1889. He impleaded the mortgagee and the heirs of Mubarakunnisa and Abdullah, namely the defendants Nos. 2-13, who are their children and grand- children. These last mentioned defendants Nos. 2-13 disputed the right of the plaintiff to redeem the mortgage, contending that Abdullah had only a life-estate in 10 biswas of Nizamuddinpur and that the interest of the plaintiff in the 5 biswas, which was transferred to him, came to an end with the death of Abdullah. It was further contended that, according to the terms of the decree Abdullah, relinquished his chance to succeed as an heir to any part of the estate of Mubarakunnisa inasmuch as he agreed with her that only those who might be the heirs of both himself and her would be the owners of her property on her death.

(2.) The Court of first instance dismissed the suit holding that under the compromise incorporated in the decree Abdullah got only a life-estate in the 10 biswas, and that he relinquished his right of inheritance to his wife as to the properties comprised in the decree.

(3.) An appeal was preferred and before the lower Appellate Court it was admitted that Abdullah, had only a life-estate in a 10 biswas share of Nizamuddinpur, but it was contended that on the death of his wife he inherited 2 1/2 biswaas out of the remaining 10 biswas. The decree of the Court of first instance was upheld.