MT BIBI KANIZ AYESHA Vs. MOJIBUL HASSAN KHAN

JUDGEMENT

(1.) This is a second appeal preferred by the defendants from concurrent decrees of the Courts below passed in favour of the plaintiff. The facts giving rise to the case can be shortly stated as follows: One Matwar Ali Khan mortgaged the property in question to one Rangu Lal. Subsequently the mortgagee transferred his interest in the mortgage to Mt. Fasihunnissa. In the year 1924 Mt. Fasihunnissa instituted Suit No. 89 of 1924 against the mortgagors and obtained an ex parte decree. This decree was put in execution in Execution Case No. 136 of 1928. During the pendency of the execution case some of the judgment-debtors filed Miscellaneous Case No. 21 of 1929 under Order 9, Rule 13, Civil P.C., to set aside the ex partevdeoree. During the pendency of this miscellaneous case Mt. Fasihunnissa died leaving her two daughters, Mt. Kaniz Aisha (defendant 1 in the present suit) and Umatul Fatma (defendant 2). Her husband Abdul Rahim (defendant 3) also survived her, and it was alleged that her father one Fazal Hassan Khan was also alive. All these four persons were substituted in place of Mt. Fasihunnissa deceased in Miscellaneous Case No. 21 of 1929, and later that miscellaneous case was dismissed. In the Execution Case No. 136 of 1938, which was proceeding, the property was eventually brought to sale and sold; but some of the judgment-debtors questioned the validity of the auction sale, and the two daughters, the husband and defendant 4, who was said to be the father of Mt. Fasihunnissa, were made parties to the proceedings The sale was ultimately set aside. The two daughters (defendants 1 and 2) then commenced fresh execution proceedings on their own behalf and again the property was put up to sale and purchased by them in full discharge of the mortgage decree, and on 5th September 1930, they obtained possession of the property so purchased.

(2.) Defendant 4, who is alleged to be the father of Fasihunnissa, claimed a 2/13ths share in the property, which would be a father's share and later assigned his share to the present plaintiff. An attempt was made by the present plaintiff to have the sale set aside under Order 21, Rule 90, Civil P.C., but that attempt failed. He then brought the present suit praying for a declaration that defendant 4 was the father of Mt. Fasihunnissa and that he had inherited 2/13ths share in the mortgage decree and that by virtue of the assignment the plaintiff was now entitled to the said 2/13ths share. He claimed recovery of possession of such share, and mesne profits. In the alternative, he prayed for a decree for 2/13ths share of the decretal money.

(3.) Defendant 4, who claims to be the father of Mt. Fashihunnissa, filed a written statement supporting the plaintiff. Defendants 1 and 2, however, who are minors and daughters of defendant 3, denied that defendant 4 was the father of Mt. Fasihunnissa and further they denied that even if the plaintiff had acquired the share of defendant 4, yet he was not entitled to possession of any share of the property purchased by defendants 1 and 2 in execution of the mortgage decree.