MUFTI MOHAMMAD HASNAIN Vs. RUSTAM ALI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of possession. It appears that Hatim Ali, a predecessor-in-title of the plaintiff, was the owner of the property and after his death all his heirs executed a simple mortgage deed in 1906 in favour of certain mortgagees, the period fixed for payment being ten years. Hatim Ali had left a son, a widow and two daughters. The son Kazim Husaintook possession of the entire property and then purported to transfer the whole of it on the 7 of November 1921 to Rustam Ali. The sale deed was for R?. 6,300 out of which Rs. 4,300 were left in the hands of the transferee for payment of the previous mortgage-debt. It is now found that as a matter of fact the vendee paid only Rs. 1,550-5 towards the previous mortgage debt and that he discharged the other debts with which we are not now concerned.

(2.) The limitation on the mortgage which was for ten years would not have expired till 1928. About a year before that date, namely, 1927, the present suit was instituted by an heir of one of the deceased sisters of Kazim Husain for recovery of his share. The claim was resisted on various grounds. The defendant wanted to claim the entire property by adverse possession, by estoppel as well as on other grounds. He also pleaded that he was entitled to be paid a proportionate amount out of the sum which he paid towards the discharge of the previous mortgage-debt.

(3.) The suit was decreed by both the courts below unconditionally. On appeal to this Court a learned Judge has upheld the decree for possession but has made it subject to the condition of the payment by the plaintiff of a proportionate amount out of Rs. 1,550-5 paid by Rustam Ali towards the mortgage of 1906. He has also directed the payment of interest on this amount at the rate mentioned in the mortgage-deed. - The point for consideration is whether Rustam Ali is entitled to resist the claim for possession and demand the payment of this amount.