MUHAMMAD YAKUB Vs. ABDUL MANAN

JUDGEMENT

(1.) The suit out of which this second appeal arises had its origin in a dispute concerning certain property in the town of Dumraon. The property in question consists of a row of shops at one end of which there is a number of rooms which at one time were occupied by the owner of the property or his agent. The property belonged, originally, to one Hakim Zahir who died in 1893. On his death, a dispute arose between his widow, Bibi Hasina, and his two daughters, Umat Fatma and Karamat, who were Bibi Hasina's step-daughters. Eventually, a compromise was entered into under which Bibi Hasina and her two stepdaughters each took an eight annas interest in the property. Umat Fatma and Karamat were also to make certain payments to Bibi Hasina and in order to find the money, they mortgaged their eight annas interest in the property to one Ahmad Ali. This mortgage was a mortgage with possession. At least from 1909, and probably from much earlier, the person in actual occupation of the property was one Jamal who was the husband of Umat Fatma.

(2.) Between 1909 and 1919 Jamal executed a number of rehan deeds, mortgaging, one after another, most of the shops. The mortgagee was, except in one case, one Shaikh Abdul Manan who was defendant 8 in the lower Court. Jamal died in 1925 and soon after, on 9 June 1926 Shaikh Abdul Manan took a conveyance of the property from his widow, Umat Fatma. The room or rooms which Jamal had occupied were, on his death, taken possession of by one Kamal who appears to have been a son of Jamal by a woman who was his concubine. On 27 July 1926 Shaik Abdul Manan instituted a suit for the ejectment of Kamal from the room or rooms which he was occupying. The litigation was protracted but, eventually, this suit was dismissed. During the pendency of the suit, on 4th October 1926 Sheikh Asgar Ali, defendant 2 in the lower Court, who was the son of Shaikh Ahmad Ali the mortgagee, took a conveyance of an eight annas interest in the property from the heirs of Bibi Hasina.

(3.) Nearly ten years later, on 10 May 1936 Shaikh Asgar Ali executed a sale deed conveying a four annas interest, out of the eight annas interest which he had purchased from the heirs of Bibi Hasina, to the appellant, Shaikh Muhammad Yakub. A month or so earlier on 13 April 1936 Shaikh Muhammad Yakub had taken in rehan a two annas interest from Samad, the husband of Bibi Karamat, who had died in or about 1896. Immediately after taking these conveyances, on 1 June 1936 Shaikh Muhammad Yakub instituted the present suit for the partition of the property. The suit was decreed by the trial Court; but on appeal, this decree was reversed by the learned District Judge of Shahabad.