FATIMA BIBI Vs. AHAJEE MUHAMMAD USMAN SAHIB (DIED)

JUDGEMENT

(1.) The main question in this appeal is whether a suit filed by a decree-holder under the provisions of Order 21, Rule 63, Civil Procedure Code, to declare his right to attach certain property arrests the running of limitation in favour of a person in adverse possession of the property.

(2.) The parties are Mohammadans and are relations. The suit out of which this appeal arises was filed in the Court of the Subordinate Judge of Chingleput by A. Abdul Gaffoor, who died during its pendency. Thereupon his widow, Fatima Bibi, and his daughter, Bathla Bibi, continued the suit as his legal representatives. The first defendant is the brother of the deceased plaintiff and the second defendant is his sister. The second defendant is the widow of one Dastagiri Sahib, who died in the month of February, 1920. Dastagiri was also survived by a son Mohamed Ghouse, and a daughter, Mahaboobi. On the 27 November, 1933, A. Abdul Gafoor obtained a decree against the estate of Dastagiri for the payment of Rs. 8,215-10-8. In execution of that decree he attached the properties with which this suit is concerned. The attachment was objected to by the first defendant on the ground that the properties had been conveyed to him by the second defendant on behalf of herself and her children by two conveyances, one dated the 24 July, 1923 and the other dated the 24 June, 1924. The first defendant's objection to the attachment was upheld and as the result, this suit was filed on the 24 July, 1935. The plaintiffs averred that the conveyances to the first defendant were sham transactions and therefore of no legal effect. The Subordinate Judge held that they were supported by consideration and were entered into bona fide.

(3.) The consideration of the conveyance of the 24 July, 1923, was stated to be Rs. 10,000 of which Rs. 1,250 was paid to the widow in cash and the balance paid in discharge of debts due by Dastagiri's estate on a mortgage and a promissory note. The consideration for the conveyance of the 24 June, 1924, was Rs. 7,000, of which Rs. 1,000 was paid in cash to the widow and Rs. 6,000 in discharge of a mortgage debtowing by the estate. The Subordinate Judge was also of the opinion that the first defendant had obtained a title to the properties by adverse possession. Consequently he dismissed the suit.