MT KHODAIJATUL KUBRA Vs. DAMODAR PRASAD

JUDGEMENT

(1.) This appeal arises out of an order made by the learned District Judge on 25th February 1932, in proceedings under Section 47, Civil P.C. The learned Judge decided the matter in favour of the decree-holder in the following circumstances: The decree-holder had obtained a money decree for the balance of moneys due under a mortgage and remaining after enforcing the mortgage against the available properties of the mortgagor. In execution of that decree the decree-holder sought to attach a decree which had been obtained in the name of Jowad Husain and his wife Mt. Bibi Khodaijatul Kubra. The question which came to be deter mined by the learned District Judge was whether this decree was the decree of the Musammat in her own right or whether as representative or heir of her husband who had died before the execution proceedings with which we are concerned.

(2.) The circumstances under which that decree had been obtained in the name of the husband and wife were these: In May 1898, one Nanhe Nawab had sold to the Musammat and her husband a 5 annas 4 pies interest in village Paharpur Bhikhampur. The sale deed disclosed an incumbrance on the property but as security against any other possible undisclosed incumbrances the same vendor whom I shall describe as N executed a mortgage mortgaging other properties mentioned in the schedule to the mortgage deed. In September 1902, Jowad Husain, the husband of the lady, sold 2 annas 8 pies interest in the property which he had obtained under the sale deed of 1898 to Raja Harihar Prasad Narayan Singh.

(3.) He disclosed in that deed the incumbrance which had been recited on 2nd October of the same year in the sale deed of 1898 but he in turn mortgaged as security for any possible incumbrances undisclosed the 5 annas odd interest in village Khempore Kandha. Without going into the other facts in detail, excepting those which I shall mention, the position was this: In fact, N, the vendor under the sale deed of 1898, had encumbered the property, the subject matter of the deed of 1898, in favour of one Mohammad Saddiq. In fact the entire 5 annas 4 pies interest in the property had been so encumbered. As a result of this Raja Harihar Prasad Narayan Singh had been forced to pay up that mortgage and in order to recoup himself he brought an action and enforced the mortgage of 2nd October 1902 against Jowad Hussain.