CHAND BIBI Vs. SANTOSHKUMAR PAL

JUDGEMENT

(1.) On 29 December 1920 a Bengali kabala or deed of sale to Akhilchandra Pal was executed by Chand Bibi, Alifjan Bibi, Sheikh Badruddin and Mahabunnessa Bibi, which stated inter alia as follows: That, in 1892, one Nawabjan executed a deed of wakf in respect of certain properties; that, on 1 May 1914, Alifjan Bibi as mutawalli mortgaged the properties, including the scheduled properties, to Haripada Ray and subsequently sold some of them to pay off part of the mortgage debt; that, in 1919, Badruddin, one of the heirs of Nawabjan, filed a suit for partition of the whole property left by Nawabjan including the wakf property, which suit was decreed on 11 June, that We have all agreed to repay the debt of the said Haripada Ray. We have also admitted that certain properties were sold for the repayment of the said debt.

(2.) That by the decree the executants obtained an 11 annas share, and one Izatunnessa Bibi a 5-annas share in certain property, including the property covered by the deed of sale; that about Rs. 4,000 was still due on the mortgage, of which Rs. 2,700 was the share payable by the executants, and Rs. 1,300 by Izatunnessa; that Haripada was not willing to take these amounts separately or to execute separate reconveyances; that we are conveying to you our undivided 11-annas share in the scheduled properties, subject to a payment of Rs. 2,700, for principal and interest on receipt of Rs. 1,300, and you shall have the said share released, and by releasing our other properties along with the same, return to us title deeds relating thereto. We admit receipt of the amount of consideration.... We have made over possession of our share sold to you. By being malik with right of sale or gift you shall go on enjoying the same. Any amount of interest payable from to-day shall be paid by you. If we are made liable for the said debt, then you remain bound to make good the loss sustained by us... Mortgage debt Rs. 2,700 and cash Rs. 1,300, total Rs. 4,000.... We jointly received Rs. 1,300.

(3.) On 19 January 1920, Nurul Huq, the husband of Chand Bibi, had purchased from Badruddin and Mohabunnessa Bibi their share in one of the properties other than those included in the schedule. On 29 June 1920 the purchaser's solicitor had written to the executants saying: The purchaser of your 11-annas share in 5-1B, Ismail Street, will get a reconveyance of the mortgage in favour of Haripada Ray by 5 October 1920. I will personally see that this is done within that time. You have paid Rs. 30 for out- of-pocket costs for the reconveyance. All the costs will be paid by the purchaser.