MT RUKIAYIA BEGUM Vs. RADHA KISHAN

JUDGEMENT

(1.) This is a defendants appeal and arises out of a suit for a declaration that the property detailed at the foot of the plaint belongs to defendant 2, Mahmud Husain Khan, and is liable to attachment and sale in execution of decree No. 11/4 of 1934. This decree was passed on 8 June 1934 by the Sub-Divisional Officer of Bilari in the district of Moradabad. The property in1 dispute consisted of two items, one mentioned in list A and the other in list B. Both the items of property are mortgagee rights. The first in Khata Khewat No. 1, mauza Newar, mohal Surkh Patti Zangari. The second item consists of Khata Khewat No. 2, Patti Rang Surkh.

(2.) The facts which have led up to this suit which has given rise to the present second appeal, are these. On the night between 11 and 12 September 1925, Mahmud Husain Khan, defendant 2, was married to a lady Mt. Ruqiya Begam, who is defendant 1 in this action. Mahmud Husain on that date had no property of his own and the dower debt of the lady could not be secured. Mt. Ali Jaha Begam, the mother of Mahmud Husain, on 4 September 1925, executed a sale-deed for Rs. 15,000 in lieu of the dower debt of her daughter-in-law. On 13 September 1925 is alleged to have come into being a document which is the subject-matter of a great deal of controversy between the parties. It is suggested that Amjad Ali, the father of Ruqiya Begam, was not quite satisfied with the amount of dower fixed for his daughter and he, therefore, insisted upon his son-in-law raising the amount, more particularly as the amount of dower for his first wife was a lac and a quarter. Things went on smoothly till about the year 1932, when Mahmud Husain acquired certain mortgagee rights from his brother-in-law, Haji Nazir Ahmad. This is the property which is now the subject-matter of the dispute. On 4 July 1933 Mahmud Husain executed a sale deed in favour of his wife of the property in dispute in part payment of Rs. 30,000, the sum by which the dower was raised. It might be mentioned that while the deed of 13 September 1925 was an unregistered and unstamped paper, the later transaction was embodied in a registered document. On 8 June 1934 Radha Kishen and his brothers obtained a decree for the arrears of profits for Fasli 1340. This was for a sum of Rs. 87-1-0. Radha Kishen proceeded in execution and attached the property in dispute. Exception was taken by Ruqiya Begam that this property had passed to her under the sale deed dated 4 July 1933 and was not liable to attachment in execution of the decree passed against her husband. This objection was allowed on 4th February 1937. On 24 August 1937 Radha Kishen and his brothers brought the present suit--Suit No. 197 of 1937--in the Court of the Munsif of Chandausi, for a declaration that the sale in favour of Ruqiya was fraudulent and fictitious, had been brought about in order to defraud the creditors and passed no title, hit might incidentally be mentioned that on 11 August 1937 Radha Kishen had applied for execution afresh by attachment of a different portion of the property with which we are not concerned today.

(3.) It might also be mentioned that on 31 July 1937 Mt. Ruqiya brought a suit, Suit No. 23 of 1937, under Section 226, Agra Tenancy Act, in the Court of the Assistant Collector first class, for profits of her share against Radha Kishen. This suit was instituted before the Assistant Collector and, on an objection raised by Radha Kishen denying the title of Ruqiya to the property in question, an issue was remitted to the Court of the Munsif of Chandausi. This suit is the subject-matter of the connected second appeal and 1 would leave it at that at this stage.