NAJM-UN-NISSA BIBI Vs. AMINA BIBI

JUDGEMENT

(1.) This and the connected appeal, No. 436 of 1912, arise out of one suit, being cross-appeals from the same decree. The main facts are not in dispute and are as follows: Sheikh Minnatullah died, leaving as his heirs, his widow, the present plaintiff, and his father, Khadim Husain. Under Muhammadan Law, the widow inherited a one-fourth share in his estate and the other three fourths went to the father. The latter died subsequently, leaving the present six defendants as his heirs.

(2.) Under a mortgage-deed, dated the 14th of February, 1891, Nasratullah and Musammat Karamat Bibi borrowed Rs. 7,296 from Minnatullah. After the death of Khadim Husain, the first defendant, Musammat Amina Bibi, his widow, obtained a succession certificate in regard to this debt due from the mortgagor. Then she and the remaining defendants jointly sued to recover the mortgage-debt, impleading the present plaintiff as a pro forma defendant admitting that she was entitled to a one-fourth share but alleging that she refused to join as plaintiff. On the 14th of May, 1903, they obtained a decree for the recovery of Rs. 17,168-8-0 plus future interest at 9 per cent, per annum from the date of suit up to the date of payment. In addition to this they were awarded their costs. They put the decree into execution. Thereupon the present plaintiff applied to the court to be added to the proceeding as a decree-holder. To this the decree-holders naturally objected, as she was not a decree-holder, and stated that they would pay her one-fourth of the amount recovered after deducting the costs of the suit and execution proceedings. Her application was disallowed on the 19th of February, 1904 The mortgaged property was put to sale and sold for Rs. 23,590. The decree-holders obtained sanction to bid at the auction.

(3.) According to the statements in the plaint and the written statement in this suit, the property was purchased by the defendants Nos. 1 to 3, but it is stated before us that the property was knocked down to all the defendants, and that then the other defendants withdrew, saying that the defendants Nos. 1 to 3 were the purchasers. This is of little consequence.