BISHESHAR DAYAL Vs. MTJAFRI BEGAM

JUDGEMENT

(1.) This is a defendant's appeal in a suit in -which the plaintiff prayed for the following reliefs: (a) It may be declared that one biswa property in mauza Papgaon, patti Mehdi Ali Khan, out of 3 biswas 3 biswansis and a fraction more of share and a grove and house situate in mauza Papgaon, bounded as below, owned and possessed by the plaintiff are not fit to be sold by auction in execution of decree No. 131 of 1930. (b) That defendant 2 had no right to mortgage the property, entered in the name of the plaintiff, nor could he do so.

(2.) On 4 June 1918, one Mehdi Ali Khan, the husband of the plaintiff, Mt. Jafri Begam, executed a mortgage deed in favour of Mt. Fakhr-un-nissa. On 6 June 1921, Mt. Fakhr-un-nissa sold her mortgagee rights to the father of Bisheshar Dayal, defendant 1 in the present suit. Bisheshar Dayal brought a suit, No. 131 of 1930, upon the footing of the mortgage of 4 June 1918. In the suit he impleaded the mortgagor, Mt. Jafri Begam, wife of the mortgagor, and Mt. Fakhr-un-nissa, the original mortgagee. In para. 5 of the plaint Bisheshar Dayal averred: Defendant 3 is a subsequent vendee of a portion of the property mortgaged. Mehdi Ali Khan, the mortgagor got, after the execution of the mortgage deed sued on, the name of his wife, defendant 2, entered in the khewat as against a portion of the property mortgaged. In order to evade payment of the amount due to the plaintiff, if the plaintiff has dishonestly made a transfer of a portion of the property mortgaged in favour of his wife, defendant 2, the plaintiff is not bound by the same.

(3.) Mt. Jafri Begam, the plaintiff in the present suit, and defendant 2 in the suit on the basis of the mortgage of 4 June 1918, although impleaded as a defendants in that suit, did. not contest the mortgagee's claim. The plaintiff Bisheshar Dayal and defendant 3, a purchaser of a portion of the mortgaged property, entered into a compromise, and so far as they were concerned a decree was passed by the learned Munsif who entertained the suit, in terms of the compromise. So far as the other defendants are concerned the suit is disposed of by the judgment of the learned Munsif in the following terms: The plaintiff and the contesting defendant 8 have compromised against the other defendants; the claim is proved ex parte. The plaintiff is content with a decree against them also in terms of the compromise. It is therefore ordered that a decree be prepared against the defendants in terms of the compromise.