JAINUL ABIDEEN MARAKAYAR Vs. HABIBULLA SAHIB

JUDGEMENT

(1.) This is an appeal against an order of remand passed under Order 41, Rule 23, Civil P.C., in A.S. 180 of 1926.

(2.) The defendants are the appellants and the plaintiff the respondent before us. The suit was brought by the plaintiff, mortgagee, to enforce a covenant of preemption in his favour in a mortgage-deed, dated 10 September 1923 (Ex. A), executed by defendant 1. Under that covenant, the mortgagor, defendant, agreed that in the event of his deciding to sell the mortgaged properties within the period fixed in the mortgage bond for the payment of the mortgage debt, he should offer them for sale at the then market price, in the first instance, to the plaintiff. The plaintiff's case is that in breach of the said covenant defendant 1 sold the mortgaged properties to his wife, defendant 2, for Rs. 700 by a registered sale-deed, Ex II, dated 5 November 1923. The plaintiff says that defendant took the sale-deed with notice of his right of pre-emption, and that he is therefore entitled to. enforce that right against her also. Plaintiff prays for the execution by the defendants of a sale-deed in his favour of the properties in respect of which he has a right of pre-emption under the mortgage-deed, Ex. A, subject to his paying such amount as may be ascertained by the Court to be payable by him as the market value of the property after giving credit for the mortgage money due to him from defendant 1.

(3.) The defendants contested the suit alleging that there was no agreement to sell the property to him, and even if there was, it was not enforceable, not being supported by consideration. They further pleaded that the conveyance by defendant 1, to his wife defendant 2, was not a sale as it was executed only in consideration of the mahar of Rs. 700 due to her and that the plaintiffs suit was also not maintainable as there was no tender of the price by him. Defendant 2 further pleaded that she is a bona fide purchaser of the property without knowledge of the agreement in plaintiff's favour.