BANARSI PRASAD Vs. BASTI BEGAM AND MUMTAZ AHMAD

JUDGEMENT

(1.) The question in this appeal was strenuously and ably argued by Mr. Dillon on behalf of the appellant, and is one of some nicety and difficulty. The plaintiff respondent, Lala Banarsi Prasad, instituted the suit out of which it has arisen to raise the amount due to him on foot of a mortgage of the 29 of October 1897 by sale of the mortgaged property. There was a prior document of the 23 of October 1897 purporting to be a mortgage of a portion of the property executed by the mortgagor Mumtaz Ahmad in favour of Husain Ali Khan, the husband of the defendant appellant Musammat Basti Begam. This mortgage is found to have been fictitious and without consideration, and to have been made by Mumtaz Ahmad solely for the purpose of defeating his creditors. But Husain Ali Khan transferred it to his wife Musammat Basti Begam on the 15 of August 1898 in satisfaction of portion of her dower debt, and it has been found on issues referred by this Court for determination to the lower appellate Court that this was a bond fide transaction and that Musammat Basti Begam obtained the transfer of the mortgage without any knowledge of its fraudulent character and was a transferee in good faith and for consideration. This is a finding of fact which we must accept in second appeal. Dower was due to her at the time, and it was in consideration of a portion of the dower so due that the transfer was made.

(2.) Both the Courts below held that as the mortgage in favour of Husain Ali Khan was bad in law his assignee could not derive any benefit from it. The learned District Judge in his judgment says: "We may take it that dower was actually due to Musammat Basti Begam and that she was a transferee in good faith, but still I do not think Musammat Basti Begam is entitled to any payment from the plaintiff. Section 53 of the Transfer of Property Act, on which apparently the appellant relies, is not, I think applicable. I take it that the last paragraph can only apply in cases where there is some property capable of being transferred to the transferee in good faith."

(3.) The mortgage of the 23 of October 1807 was registered on the 29 of that month, the date of the plaintiff's mortgage, and the plaintiff had no notice of it when he obtained his mortgage. The plaintiff's mortgage was registered on the 22 March, 1898.