BHAGIRTHIBAI KOM MAHADEV ABHYANKAR; MIRKHA WALAD IMAMKHA Vs. ROSHANBI KOM MAHOMED HANIF; BHAGIRTHIBAI KOM MAHADEV ABHYANKAR

JUDGEMENT

(1.) The facts which we have had to master in the consideration of these appeals are complicated, but for the purpose of Appeal No. 113 of 1917 they may be simply stated. A Mahomedan named Maniaba died possessed of five houses, leaving as his heirs a son, two widows and three daughters. The son Mahomed Hanif died afterwards, leaving as his heirs a daughter Aminabi, his widow Roshanbi and a son who was afterwards held to be illegitimate and not to be an heir. A money decree was obtained against the estate of Mahomed Hanif in a suit by a creditor in which the defendants were that deceased person s widow Roshanbi, his step-mother Sakinabi and the son Abdul. His daughter Aminabi who was really his principal heir was not made a party to the suit. Thereafter one of the five houses known as No. 871 was sold in execution of the decree and bought by defendant No. 1. What was sold was the right, title and interest of Mahomed Hanif deceased. The plaintiff has become, by processes which it is immaterial at present to set out, the owner of whatever interest Aminabi had in this house. She sued inter alia to recover by partition Aminabi s share and her claim in this particular was rejected. She now appeals to us.

(2.) She claims that Aminabi s interest in the house was not bound by the decree obtained by the creditor, because Aminabi was not made a defendant in the creditor s suit and that consequently her interest in the house did not pass to the auction-purchaser, defendant No. 4. The latter contends, firstly, that Aminabi s share in the house could be sold under the decree, for the decree was against the estate of her deceased father from. Whom she inherited her interest in- the house; and, secondly, in any event, that Aminabi s interest in the house passed at the sale; for what was sold and what was paid for was the father s interest. If the decree was such that Aminabi s interest could be sold under it, then undoubtedly that interest was sold, for it was included in the father s interest the whole of which was sold.

(3.) If her interest in the house was not bound by the decree, nevertheless, as it was in fact, sold, it is contended that it would pass to the purchaser, defend- , ant No. 4. This contention, however, we think, has nothing substantial to support it. There cannot be a valid sale under a decree unless the property sold can properly be sold under the decree.