MT TAMIZ-UN-NISSA BIBI Vs. MUHAMMAD HUSAIN

JUDGEMENT

(1.) The only question before us is whether a part of the claim is not barred on the ground of res judicata. One Riyaz Husain was the owner of a certain property which he mortgaged with possession to the respondent, Syed Muhammad Husain. He died, leaving him surviving three daughters and one son. The son, Faiyaz Husain, sold the entire property to the respondent, Muhammad Husain, alleging that he was the sole heir of this father. Out of the sum of Rs. 4,000, Rs. 2,400 went to pay off the mortgage and the balance was paid to the vendor. Tamiz-un- nissa, the appellant before us, a sister of Faiyaz Husain, brought a suit (No. 336 of 1920) in the Court of the Munsif of Moradabad for recovery of her one-fifth share of the inheritance. Muhammad Husain, in that suit, in his defence, did not set up his usufructuary mortgage. The result was that the suit of Tamiz-un-nissa was decreed for possession. The respondent, Muhammad Husain, has now brought the suit, out of which this appeal has arisen, for recovery of possession over three- fifths share in Riyaz Husain's property, on the ground that he was entitled to possession of this share as a mortgagee. Faiyaz Husain's legitimate share in his father's property was two-fifths. The plaintiff has, evidently, kept this two-fifths as his property on the ground that this vendor was the owner of this share.

(2.) In the Court of first instance Tamiz-un-nissa pleaded that the suit was barred on two grounds, namely, res judicata and estoppel. This defence found favour in the Court of first instance and the whole suit was dismissed. On appeal by the plaintiff, the learned District Judge set aside the decree of the Court of first instance and decreed the entire suit. He was of opinion that the earlier suit did not operate as res judicata, and that there was no question of estoppel.

(3.) In this Court it has been urged that so far at least as Tamiz-un-nissa is concerned the claim as regards her one-fifth share is barred as res judicata.