BANK OF BIHAR LTD Vs. MUHAMMAD ISMAIL

JUDGEMENT

(1.) The late Maulavi Abdul Gaffar died on 28 August 1897, leaving five sons and two daughters of whom four sons and one daughter were minors. Abdul Gaffar died in a solvent condition, but it was necessary in order to pay off his debts to borrow money on the property which he left. His eldest son Maulavi Muhammad Makki, for himself and as guardian of his brothers, together with other heirs of Abdul Gaffar, Ali Ashghar and Bibi Amna, executed a usufructuary mortgage whereby they obtained Rs. 12,300 on the security of three villages of which we are here concerned with two, Dapchhu and Dapchhu Kondar. The usufructuary mortgage changed hands by assignments until it came into possession of Mt. Shaima, wife of Maulavi Ali, one of the sons of the late Abdul Gaffar. On 22nd May 1922, Mt. Shaima executed a deed by which she purported to release to Muhammad Ismail, another son of Abdul Gaffar, his share in Dapehhu and Dapehhu Kondar which she was enjoying as usufructuary mortgagee. The deed was not registered, and while Muhammad Ismail was endeavouring to procure registration, Mt. Shaima executed another deed on 14 July 1922, whereby she granted to the Bank of Bihar a sub-mortgage of the whole of the property which had been mortgaged in 1899, including the share of Muhammad Ismail. Mt. Shaima declined to admit execution for the registration of her deed of release to Muhammad Ismail; but he obtained compulsory registration on 22nd November 1922. Mt. Shaima thereupon instituted a suit against Muhammad Ismail, praying for a declaration that no portion of the consideration for the deed of release had been paid by Muhammad Ismail, and that it was invalid and inoperative.

(2.) In the suit Mt. Shaima produced a cheque on the Bank of Bihar for Rs. 3000 drawn by Muhammad Ismail, and dishonoured by the Bank on the ground that the drawer had no effects, stating that she had been induced to execute the deed of release by the payment to her of this cheque. Muhammad Ismail alleged that ten months before he had paid Rs. 2500 to Mt. Shaima for which she had given him a receipt which he produced and that on the day when the deed was registered, he had given Rs. 2665 in cash and had given a cheque for Rs. 340. The Subordinate Judge accepted Mt. Shaima's account of the transaction and decreed the suit. Muhammad Ismail appealed from that decision to the High Court.

(3.) On 9 February 1928, this appeal was disposed of by a compromise between Muhammad Ismail and Mt. Shaima. Therein it was agreed that the deed of release should be treated as a valid and operative document, but that Muhammad Ismail should not be entitled to take possession of his share in the villages until the end of 1339 Fasli. From April 1928, until the delivery of possession of the property to Muhammad Ismail, Mt. Shaima was to pay him annually the sum of Rs. 120. Mt. Shaima undertook to redeem her sub-mortgage to the Bank of Bihar by the end of 1339, and if necessary, to give further security to the Bank for the balance which might be due in order that she might be able to place Muhammad Ismail in possession of his share in the villages by 1340 Fasli. At a later date Mt. Shaima assigned the whole mortgage of 1899 to the Bank of Bihar.