FAYAZUL RAHMAN Vs. MUHAMMAD USMAN

JUDGEMENT

(1.) One Abdullah owned among other parties the following: (a) Nizamuddinpur 10 out of 20 biswas. (b) Tayabpur 171/2 biswas out of 20 biswas.

(2.) Abdullah's wife Mubarak-un-Nissa brought an action against him for her dower. The suit was compromised and the terms of the compromise were embodied in the decree dated the 29 August, 1889. The portions of the decree bearing on this appeal are: "The defendant (Abdullah) gives the whole of the undermentioned properties to the plaintiff (Mubarak-un-Nissa) in lieu of Rs. 10,00) the dower claimed by her. Now the plaintiff is the owner of the said properties but the defendant will retain possession over 10. biswas of Nizamuddinpur alias Manwala for his life. The income of it will be appropriated by the defendant and he, in case of urgent necessity, may hypothecate, pledge or sell his life-estate (dakhal keen hayatee) in the 5 biswas out of the said 10 biswas. On the death of the plaintiff those who may be the heirs of both the plaintiff (Mubarak-un-Nissa) and the defendant (Abdullah) will be the owners of the properties." Mubarak-un-Nissa died on the 25 of May, 1894, and Abdullah on the 19 April 1897, executed a usufructuary mortgage in favour of defendant No. 1. The properties mortgaged were: (a) 4 biswas out of 5 biswas of Nizamuddinpur. (b) 2 1/2 biswas of Tayabpur.

(3.) On the 2 April, 1899, Abdullah sold to the plaintiff 3 3/4 out of the 5 biswas of Nizaomuddinpur of which according to his construction of the decree No. 97 of 1889 dated the 29 of August, 1889, he was the owner and l 1/4 biswas out of the other 5 biswas of Nizamuddinpur which he alleged to have inherited from his wife Mubarak-un-Nissa. Abdullah died in 1899. The plaintiff on the 14 June 1907 brought an action for the redemption of the property mortgaged by Abdullah under the mortgage deed dated the 2 April, 1889.