ULFAT HOSSAIN Vs. GAYANI DASS

JUDGEMENT

(1.) This is a suit brought for a declaration that the plaintiff as purchaser at a Government Revenue Sale is the proprietor of a 2 annas 5 gundas and odd share in a certain mouza and for possession thereof.

(2.) The facts, as far as they are material to the questions we have to decide, are as follows. The share in question originally belonged to one Musammat Razihan. In 1875, she created a molcarari of which her daughter Musammat Fazilan was tenant for life with a remainder to her son Waizuddin. In 1878, she transferred the proprietary interest to Musammat Fazilan. In 1884, Fazilan and Waizuddin mortgaged the share to Rai Radha Kissen Bahadur. In 1892, Mohanth Gayani Dass, the present defendant-respondent, purchased the interest of Waizuddin, that is his, equity of redemption in the molcarari. On the 15 of April 1899, Rai Radha Kissen got a decree absolute in a mortgage suit in which Waizuddin, Fazilan, and Gayani Dass, among others, were defendants, and became purchaser at the auction sale held in pursuance thereof, the sale certificate being dated 15 of September in the same year. Before this sale, however, the proprietary interest in the share in suit had been brought to sale at a Revenue Sale on the 25 April 1899, and had. been bought by one Dharam Singh. In 1900, there was another Revenue Sale and the plaintiff-appellant was the purchaser. Against his claim for possession, the defendant sets up the molcarari which he alleged is still in existence and which the plaintiff did not acquire by his purchase, which was subject to it as being a prior encumbrance. The lower Appellate Court has held that this contention must prevail, because the mokarari was in existence at the time of the second Revenue Sale. As he rightly says, the case turns on a question of merger, and we must see whether merger has or has not in fact occurred.

(3.) It is not suggested that the sale to Dharam Singh can effect the case, and it is not denied that the effect of the sale to Rai Radha Kissen in the mortgage suit was to vest in him the life estate of Musammat Fazilan, the reversionary interest of Waizuddin in the moharari, and also the proprietary interest of Razihan in the share in question.