SAIYID QASIM HUSAIN Vs. HABIBUR RAHMAN

JUDGEMENT

(1.) The appellants are the representatives of Izatunnissa Begam, the widow of one Azhar Husain, a Shia Mohammedan, who died in 1916. His sole heir according to the Shia law was his sister Ahmadi Begam, Izatunnissa Begam was entitled on her husband's death to a dower of Rs. 40,000 and one gold mohar of the value of Rs. 15. Azhar Husain in his life time had executed certain deeds by which he purported in effect to denude himself of his immovable properties which were of considerable value. Shortly after his death Izatunnissa Begam took proceedings in the Subordinate Judge's Court at Fatna to enforce her dower claim. She impleadod in her suit as the principal defendants, Ahmadi Begam and the other persons interested in A zhar Huaain's alienations and as perform defendants certain other creditors of the deceased. She claimed by her plaint that these alienations were invalid, and that she was entitled to recover her dower debt from the properties. She prayed for a decree for the Rs. 40,015, for a declaration that the properties specified in the schedules to the plaint were "the heritage" of Azhar Husain, and that "the plaintin" be empowered to recover her decree from them." A specific issue was raised at the hearing "whether the dower debt...can be realised from the properties mentioned in the plaint." The Subordinate Judge on January 81, 1918, decided in Izatunnissa's favour and by his decree it was ordered and decreed that this suit be decreed with costs and interest at the rate of 6 per cent, per annum from this date up to the date of realization, that Rs 40,000 (forty thousand) and one gold Mobnr worth Rs. 15 be declared the dower debt of the plaintiff, that the properties entered in schedules Nos. 1 and 2 to the plaint be treated to be the properties of Khaja Azihar Huasuiu from which the plaintiff entitled (to recover) the decretal money.

(2.) There was no appeal from this decree which is therefore binding between the parties, and the only question now is whether on a proper construction of the decree the dower debt was charged upon the properties.

(3.) In July, 1923, while the greater part of this debt was still unsatisfied, Ahmadi Begam as the heir of Azhar Hussain sold two kahman of the scheduled properties to the first and eecond respondents who alone are contesting this appeal, It is admitted that they had full knowledge of the decree in the dower suit, and in fact they claim that the decree was mortgaged to them by Izatunnisa. If therefore the decree created a charge upon the properties, it is clear that (apart from any question of the mortgage) they bought the properties subject to the charge.