UMES CHUNDER SIRCAR Vs. MUSSUMMAT ZAHOOR FATIMA

JUDGEMENT

(1.) THEIR Lordships are of opinion that the house in Sahebgunje should be included in the direction to sell, and they will now express their opinion as to the question of the 17 dams of property as to which the Plaintiff and the Defendant Zahoor each claims to be the absolute owner. The question is, who acquired the ownership first in point of time? The Plaintiff's claim depends on his purchase of the 17th July, completed on the 22nd of September, 1879. If that is a valid purchase, it is prior to the purchase of the Defendant, which did not take place till the year 1881; and the Plaintiff is entitled to that share of the property.

(2.) THE purchase took place under these circumstances. On the 14th of April, 1879, one Iswardyal, who for this purpose is identical with the Plaintiff, having got a decree on a mortgage, applied to enforce it "by attachment and sale of the immoveable properties owned by the judgment debtor" (the judgment debtor being Farzund Ali, the mortgagor), "as specified in the inventory mentioned below." The inventory mentioned below specifies 1 anna out of 16 annas of mouza Sirdilla, the property mortgaged in the bond; and also 7 annas out of 16 annas of Sirdilla, owned by the judgment debtor, which was property not mortgaged in the bond. That application includes 8 annas of the family property. Eight annas was a larger share than Farzund All was actually entitled to, because he and his brother held equal shares in the property, and their sister-in-law Hosseini had a share also; but the circumstance that the description of the property includes more than the judgment debtor was actually entitled to would not tend to exclude the 17 dams in question from that description.

(3.) THE next question, on which also the Courts below have differed, is whether the Plaintiff has a right to treat the Defendant Zahoor as being only a mortgagee of the share of the property which was purchased by her in execution, and on that footing to redeem her mortgage. The District Judge thought that the Plaintiff had that right, and gave him a decree accordingly. The High Court thought otherwise, and varied the decree by dismissing the Plaintiff's suit so far as regards the two annas in question.