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Allahabad High Court · body

1942 DIGILAW 26 (ALL)

Imtiazun-Nissa v. Abdul Qasim alias Mohd. Jan

1942-02-12

DAR, IQBAL AHMAD

body1942
JUDGMENT Iqbal Ahmad, C.J. and Dar, J. - This is a Plaintiff's appeal arising out of a suit for possession over a specific portion of a house. The facts as found by the lower appellate Court are as follows: The house in dispute belonged to two persons named Abdul Qasim and Nabi Bux, Abdul Qasim had one-third share and Nabi Bux had a two-third share in the house in dispute. On the 20th of January, 1913, Abdul Qasim mortgaged by means of a simple mortgage his one-third shire in the house to one Mst Imtiazun-nissa. Thereafter in 1914 Nabi Bux brought a suit against Abdul Qasim for partition of his two-third share, Mst. Imtiazun-nisa, the mortgagee, applied in that suit to be made a party, but her application was dismissed. The partition suit was ultimately decided and as a result of the decree in that suit a specific portion of the house was allotted to Abdul Qasim and another portion of the house was allotted to Nabi Bux. 2. After the decree in the partition suit Mst. Imtiazun-nissa put her mortgage into suit and obtained decree. The decree was for sale of one-third share of Abdul Qasim in the entire house and not for a sale of the specific portion of the house that as a result of the partition decree, was allotted to Abdul Qasim. The one-third share of Abdul Qasim in the entire house was put to sale and purchased by Mst. Imtiazun-nissa. In execution Mst. Imtiazun-nissa prayed for possession of that portion of the house that was as a result of the partition, given to Abdul Qasim. Abdul Qasim successfully objected in the execution department and Mst. Imtiazun-nissa's application for delivery of possession was dismissed. She then brought a suit giving rise to the present appeal for possession of the specific portion of the house that has been allotted to Abdul Qasim. 3. The trial Court decreed the suit but the lower appellate Court reversed the decree of the trial Court. 4. In our judgment, the decree of the trial Court was perfectly correct and ought to be restored. It cannot be disputed that the specific share in the house that was allotted to Abdul Qasim was in lieu of his one-third share in the entire house. In other words, the share allotted to Abdul Qasim represented his share in the entire house. It cannot be disputed that the specific share in the house that was allotted to Abdul Qasim was in lieu of his one-third share in the entire house. In other words, the share allotted to Abdul Qasim represented his share in the entire house. Abdul Qasim had, as already stated, mortgaged his entire one-third share in the house to Mst. Imtiazun-nissa. The share allotted to Abdul Qasim on partition, therefore, represents the security which Abdul Qasim had given to Mst. Imtiazun-nissa. It follows that, as purchaser of Abdul Qasim's shire in the entire house, Mst. Imtiazun-nissa is entitled to possession of that portion of the house that was allotted to Abdul Qasim by the partition decree. It is true that the mortgage in favour of Mst. Imtiazun-nissa having merged into the decree ceased to exist and as such the principle of substituted security may not be applicable to the case, but there can be no doubt that Mst. Imtiazun-nissa is asking for no more than what was in substance given to her by the decree for sale and what in substance she had purchased at the auction sale. As a result of the decree for sale and execution of that decree, Abdul Qasim lost his entire rights and interests in the house in suit and those rights and interests vested in Mst. Imtiazun-nissa. Mst. Imtiazun-nissa is, therefore, entitled to be put in possession of that portion of the house which was allotted to Abdul Qisim in lieu of his one-third share in the entire house. We accordingly allow this appeal, set aside the decree of the lower appellate court and restore the decree of the trial Court with costs in all courts. This decree will not operate as against Bishambhar Nath, Respondent No. 3, or his legal representatives, in as much as Bishambhar Nath died during the tendency of the appeal in this Court and his legal representatives were not brought on the record.