Mt. Khodaijatul Kubra vs Damodar Prasad and Others

Wort, J.—This appeal arises out of an order made by the learned District Judge on 25th February 1932, in proceedings u/s 47, Civil P.C. The learned Judge decided the matter in favour of the decree-holder in the following circumstances:

The decree-holder had obtained a money decree for the balance of moneys due under a mortgage and remaining after enforcing the mortgage against the available properties of the mortgagor. In execution of that decree the decree-holder sought to attach a decree which had been obtained in the name of Jowad Husain and his wife Mt. Bibi Khodaijatul Kubra. The question which came to be deter mined by the learned District Judge was whether this decree was the decree of the Musammat in her own right or whether as representative or heir of her husband who had died before the execution proceedings with which we are concerned.

The circumstances under which that decree had been obtained in the name of the husband and wife were these: In May 1898, one Nanhe Nawab had sold to the Musammat and her husband a 5 annas 4 pies interest in village Paharpur Bhikhampur. The sale deed disclosed an incumbrance on the property but as security against any other possible undisclosed incumbrances the same vendor whom I shall describe as N executed a mortgage mortgaging other properties mentioned in the schedule to the mortgage deed. In September 1902, Jowad Husain, the husband of the lady, sold 2 annas 8 pies interest in the property which he had obtained under the sale deed of 1898 to Raja Harihar Prasad Narayan Singh.

He disclosed in that deed the incumbrance which had been recited on 2nd October of the same year in the sale deed of 1898 but he in turn mortgaged as security for any possible incumbrances undisclosed the 5 annas odd interest in village Khempore Kandha. Without going into the other facts in detail, excepting those which I shall mention, the position was this: In fact, N, the vendor under the sale deed of 1898, had encumbered the property, the subject matter of the deed of 1898, in favour of one Mohammad Saddiq. In fact the entire 5 annas 4 pies interest in the property had been so encumbered. As a result of this Raja Harihar Prasad Narayan Singh had been forced to pay up that mortgage and in order to recoup himself he brought an action and enforced the mortgage of 2nd October 1902 against Jowad Hussain.

In execution of that decree the property Khempore Kandha was put up for sale. In the meantime (the action I should have stated of the Raja against Jowad Hussain was in the year 1915) during the pendency or prior to the execution proceedings arising out of that mortgage under the two deeds, the one dated 12th June 1917 and the other the 7th March 1921; this property Khempur Kandha bad been conveyed under a baimokasa deed to Mt. Bibi Khodaijatul Kubra. That being so, she came forward as an interested party and paid off the decree in the execution proceedings arising out of the mortgage suit by the Raja. Having done this she claimed to be subrogated to the rights of the original mortgagee and consequently brought an action to enforce the security of 18th May 1898.

In that action to enforce the security she joined as coplaintiff her husband, and it was in those circumstances that the decree was obtained which is sought to be attached by the decree-holder in these proceedings. Now the learned District Judge came to the conclusion that the decree being in the names of the husband and wife and being of the opinion that the parties were not entitled to go behind the decree, came to the conclusion that the decree was the property jointly of the husband and wife.

On the part of the Musammat, Mr. Khurshed Husnain contends that the learned District Judge was wrong in this conclusion and argues that in determining the question of whether this decree was the property of the Musammat in her own right, he was entitled to look at the judgment given by the learned Subordinate Judge in the action brought by the husband and the wife, the Musammat, in enforcing the security. In the plaint in the action the fact of the payment by the wife of the decree in the execution proceedings arising out of the action by the Raja Harihar Prasad Narayan Singh was alleged, the issue framed by the learned Subordinate Judge, being the first issue, was "whether the suit as framed is maintainable." In coming to a conclusion on that issue the learned Judge had stated:

The ekrarnama gives the right to recover the money paid. Plaintiff 1 paid the price of the prior encumbrance. This payment was tantamount to an assignment of the mortgagee''s rights. Considering all the facts of the case, I find that the suit as framed is maintainable.

The obvious meaning of the decision of the learned Subordinate Judge on this point was that the Musammat was subrogated to the rights of the mortgagee and therefore was entitled to bring the suit in enforcement of the mortgage. It was in that way that the learned Judge disposed of the issue whether the suit was maintainable or not. It is the contention of Mr. Khurshed Husnain on behalf of the appellant that this was a finding of fact that the money was paid by the Musammat and that her rights under the two deeds, one of 12th June 1917 and the other of 7th March 1921, were thus established. It is contended by Mr. Bose, who appears on behalf of the decree-holder, however that this question of whether the property purporting to be conveyed by the baimokasa under the deeds which I have mentioned was not a question which the learned Judge investigated.

It was merely referred to and the payment in the execution proceedings was accepted as a fact in coming to a conclusion on the very different issue, namely whether the suit was maintainable In other words that the merits of this particular question were not investigated by the learned Subordinate Judge. Mr. Bose also contends that in these proceedings u/s 47, Civil P.C. he is entitled to go into the question of whether this decree was the property of the Musammat. in her own right or not.

On the other hand Mr. Khurshed Husnain contends that the decision of the learned Subordinate Judge, reference to which I have made, is binding upon the parties. As I understand the argument, he contends that the decree-holder in these proceedings is the representative of the judgment-debtor Jowad Husain and that as between Jowad Husain and his wife and the defendants in the former suit the matter is res judicata and so also does the plea apply to the decree-holder. In my judgment that argument is based upon a fallacy. It is based upon the assumption that the matter was being considered in execution of the decree obtained by the husband and wife.

It is obvious that that is not the fact. The matter having been considered as between the decree-holder and the judgment-debtor who happens to possess this particular form of property namely the decree, it comes to be determined u/s 47, Civil P.C., for the reason that the Musammat is the representative of the judgment-debtor, her deceased husband, and all the matters between the judgment-debtor or his representative and the decree-holder have thus to be determined under the section to which I have referred. The argument which Mr. Khurshed Husnain advances that the matter is determined on the issue in the former suit is binding upon the decree-holder in these proceedings is an argument to which I cannot subscribe.

There can be no dispute, in my judgment, that as between the decree-holder and the judgment-debtor, the question of whether the decree was the decree of the wife or of the husband is a matter that can be gone into and determined u/s 47 as between these parties. At this stage it must be noticed that the argument which Mr. Bose puts forward is from one point of view an impossible one. On the face the decree as prepared by the Court in the former suit it would appear to be a joint decree in favour of the husband and wife. The wife''s contention is that it is her separate property. From the circumstances which I have related from no point of view it seems to me could it be said to be the joint property of the husband and wife.

If, as Mr. Bose contends the baimokasa deeds of 1917 and 1921 constituted a fraud on the creditors, then quite clearly the decree would not be the joint decree of the husband and wife; it would be the decree of the husband alone. In that sense the contention that the property in the decree was the joint property of the husband and wife, in my judgment, is an impossible one and that is a matter which may have to be considered hereafter.

In the Court below it would appear that the decree-holder was content to rely upon the documents other than those put before the Court, presumably the pleadings, the judgment and the decree, and it is now suggested by Mr. Bose on behalf of the respondent that the learned Judge in the Court below prevented his giving evidence which he was prepared to give in order to support his case.

An affidavit has been used before us to which Mr. Khurshed Husnain objects. But even taking the allegations in the affidavit at their face value, it would not appear that the learned District Judge prevented the decree-holder from calling evidence to establish his case, but at the most expressed a view which is consonant with the view which he ultimately expressed in his judgment, namely, that the documents before him were sufficient upon which to come to a conclusion in the matter and that the other evidence in the case was irrelevant. If the parties accepted the view, if such view was expressed by the learned District Judge then they have only themselves to blame. They were not prevented or shut out from giving the evidence which it is now contended they desired to give.

Unfortunately however that does not dispose of the matter. As the learned Judge was quite clearly wrong in law in coming to the conclusion that he could not go behind the decree and that he was bound by the terms thereof, it seems to me that the only order that we can make in this case is that the matter should be remanded for the purpose of going into evidence and coming to a conclusion which the parties were entitled to have in this matter as to whether in fact the decree was the separate property of the wife or whether it was her property as the heir or representative of her husband the judgment-debtor.

In remanding this case, the decree-holder will be confined to the evidence of the witnesses whose names were appended to the petition which was filed before the learned District Judge on 15th January 1932, and was the subject matter of Order No. 12 in the order sheet. The appellant before us, the judgment-debtor, will be entitled to adduce such evidence as she may deem necessary to establish her case. In my judgment this appeal should be allowed, the case should be remanded to the Court below, and the costs abide the result.

Mohammad Noor, J.

I agree. The facts are very simple. One Nanhe Nawab sold his 5 annas 4 pies interest in village Paharpur Bhikhampur to Jowad Husain and Mt. Barkatunnissa in the benami name of Mohamad Hayat. He also hypothecated some properties with the vendees as a security against any loss to them on account of any undisclosed encumbrances on the property sold. The share of the two vendees was equal, Jowad Husain''s share being 2 annas 8 pies. Later on Jowad Husain sold his 2 annas 8 pies share of this village to Raja Harihar Prasad Narain Singh and executed a mortgage bond hypothecating 4 annas 5 pies mukarrari and milkiyat interest in Khanpore Kandha as security against any loss which the Raja might suffer on account of any incumbrance on that property not disclosed by Nanhe Nawab, the original vendor.

It appears that the Raja had to pay up certain incumbrances on that property in favour of one Mohamad Saddiq which were not disclosed by Nanhe Nawab, and he enforced the mortgage against Khanpore Kandha.

In the meantime the appellant before us, Mt. Khodaijatul Kubra, the second wife of Jowad Husain, came to own this Khanpore Kandha under two deeds of 1917 and 1921, and with a view to save her interest paid up the claim of the Raja and then brought a suit to recoup herself from the property which was given in security by Nanhe Nawab when he sold that village Paharpur Bhikhampur to Jowad Husain.

Though the suit was on behalf of both Jowad Husain and the appellant Khodaijatul Kubra it was distinctly stated in the plaint that the money was advanced by the latter alone to save her property and Jowad Husain had joined simply to avoid any objection which might have been raised about the frame of the suit. A decree was passed which stands in the name of both the husband and the wife. Now this decree is sought to be attached by two holders of decrees against Jowad Husain, namely, Damodar Prasad and others, respondents in this appeal, and Gopi Singh, the respondent in appeal from appellate order No. 8 of 1933. Jowad Husain is now dead and the decrees are being executed against his legal representatives including Khodaijatul Kubra. The former''s decree is under execution before the District Judge of Gaya.

On the objection of Bibi Khodaijatul Kubra against the attachment of the decree referred to above on the allegation that she alone was the real holder of that decree the learned District Judge, as has been stated by my learned brother, has held that he could not go behind the decree sought to be attached and allowed the attachment holding that the property (the decree) belonged to the husband and wife jointly. Khodaijatul Kubra has appealed.

I have no doubt that the learned District Judge is wrong. It is true that an executing Court cannot go behind the decree but he. was not executing the decree which was sought to be attached but was executing a decree against Jowad Husain in which the decree standing in the names of Jowad Husain and his wife was sought to be attached and it was his duty to decide whether that decree really belonged to the Judgment-debtor Jowad Husain or not. I agree with the order made by my learned brother that the question of ownership of the decree must be decided on the merits of the case u/s 47 of the Civil P.C. No evidence has been gone into. The decree-holder will be allowed to give evidence, but he will be confined to the evidence indicated by my learned brother. Khodaijatul Kubra will also be entitled to adduce evidence in support of her case.