Wajid Ali vs Safqat Husain

This appeal arises out of a suit for redemption of a mortgage. On the 30th of April 1897, one Mashuk Ali mortgaged his estate under two documents in favour of the defendant No. 1, On the 14th of May 1906, his heirs sold the equity of redemption to the defendant No. 2. Defendant No. 2, on the 23rd of April 1907, under a sale-deed, transferred the same right to the present plaintiff. The defendant No. 1, the mortgagee, was also apparently a co-sharer in the mahal in which this property was situate. In regard to the sales of the 14th of May 1906, and the 23rd of April 1907, he brought no suit to assert his right to pre-emption. When that right was finally barred, the plaintiff, on the 29th of April 1908, brought the present suit to redeem the mortgage of April 1897. There was a defence that the transaction was not a mortgage but a sale oat and out. That defence has been decided on second appeal in this Court against the defendant and it has bean held as between the parties that the transaction of the 30th of April 1897 constituted a mortgage. Another defence raised by the defendant No. 1 was that he had a right to preempt the sales of the 14th of May 1906, and the 23rd of April 1907, and that, therefore, the plaintiff could not be allowed to redeem the mortgage. The Court of first instance decreed the claim. The lower Appellate Court has dismissed the suit on the ground that the defendant No. 1 had a right to pre-empt in the cases of the two sales mentioned, holding that the defendant had put forth his right to pre-emption as soon as his right to ownership was disputed by the plaintiff. As a matter of fact, the finding that the transaction of the 30th of April 1897 constituted a mortgage and not a sale is a finding to the effect that defendant No. 1 had no right of ownership in the property. When the present suit was brought, his right to pre-empt the sales of the 14th of May 1908, and the 23rd of April 1907, was barred. He had, therefore, in respect of those two sales, no right of pre-emption at all. Under these circumstances, the plaintiff was clearly entitled to redeem. We allow the appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance, dated the 7th of December 1908, with costs in all Courts including fees in this Court on the higher scale. We extend the time for payment to six months from this date.