SAJJAD HUSAIN Vs. QURBAN ALI BEG

JUDGEMENT

(1.) The plaintiff filed a suit on the 11 of April 1921, for a declaration that Mt. Usmani Begam had no right to make a gift of a share in a house, which belonged to the plaintiff, in favour of her son, Qurban Ali, and that Qurban Ali was not entitled to resist execution of a partition decree which the plaintiff had obtained for his share of the house against Usmani Begam.

(2.) The plaintiffs case is that the house belonged to his father Irshad Husain, and that a share of 7/16ths devolved upon him by inheritance. Usmai Begam in execution of a money-decree against Mt. Mumtazunnissa (the widow of Irshad Husain and mother of the plaintiff) got the whole house put to sale and purchased it herself. The date of the sale was the 29 November 1904, and the sale was confirmed on the 2 February, 1905. On the 13 March 1916, the plaintiff Sajjad Husain brought a suit for possession of his share in the house by actual partition against Mt. Usmani Begam and his brother Ikram Husain. He obtained a final decree for partition on the 30 March 1917. In execution of the decree Qurban Ali, Defendant No. 1, the son of Usmani Begam,resisted the execution proceedings claiming that he was the sole owner of the house by virtue of a deed of gift from Usmani Begam, dated the 26 January 1915. The plaintiff was accordingly ordered to establish his title to a share in the house by a regular suit. Hence the suit which has given rise to this appeal.

(3.) The only point which we have to consider in second appeal is whether the suit is not barred by limitation. The lower appellate Court found that the suit was barred by limitation. Usmani Begam undoubtedly purchased the whole house on the 29 November 1904, and was given possession of the whole house as auction-purchaser. It is true that on the findings of the Courts below she was not entitled to bring to sale the whole house in execution of her decree against Mumtazunnissa only, since the latter had only a share in the house. Nevertheless, Usmani Begam did in fact purchase the whole house and got possession thereof, and in these circumstances her possession can only be considered as adverse to Sajjad Husain, who was entitled as an heir of Irshad Husain to 7/l6ths share in the house.