Court modifies charge on property, allows appeal. Charge on one share invalid. Partition granted with costs shared accordingly.

The court allowed the appeal, modifying the lower court's decree. It held that the charge created by Wazirunnissa on Marghub Hasan's share was invalid and illegal. However, the charge would continue in perpetuity on Iqbal Hasan's share in favor of the defendants-appellants' descendants. The plaintiff, Mt. Kalawati, was entitled to partition the entire property purchased through the Revenue Court, with the charge attaching to Iqbal Hasan's share. The costs were to be shared proportionately between the parties based on their success and failure in both courts.

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Issues Involved:
1. Validity of the charge created by the deed of agreement dated 13th January 1919.
2. The extent of the share purchased by Mt. Kalawati at auction.
3. Binding nature of the previous decree on Mt. Kalawati.
4. Rights of an attaching creditor in the context of a charge.

Issue-Wise Detailed Analysis:

1. Validity of the Charge Created by the Deed of Agreement Dated 13th January 1919:
The primary issue revolves around the validity of the charge created by Wazirunnissa in favor of Mt. Faruqunnissa and her descendants. The court examined the deed of agreement executed by Wazirunnissa, which provided a maintenance allowance of Rs. 20 per month to Mt. Faruqunnissa, charged upon a specific share of property. The agreement stated that this charge would continue in favor of Faruqunnissa's descendants from generation to generation.

The court noted that while the agreement was valid during Wazirunnissa's lifetime, it attempted to create a perpetual charge on an uncertain and undefined part of the inheritance of one of her heirs, Marghub Hasan. The court held that this attempt to burden only Marghub Hasan's share, while keeping other heirs' shares free, violated the provisions of the Mohamedan Law, which restricts testamentary dispositions and requires the consent of other heirs. Consequently, the court found the charge on Marghub Hasan's share to be invalid and illegal under Section 23 of the Contract Act.

2. The Extent of the Share Purchased by Mt. Kalawati at Auction:
The court examined whether Mt. Kalawati had purchased the entire share of Iqbal Hasan or only a part of it. The sale proclamation and subsequent documents indicated that the property sold at auction consisted of 388 1/2 sihams out of 480 sihams, with a maintenance allowance of Rs. 20 per month announced as an encumbrance. The court concluded that the entire share, after deducting 1/19th, was sold, and the charge was announced, but the decree-holder (Mt. Kalawati) did not admit its validity.

3. Binding Nature of the Previous Decree on Mt. Kalawati:
The court addressed whether Mt. Kalawati, as the auction-purchaser of Iqbal Hasan's share, was bound by the previous decree obtained by the three sons of Mt. Faruqunnissa for the enforcement of the charge. The court held that ordinarily, an auction-purchaser is a representative of the judgment-debtor and bound by decisions against them. However, since the Munsif's court was not competent to hear the subsequent suit, the judgment on the validity of the charge could not bind the parties in a higher court. Therefore, while Mt. Kalawati was estopped from challenging the previous decree regarding Iqbal Hasan's share, she was not prevented from contesting the validity of the charge for other properties.

4. Rights of an Attaching Creditor in the Context of a Charge:
The court considered whether Mt. Kalawati, as an attaching creditor who had attached Iqbal Hasan's share before the suit of 1926, had a right to redeem the charge and whether she was bound by the previous decree. The court noted that an attaching creditor does not acquire an interest in the property but merely prevents its transfer. Although Section 91(f) of the Transfer of Property Act allowed attaching creditors the right of redemption, this provision was specific to mortgages and did not extend to charges. Consequently, the court held that Mt. Kalawati, as an attaching creditor, did not have a paramount interest and was bound by the decision against the judgment-debtor.

Conclusion:
The court allowed the appeal, modifying the lower court's decree. It held that the charge created by Wazirunnissa on Marghub Hasan's share was invalid and illegal. However, the charge would continue in perpetuity on Iqbal Hasan's share in favor of the defendants-appellants' descendants. The plaintiff, Mt. Kalawati, was entitled to partition the entire property purchased through the Revenue Court, with the charge attaching to Iqbal Hasan's share. The costs were to be shared proportionately between the parties based on their success and failure in both courts.

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