JUDGMENT

Thom and Allsop, JJ. - This is a Defendant's appeal in a suit in which the Plaintiff prayed for the following reliefs:

(a) It may be declared that a one biswa property in mauza Papgaon, patti Mehdi Ali Khan, out of 3 biswas 3 biswansis and a fraction more of share and a grove and house, situate in mauza Papgaon, bounded as below, owned and possessed by the Plaintiff are not fit to be sold by auction in execution of decree No. 131 of 1930.

(b) That Defendant No. 2 had no night to mortgage the property, entered in the name of the Plaintiff, nor could he do so.

2. On the 4th June, 1918, one Mehdi Ali Khan, the husband of the Plaintiff, Mst. Jafri Begam, executed a mortgage deed in favour of Mst. Fakhr-un-nissa. On the 6th June, 1921, Mst. Fakhr-un-nissa sold her mortgagee rights to the father of Bisheshwar Dayal, Defendant No. 1 in the present suit.

3. Bisheshwar Dayal brought a suit No. 131 of 1930, upon the footing of the mortgage of the 4th June, 1918. In the suit he impleaded the mortgagor, Mst. Jafri Begam, wife of the mortgagor, and Mst. Fakhr-un-nissa, the original mortgagee.

4. In paragraph 5 of the plaint Bisheshwar Dayal averred

Defendant No. 3 is a subsequent vendee of a portion of the property mortgaged. Mehdi Ah Khan, the mortgagor, got, after the execution of the mortgage-deed sued on, the name of his wife, Defendant No. 2, entered in the khewat as against a portion of the property mortgaged. In order to evade payment of the amount due to the Plaintiff, if the Plaintiff (Defendent No. 1?) has dishonestly made a transfer of a portion of the property mortgaged in favour of his wife, Defendant No. 2, the Plaintiff is not bound by the same.

5. Mst. Jafri Begem the Plaintiff in the present suit, and Defendant No. 2 in the suit on the basis of the mortgage of the 4th June, I918, although impleaded as a Defendant in that suit, did not contest the mortgagee's claim. The Plaintiff Bisheshwar Dayal and Defendant No. 3, a purchaser of a portion of the mortgaged property, entered into a compromise, and so far as they were concerned a decree was passed by the learned Munsif who entertained the suit, in terms of the compromise. So far as the other Defendants are concerned the suit is disposed of by the judgment of the learned Munsif in the following terms:

The Plaintiff and the contesting Defendant (No. 3) have compromised; against the other Defendants, the claim is proved ex parte. The Plaintiff is content with a decree against them also in terms of the compromise. It is therefore ordered that a decree be prepared against the Defendants in terms of the compromise.

6. The Plaintiff in the present suit, Mst. Jafri Begam, maintains that the decree in the mortgage suit No. 131 of 1930 is not binding upon her in respect that the property mortgaged was transferred to her in lieu of dower by her husband on the 1st September, 1914.

7. The learned Subordinate Judge has sustained the pleas of the Plaintiff. He has held that the transfer of the 1st September, 1914, was a genuine transaction and that in the circumstances the Plaintiff is entitled to decree in terms of the prayer of the Plaint.

8. The Defendants pleaded inter alia that the suit was barred by Section II of the CPC and that the transfer of the 1st September, 1914, was a fictitious transaction.

9. Learned Counsel for the Appellant in appeal before us contended that the decision of the learned Munsif in the mortgage suit was final and binding and operated as res judicata against the Plaintiff in the present suit. In answer learned Counsel for the Respondents, has maintained firstly, that the decree of the learned Munsif was null and void in respect that the Munsif had no jurisdiction to decide the question of the Plaintiff's title, and, secondly, that in any event the Plaintiff could not have been made a party to the mortgage suit.

10. It is a matter of admission that the Munsif who decided the mortgage suit had jurisdiction in regard to subjects up to the value of Rs. 4,000 only. Le