Ryves and Gokul Prasad, JJ.
1. The facts which have given rise to this appeal are briefly as follows: One Sheikh Bakshu, who owned a 13 bigha 8 biswa and 10 dhur share, died after the mutiny leaving his two sons, Kadir and Amir, as his heirs, Amir left a widow, Musammat Azima, defendant No. 5, and a minor son Abdullah, plaintiff, as his heirs. Musammat Azima took possession of the whole of the estate of Amir deceased, that is of J in her own right as an heiress and of 7/8 in lieu of her dower. Later on Musammat Azima married her deceased husband's brother Kadir. So that as far as actual possession of the estate of Sheikh Bakshu was concerned, it was with Azima and Kadir. On the 7th of February, 1872, these two persons transferred half of the property which originally belonged to Sheikh Bakshu to Sheikh Rasai. One of the points for decision in this appeal would be as to what was sold under this deed and what effect the deed would have on the rights of the respective parties to this appeal.
2. The plaintiff's case is that what was actually sold was the half share of Amir over which Azima was in possession as mortgagee, and that Rasai and after him his representatives, defendants Nos. 1 to 4, have continued in possession as mortgagees. That the plaintiffs asked them 'to return the mortgaged share on payment of a Reasonable amount,' but the defendants aforesaid refused and hence this suit. Defendant No. 5, Musammat Azima, the widow of Amir, has been impleaded on the inexplicable ground that she did not join in the suit. The contesting defendants 1 to 4 pleaded that what was actually sold was the property which was owned and possessed by Kadir and Amir, implying that the mortgagee rights were not transferred as alleged by the plaintiffs. They further pleaded that Rasai, and after him they, had been in adverse possession as proprietors. They also pleaded in bar Article 134 of the first schedule of the Limitation Act, IX of 1908. We are not concerned with the other pleas raised in defence.
3. The Munsif of Azamgarh came to the conclusion that the deed taken as a whole clearly shows that it purported to transfer a portion of that share which was held by the vendors as absolute owners. He further held that Musammat Azima sold 14 biswas 17 dhurs which she owned as a proprietor and the remainder out of the 6 bighas 14 biswas and 5 dhurs sold under the deed of 1872 was the property of Kadir. He further found that the defendants and their predecessor in title had been in possession as absolute owners since 1872. A portion of the property in dispute had been transferred by the widow of Rasai, the vendee, by deed of gift so far back as 25th of July, J 899, and the defendants and their transferees had been claiming the absolute ownership of the land from the very beginning. In the result he dismissed the suit.
4. The plaintiff went up in appeal, contested the finding of the Munsif as to the interpretation put by him on the sale deed, claiming that the property which Musammat Azima sold was the property over which she was in possession in lieu of her dower; debt, that is to say, as a mortgagee, and no question of adverse possession arose in the case. The District Judge, Mr. Mundle, was of opinion that the wording of the sale-deed was very ambiguous and was capable of several interpretations, but he did not come to any finding as to what was actually sold, inasmuch as he was of opinion that having regard to the ruling in the case of Mohammad Husain v. Bashiran (1914) 12 A.L.J. 1141 a decision of this question was immaterial, inasmuch as a widow in possession in lieu of dower could only transfer her possessory right along with the claim of dower and not otherwise, and as there was no assignment of the dower debt in this case, the possession of the transferee could not be that of a mortgagee. It could only be adverse and the claim was barred by limitation. He, therefore, dismissed the appeal.
5. The plaintiff comes here in second appeal. His first contention is that Musammat Azima sold her possessory right in the property of Amir and, secondly, that the claim was not barred by limitation. The case has been argued fully and with great ability by Maulvi Tqbal Ahmad for the appellant and Maulvi Mukhtar Ahmad for the respondents. The first question we have to decide is what was, as a matter of fact, transferred under this deed. The deed begins with a recital that the property, namely, 13 bighas, 8 biswas, and 10 dhurs was 'the ancestral property of the executants over which Shaikh Kadir was in possession as an heir and Musammat Azima was in possession both as an heiress and in lieu of dower; out of the aforesaid property, we sell half, that is, 6 bighas, 14 biswas, and 5 dhurs to Sheikh Rasai etc., etc.' Now at first sight and according tothe ordinary sales of interpretation it would appear that Kadir sold half out of the 6 bighas and odd aforesaid, and Azima sold the remaining half which included part of both the proprietary and possessory rights which she had in it, that is to say, her 1/8 share as owner and her 7/8 share of which she was the possessor. So that in any event the plaintiff's suit must fail as to the 1/8 plus 1/16, that is A of the property in suit.
6. The next question which naturally arises is as to what is the legal consequence of the transfer by the lady of her possessory right in the 7/16 mentioned above. It has been contended on behalf of the respondents that the widow could not have transferred her right to possession apart from the dower debt, and reliance is placed on the case of Mohammad Husain v. Bashiran (1914) 12 A.L.J. 1141. It is sufficient to say that the ground on which the older cases were differentiated was that in the older cases the suit had not been brought in the life-time of the widow. The present case has, as is clear from the facts stated above, been brought during the life-time of the widow and therefore, strictly speaking, the case mentioned above would not apply. It has been held in the case of Musammat Kummur-ool-nissa Begum v. Mahomed Hussun (1866) N.W.P. H.C. Rep. 287 (290): 'At the same time we are satisfied that as the property in suit formed a portion of Umda Bpgam's husband's estate, the whole of which was in her possession as security for her dower the widow would have had the power to mortgage such hypothecated interest and that, during her life-time, the defendants, except by payment of the dowry, could not have released the mortgage.' This case was quoted with approval in the case of Ali Bakhsh v. Allahdad Khan (1910) I.L.R. 32 All. 551, where their Lordships observed: 'The right is one which the widow secures as a creditor for her dower and it is one to continue holding until her debt is satisfied. Such a right is property, and prima facie in the absence of any law or contract to the contrary, it is property which is both heritable and transferable.' So that the argument of Maulvi Iqbal Ahmad, that the sale of her possessory rights by Musammat Azima, unaccompanied by a transfer of the down debt, was, not warranted by law and therefore invalid, falls to the ground, and on this basis alone the plaintiff's claim could not fail as being barred by the defendants having acquired adverse proprietary title in the property because of an invalid sale in their favour.
7. Let us examine this position from another standpoint. It is new settle law that adverse possession can be acquired over limited rights such as those of a mortgagee also, but adverse possession against a mortgagee would not of necessity be adverse to the mortgagor. So that the right which Rasai and his successors acquired by virtue of taking possession under the invalid deed, admitting it for the sake of argument to be invalid, would be the acquisition of the rights of Musammat Azima, but would not of necessity extinguish the rights of the other heirs. There is nothing in the present case to show that there was anything which tended to destroy the rights of the heirs. We have already said that the deed-itself shows the nature of the possession of Kadir and Azima over the property which they purported to transfer, and rata purchaser Sheikh Rasai could not be said to have been unaware as to the rights which he was purchasing. Article 134 of the first-schedule of the Limitation Act would not, therefore, apply. This was so held in the case of Drigpal Singh v. Kallu (1915) I.L.R. 37 All. 660. We are, therefore, of opinion that the suit is not barred by limitation. The result of the view which we take in this case is that the plaintiffs suit must fail as regards 9/16 of the property in dispute. As to the remaining 7/16 of the property, the plaintiff is entitled to a decree for possession on payment of such proportion of the dower debt of Musammat Azima as might be chargeable against that share. The question of the amount of the dower debt of Musammat Azima has not been tried by either of the Courts below. Their Lordships remitted an issue to determine it.