George Knox, Acting, C.J. and Dillon, JJ.
1. This appeal arises out of a suit for redemption of a mortgage, dated the 28th of January 1846. We think it well to begin by explaining the array of parties. Plaintiffs Nos. 1 and 2 are purchasers to the extent of a moiety of the equity of redemption of mauza Lohari from the heirs of the original mortgagor. Plaintiffs 3 and 4 are the heirs of the original mortgagor and are interested [in the remaining moiety. The defendants are the heirs of the mortgagees. The following genealogical tree will explain the relationships of the parties:
(1) Ashraf-ul-niasa = Mahdi Ali = (2) Umda Begam.
Ghisyawan or Ghisia, |
(alleged by defendants |
to have survived Mahdi |
| | |
Husain. Piari. Ashkari alias
Ishtiaq Husain, Zinda Begam.
plaintiff No. 3. plaintiff No. 4.
(1) Parbati = Baldeo Sahai = (2) Sunder
(Defendant No. 1). (Defendant No. 2).
2. The plaintiffs allege that Mahdi Ali was the owner of mauza Lohari, 2/3rds of which was his ancestral property, and the remaining 1/3rd he had inherited from Musammat Hingia. He mortgaged 1/3rd to Sita Ram and Sheo Lal, who, together with Baldeo Sahai, the son of Sheo Lal, constituted a joint Hindu family at the time of the mortgage.
3. The mortgage, which was a usufructuary one for a sum of Rs. 4,000, was for a term of tea years. On the death of Mahdi Ali, who was a Shia Muhammadan, his wife, Ashraf-ul-nissa, being childless, did not inherit any portion of her husband's estate.
4. The whole property therefore devolved upon Umda Begam, a second wife, and her three daughters, and after the death without issue of Husaini and Piari, two of the said daughters, the property came to Ashkari, the third daughter.
5. Plaintiffs 3 and 4, who are the son and daughter, respectively, of the said Ashkari, inherited the estate from their mother. The plaintiffs 3 and 4, having thus become entitled to the equity of redemption in the whole property sold a moiety of it to plaintiffs 1 and 2. The plaintiffs claim redemption of the whole of the mortgaged property. Mesne profits are also claimed on the ground that the mortgage was effected before the usury laws were repealed, and mortgagees would, therefore, be only entitled to charge interest at the rate of 12 pet cent. per annum on the mortgage money. The case for the defence is that Ashraf-ul-nissa had a daughter by Mahdi Ali who survived her father, and so Ashraf-ul-nissa was one of her husband's heirs; that Mahdi Ali died in debt in 1852, and that Ashraf-ul-nissa, who was in possession of 10 biswas of Lohari in lieu of dower, sold her share by a sale-deed, dated the 27th of May 1853, to Baldeo Sahai, the husband of the defendants, to pay off the said debt, and that as to the remaining 10 biswas of the village, they were sold by auction on the 20th of March 1854, in execution of decrees passed against the heirs of Mahdi Ali, and were purchased by Sheo Lal, one of the mortgagees. From him they passed to Baldeo Sahai, his son, the husband of defendants, who inherited them after his father's death.
6. The defendants contend that if Ashraf-ul-nissa had no daughter who survived her father, and therefore had no title to convey to Baldeo Sahai, she and Baldeo Sahai must be regarded as strangers, and as Baldeo Sahai had been in possession since the date of sale, or at all events since 1863, when we first find his name entered in the revenue papers, his possession must be regarded as adverse to the heirs of the mortgagors, and, as the suit was brought in 1904, it is barred by the 12 years' rule of limitation. It is also pleaded that Baldeo Sahai was not joint with his father, Sheo Lal, at the time he purchased the 10 biswas from Ashraf-ul-nissa, and that having, therefore, lost his mortgagee's rights therein, his possession after the sale must be regarded as adverse to the mortgagors.
7. On these grounds the defendants contend that the whole of the equity of redemption became vested in the mortgagees, and that there was, therefore, nothing left to redeem. The plaintiffs in reply state that if Ashraf-ul-nissa had any title to convey, she could at the outside only convey her interest as an heir of her husband. Therefore, even on the assumption that she had a daughter who survived Mahdi Ali, she was not entitled to sell what she professed to sell, but only 1/16, which was her share, and 7/32, her daughter's, which' she inherited, their joint shares being 9/32 As to the 10 biswas sold by auction, the plaintiffs' position is that the village Lohari was not comprised in the property which was sold by auction on the 20th of March 1854, but, assuming that it was, only the share of Umda Begam was sold, which would be 1/16, and that therefore the plaintiffs are entitled to the redemption of all but 1/3 1/2. These were in substance the pleadings in the Court below, and it was upon these lines that the case was argued at the hearing of the appeal before us.
8. It will be seen that upon these pleadings the principal points for determination in this appeal are:
(1) Had Ashraf-ul-nissa a daughter living when her husband Mahdi Ali died?
(2) If not, what is the effect of the transfer of the 27th of 'May 1853, by her to Baldeo Sahai?
(3) As to the remaining 10 biswas, were they actually sold and purchased by Sheo Lal or not?
9. As to point (1) the onus is on the defendants.
10. [After discussing the evidence the judgment proceeded.]
11. Be that as it may, we have, as we have shown above, satisfied ourselves that the evidence will not support the finding that Mahdi Ali had a daughter by Ashraf-ul-nissa who survived him. Upon the admission made at the hearing, a widow under Imamia Law, if she has no issue alive at her husband's death, does not inherit any immovable property from her husband. We find that Syed Ameer Ali in his Muhammadan Law (2nd edition), Vol. II, page 118, lays down as follows: 'Para. 78--The husband takes a share in all kinds of property left by his deceased wife, and so does the widow when she has a child born of her womb or child's child. But when she has no child, or when a child was born to her, but died before the decease of her husband, then she is entitled to a fourth share in the personal estate only, including household effects, trees, buildings, etc.: she takes no interest in the landed property. When there are several widows, they take the fourth of the personal estate equally. But when the widow has children, she takes 1/8th of both personal and real property. If the children, however, be not of her womb, she is not entitled to 1/8th of the real estate.'
12. But it has been contended for the respondents, that it is immaterial whether Ashraf-ul-nissa had a daughter or not; that as she was in possession of half of Lohari in lieu of her dower, she could in that right convey a good title by the sale-deed of the 27th May 1853. This is the position which was definitely taken up by the counsel for the respondents at the hearing before us, and this is the interpretation which he asks us to put on para. 7 of the written statement--(Vide paper book, page 10). In support of his argument he again referred us to the sale-deed of 27th May 1853, to be found at page 31R. In the sale-deed Syed Inayat Husain, Mukhtiar of Musammat Ashraf-ul-nissa, set forth as follows:
13. 'My client,' i. e. Ashraf-ul-nissa, 'remained the heir of half the estate of the deceased in lieu of the dower debt,' and goes on to say that as her husband died heavily involved and she had to satisfy the decrees against his esbate, she makes an absolute sale of the 10 biswas share, including the mortgaged property as well as property which was not mortgaged, owned by her and situate in Lohari, to Baldeo Sahai, son of Sheo Lal, for Rs. 75,000. Assuming that Musammat Ashraf-ul-nissa had a claim against her husband's estate for unpaid dower and that in this right she considered herself entitled to deal with 10 biswas of mauze Lohari and that she transferred whatever right she had under the sale-deed to Baldeo Sahai, the question is--what is the legal effect of this transfer?
14. The appellants at once answer this by referring us to Mussumat Bebee Bachun v. Sheikh Hamid Hossien (1871) 14 Moo, I.A., 377, in winch case a Muhammadan widow, whose husband died without issue, had been pub in possession of her husband's estate by the Collector's Court as a co-heir and for her deferred dower, and the question arose as to her position.
15. Their Lordships of the Privy Council at page 384 lay down the law as follows: 'But the appellant having obtained actual and lawful possession of the estates under a claim to hold them as heir, and for her dower, their Lordships are of opinion that she is entitled to retain that possession until her dower is satisfied, and the respondents cannot recover the possession of their shares unless that satisfaction has taken place.' 'It is not necessary to say, whether this right of the widow in possession is a lien in the strict sense of the term, though no doubt the right is so stated in the judgment of the High Court in the case of Ahmed Mossein v. Khodeja (1868) 10 W.R., 369. Whatever the right may be called, it appears to be founded on the power of the widow, as a creditor for her dower, to hold the property of her husband of which she has lawfully, and without force or fraud, obtained possession, until her debt is satisfied, with the liability to account to those entitled to the property subject to the claims for the profits received.'
16. It will be seen that this is a much stronger case than the one before us. The lady was in actual and lawful possession (a status to which Musammat Ashraf-ul-nissa, it is admitted, never attained, possession having remained all along with the mortgagees), and yet the utmost right assigned to her is that of a creditor to hold certain property until her debt is satisfied, with the liability to account to those entitled to the property. Such a right could never be transferable. It is nothing more than an interest in property restricted in its enjoyment to the owner personally, and the transfer of any such right is prohibited by Section 6, Clause (d) of the Transfer of Property Act, No. IV of 1882.
17. Furthermore, we have held in this Court that such rights are neither inheritable nor transferable--see the decision in Hadi Ali v. Akbar Ali (1898) I.L.R., 20 All., 262.
18. The next argument that was addressed to us by the respondent was directed to showing that Baldeo Sahai had acquired a title by adverse possession.
19. [The discussion of the evidence on this point is omitted.]
20. In short we find that the separation between father and son was one merely of convenience, and that the family remained to all intents and purposes a joint family.
21. This finding at which we have arrived disposes of the whole argument as to Baldeo Sahai's having acquired a title by adverse possession. When Baldeo Sahai's name was entered in 1863 as owner, he came to the property as no independent stranger, but as a mortgagee.
22. This brings us to the question: Can a mortgagee by any act of his own render his possession adverse to the mortgagor during the continuance of the mortgage? And our answer is in the negative. The ruling in Khiatrajmal v. Daim (1904) I.L.R., 32 Calc., 296, at p. 312 seems to us conclusive on the point. The following are the remarks which support this view:
Their Lordships are satisfied that possession has been that of the mortgagees throughout, and the question at issue is exclusively one between mortgagor and mortgagee. As between them neither exclusive possession by the mortgagee for any length of time short of the statutory period of 60 years, nor any acquiescence by the mortgagor not amounting to a release of the equity of redemption, will be a bar of defence to a suit for redemption, if the parties are otherwise entitled to redeem.
23. We have now only to consider the third principal point in this case, viz., as to the remaining 10 biswas--were they actually sold and purchased by Sheo Lal or not? The case for the appellant is that they were not sold, but only the rights of Musammat Umda therein were sold. Our answer to this question will depend upon the view we take of the documentary evidence at pages 20, 21 and 22-A. On a perusal of this evidence we agree with the lower Court that it proves that the remaining 10 biswas of Lohari were actually sold and purchased by Sheo Lal at the auction sale of the 30th of March 1854, and that he has been in possession ever since. It is argued that such sale would be ineffectual as against the daughters of Musammat Umda Begam, because the decrees which had been obtained, and which are to be found at page 20-A, were invalid as against them, they not having been properly represented in those suits; that an Imamia mother cannot, under any circumstances, be the lawful guardian of her minor children, and a passage in Baillie's Muhammadan Law, Imamia, page 232, was relied on. It was also urged that it is doubtful whether at the time when the decrees were obtained a Civil Court in these Provinces had the power of appointing a guardian ad litem, but that in any case, even if it is assumed that the minors were properly represented in those suits by their mother that representation cannot be held to extend to the sale proceedings. We think that we ought to presume that Musammat Umda was appointed by the Court to act In those suits as guardian of her minor children, and we also think that the power to appoint a guardian ad litem is inherent in every court of civil jurisdiction. The gale proceedings were a continuation of the suit which had been brought, and the decrees which had been obtained, against Musammat Umda in her own right and as guardian of her infant daughters. The property actually sold, namely, the 10 biswas, was not her share alone, but was the joint shares of the mother and the minors, in other words, of the judgment-debtors; Sheo Lal paid full consideration, and his good faith has not in any way been impugned. He has been in possession for over fifty years. We decide the third point in favour of the respondents. On the result the plaintiffs' appeal will be allowed so far as the 10 biswas purchased by Baldeo Sahai are concerned; but as to the remaining 10 biswas their appeal will be dismissed. Costs will be in proportion to the success and failure of this appeal. We accordingly set aside the decree of the Court below so far as it dismissed the plaintiffs' claim to be allowed to redeem the 10 biswas of Lohari which were sold to Baldeo Sahai and remand the case to that Court with directions to readmit the suit under its original number in the register and dispose of it on the merits in accordance with what we have above set out.