1. This is a plaintiffs' appeal from a decree and order of the Additional Subordinate Judge of Meerut, modifying the decision of the trial Court and dismissing the plaintiffs' suit. The facts have been given sufficiently fully in the judgments of the Courts below. It is only necessary to say here that the plaintiffs-appellants have by inheritance or transfer acquired the rights in 12/24 sihams in the property in dispute, and that they claim possession over this share of the whole of the property in dispute on the ground that the contesting defendant-respondent, Mt. Nabiunnissa, had sold certain property to the contesting defendant-respondents Nos. 2 and 3, Pitam Singh and Jai Karan Singh. The defendant Mt. Nabiunnissa pleaded that on the death of her mother who had originally owned the property there bad been an agreement between the heirs that she (Mt. Nabiunnissa) should remain in possession of the property on condition that she became liable to pay all the debts due from the deceased. This agreement has been found not to be proved, but the trial Court found that the plaintiff was nevertheless liable to pay a certain proportion of the debts due from the deceased which bad been liquidated by Mt. Nabiunnissa. The lower appellate Court, however has found that as Mt. Nabiunnissa in executing the sale deeds in favour of the defendants Nos. 2 and 3 had not sold more than her share of the joint property, the sale deeds could not be avoided by the plaintiff-appellants and the suit must therefore be dismissed. In the course of the appeal the learned Subordinate Judge further found that a sum of Rs. 1,000 which was said to have been paid by Mt. Nabiunnissa in liquidation of her mother's debts had not been proved to have been paid, nor indeed had it been proved that the debts existed.
2. The decision of the lower appellate Court is based on the proposition that one of several heirs of a deceased Mahomed an is perfectly entitled to alienate his share of the property without getting it partitioned. What the learned Judge has failed to notice is that the property sold by Mt. Nabiunnissa to defendant, respondents Nos. 2 and 3 was not a share of the joint property. It was a plot of land specified as bigas 3 biswas 5 in khewat No. 2 numbered as arazi khasra 494. The plaintiff-appellants' suit, though it has not been very clearly expressed in the plaint, was that so long as the property was undivided they were the owners of 12/24 sihams of that property, that is to say, of every portion of that property and that Mt. Nabiunnissa in selecting a particular plot and selling the whole of it to defendants Nos. 2 and 3 had exceeded her rights. It is argued that if this plot were to be described as a proportion of the whole undivided property it would not amount to more that 4/24 sihams so that in selling it Mt. Nabiunnissa did not sell more than the whole of her share in the joint property, viz. 12/24 sihams but in fact very much less. The simple question that I have to decide is whether in these circumstances the plaintiff-appellants are entitled to a decree for possession of their share in the property in suit, including that portion of it which was transferred in 1920 and 1922 by Mt. Nabiunnissa to defendants Nos. 2 and 3, or to any other relief. It is not quite clear what the lower appellate Court meant by saying that the sale deed was not challenged by the plaintiffs in the plaint on the ground that it dealt with one specific plot, or in expressing the opinion that such a sale deed is only voidable at the opinion of a joint owner within six years of the transfer. The whole of the plaint shows that the plaintiffs claimed to be owners of 12 out of 24 sihams in the property which had been left by Mt. Wasiunnisa. They also claim to have been in joint possession with Mt. Nabiunnissa although the latter's name alone had been recorded in the revenue papers. Their cause of action was that Mt. Nabiunnissa had transferred part of the property and whether their grievance was that she had transferred more than her proper share or that she had transferred a specific part of the property which was not in her own exclusive ownership, it is quite clear that the plaintiffs' object was to dispel the cloud on their title to 12/24 sihams of the whole property which had arisen owing to the sale deeds of 1920 and 1922. It has not been clearly proved that the plaintiffs have been in joint possession of the whole of the property and they have therefore paid the court-fees necessary for a decree for possession. 'What is wanted, however, is a declaration that they are entitled to joint possession, and in the circumstances it appears to me that they ought to obtain such a decree. In the case of Jafri Begam v. Amir Mohammad Khan (1885) 7 All. 822, it was held that in somewhat similar circumstances a plaintiff could recover from the auction-purchaser his share in the property sold on condition that he paid a proportionate share of the ancestor's debt for which the decree (in execution of which the property had been sold) was passed.
3. As regards the question of the amount which is said to have been paid by Mt. Nabiunnissa in liquidation of her mother's debts, the trial Court found that she paid a sum of Rs. 1,800 and that the plaintiffs were liable to pay a proportionate amount viz. Rs. 853-14-0. The lower appellate Court has found that so far as Rs. 1,000 is concerned it has not been proved that the debt was due or that Mt. Nabiunnissa has liquidated it. There is, however no finding as regards the balance of rupees 800. Mr. Mohd. Husain, who appeared in this Court on behalf of Mt. Nabiunnissa, has argued that he is not bound by the findings of the lower appellate Court with regard to these debts at all, because the decree of the lower appellate Court was in his favour and these findings were therefore irrelevant. Mt. Nabiunnissa was however one of the parties to the appeal in the lower appellate Court where these questions as to the debts were agitated and decided, and so far as the findings of the lower appellate Court are findings of fact they must be held to be binding on Mt. Nabiunnissa.
4. I have already said that though there is a finding as regards Rs. 1,000 there is no finding as regards Rs. 800 of these debts. The reason for this is that it was admitted in the trial Court that the balance, viz. Rs. 800 was payable, and half of this amount must therefore be recovered from the plaintiff-appellants as a condition of their obtaining a decree.
5. I therefore allow this appeal to this extent with proportionate costs, set aside the decree and order of the lower appellate Court, and give the plaintiff-appellants a decree for joint possession over 12/24 sihams in the whole of the property left by Mt. Wasiunnissa, subject to the payment of Rs. 400 to Mt. Nabiunnissa. Mr. Upadhia has asked for leave to appeal under the Letters Patent, but this has been refused.