1. The facts which have given rise to this appeal are, briefly, as follows. One Sheikh Bakhshuy 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 1-8th in her own right as an heiress and of 7-8th 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 Bakhshu 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 Rosai. 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 Rosai and after him his representatives, defendants Nos. 1 to 4, have continued in possession as mortgagees; that the plaintiff 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 Nos. 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 Rosai and, after him, they had been in adverse possession as proprietors. They also pleaded in bar Article 134 of the Second Schedule of the Limitation Act, IX of 1908. We are not concerned with the other pleas raised in defence. 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 biswcs, 17 dhurs which she owned as a proprietor and the remaindar 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 pf the property in dispute had been transferred by the widow of Rosai, the vendee, by deed of gift, so far back as 25th of July 1899, 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. 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 so 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, in as much as he was of opinion that, having regard to the ruling reported as Muhammat Husain v. Bashiran 26 Ind. Cas. 109 : 12 A.L.J. 1141 a decision of this question was immaterial, inasmuchas 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.
3. 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 Mr. Iqbal Ahmad for the appellant and Mr. Mukhtar Ahmad for the respondent. 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 Sheikh 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 Rosai, etc.' Now, at first sight, and according to the ordinary rules 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 1/8th share as owner and her 7/8th share of which she was the possessor. So that, in any event, the plaintiff's suit must fail as to the 1/2 plus 1/6th that is 9/10th of the property in suit. 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 7/16th 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 26 Ind. Cas. 109 : 12 A.L.J. 1141. It is sufficient. so say that the ground on which the older cases were differentiated was that in the older cases the suit had been brought in the lifetime of the widow. The present case has, as is clear from the facts stated above, been brought during the lifetime of the widow and, therefore, strictly speaking, the case in Mohammad Husain v. Bashiran 26 Ind. Cas. 109 : 12 A.L.J. 1141, mentioned above, would not apply. It has been held in the case of Kummur-ocl-nissa Begum v. Mahomed Hussun 1 Agra H.C.R. 287 at p 290: 'At the same time we are satisfied that as the property in suit formed a portion of Umeda Begum's husband's estate, the whole of which was in her possession as security for her dowry the widow would have had the power to mortgage such hypothecated interest, and that during her lifetime 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 Baksh v. Allahdad Khan 6 Ind. Cas. 376 : 7 A.L.J. 567 at p.577 : 32 A. 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 Mr. Iqbal Ahmad that the sale of her possessory rights by Musammat Azima, unaccompained by a transfer of the dower-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. Let us examine this position from another standpoint. It is now settled law that adverse possession can be acquired over Azited 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 Rosai 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.
4. There is nothing in the present case to show that there was anything which tended to destory 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 the purchaser, Sheikh Rosai, could not be said to have been unaware as to the rights which he was purchasing. Article 134 of the Second Schedule of the Limitation Act would not, therefore, apply. This was so held in the case of Dirgpal Singh v. Kallu 30 Ind. Cas. 956 : 37 A. 660 : 13 A.L.J. 945. 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 plaintiff's suit must fail as regards 9/16th of the property in dispute. As to the remaining 7-16th 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. We, therefore, remit the following issue to the lower Appellate Court for trial,--What is the amount of the dower debt of Musammat Azima chargeable against the 7-16th share of the property transferred under the deed of the 7th February 1872? The parties are at liberty to produce such relevant evidence as they might think proper. The Court below is to send the evidence, along with its finding, at an early date. On receipt of the finding the usual ten days will be allowed for objection.