1. This appeal raises two points, viz., (1) whether the mortgage dated the 14th of April 1917 is binding on the plaintiff-respondent Ekram Ahmad, and (2) if not, whether the amount of share decreed to him is too large, and if so, what is the proper share which should have been decreed to him.
2. The facts are briefly these: The pedigree of the family to which the respondent belongs is given in the judgment of the learned Additional Subordinate Judge. One Karamat Ali owned a 16 annas share in the property in suit. That property descended to his son Hashmat Ali, as Hashmat All's mother who was the other heir, did not claim any interest. Hashmat Ali died two years after his father and then a question arose as to who should have the property. Hashmat Ali was survived by his cousin Mahmud Ali being a son of Lutf Ali, a brother of Karamat Ali, and also by Yakub Ali and Qadir Ali, sons of Ilahi Bakhsh, another brother of Karamat Ali. On the 2nd of February 1907 an agreement was arrived at between Mahmud Ali, Yaqub Ali and Quadir Ali on the one side and Mt. imtiaz Bibi, the mother of Hashmat Ali, on the other. It was agreed that Mt. Imtiaz Bibi should remain in possession of her son's property, that she should pay the debts due from the estate out of the income of the property and should spend the rest of the income as best as she liked, that she would not transfer any portion of the property without the consent of the other party to the document and that on her death the three persons constituting the other party would get the property. It was further provided that should any of the party of the three male persons die before the death of Mt. Imtiaz Bibi, his share would descend to his heirs.
3. On the 14th of April 1917, Mt. Imtiaz executed a usufructuary mortgage for the sum of Rs. 3,000 in favour of the appellant Beni Chand, Ekram Ahmad, the respondent, is one of the sons of Yaqub Ali, He said that he did not consent to any transfer by Mt. Imtias and that the transfer was not binding on him. Mt. Imtiaz is dead and hence he claimed to recover a third share in the property on the ground that he was the sole heir of Yaqub Ali. Yaqub Ali had several Children besides Ekram Ahmad, viz., Khadim Ahmad, Ghulam Ahmad, Mt. Kulsuman and Mt. Mahmuda. It was part of Ekram Ahmad's case that Khadim. Ahmad was an illegitimate child and therefore, did not inherit and that the rest of the children of Yaqub Ali had relinquished their interest in the property in favour of Ekram Ahmad. The defence was that the mortgage of the 14th of April 1917 was executed to pay off a decree which was obtained by one Jagannath on foot of a mortgage executed in his favour on the 6th September 1915 by Mt. Imtiaz with the consent of Mahmud Ali, son of Lutf Ali, and also with the consent of the plaintiff, his brothers and of the sons of Qadir Ali. It was found that the plaintiff did not give his consent and that the mortgage of the 14th of April 1917 was not binding on him. The plaintiff sold 4 annas 3 pies out of his share pending the suit, in favour of certain persons who were made defendants in the suit. The plaintiff's share was found to be 5 annas 4 pies and deducting 4 annas 3pies out of the same a decree was made in his favour for 1 anna 1 pie share.
4. There was a connected suit which had been brought by Khadim Ahmad, already mentioned, a supposed brother of Ekram Ahmad, against the latter. In that suit the question was what was the share of Khadim Ahmad, if he was a legitimate child of Yaqub Ali. That litigation came up before us as Second Appeal No. 556 of 1924 and by our judgment of this date we held that Khadim Ahmad was entitled to get an 8 pies share in the property of his father, from Ekram Ahmad. Although the judgment in that second appeal may be no evidence in this particular case, it is conceded that the same evidence as was relied upon in that case might be read as evidence in this case. If that be so, the result would follow that Ekram Ahmad's original share would be reduced by 8 pies. The result would be that in case of his entire success, Ekram Ahmad would get a decree for a 5 pie share only, the share of 1 anna 1 pie decreed to him, having been reduced by the amount of 8 pies. This disposes of the second point. Now we come to the first point concerning the validity of the mortgage. It is a fact that the mortgage of the 14th of April 1917 was executed to pay off a decree for Rs. 3,000 odd obtained by one Jagannath on foot of his mortgage dated the 6th of September 1915. The mortgagee Beni Chand who is the appellant before us paid a sum of Rs. 3,059 odd to satisfy that decree, although the mortgage in his favour is for Rs. 3,000 only. The mortgage in favour of Beni Chand is not attested by Mahmud Ali, but he identified the executant Mt. Imtiaz before the sub-registrar at the time of registration of the deed. It is contended from this fact that Mahmud Ali was a consenting party to the transfer in favour of Beni Chand. Further, it is pointed out that the mortgage in favour of Jagannath had been attested by Mahmud Ali and by most of the male descendants of Yaqub Ali and Qadir Ali. On foot of these facts it is argued that the transfer in favour of Beni Chand is a valid one.
5. We shall take up the mortgage in favour of Jagannath first. If that mortgage be valid and within the competence of Imtiaz Bibi, we shall see whether the validity of that mortgage gives any validity to the mortgage in favour of Beni Chand. The argument on behalf of the respondent is this. By the agreement dated the 2nd of February 1907, consent for a valid transfer was to be obtained from all the three male executants of the deed. It being the fact that Qadir Ali and Yaqub Ali died before the 6th of September 1915, the respondent contends, it was necessary to obtain the consent of the heirs of Qadir Ali and Yaqub Ali. We have already stated that two of the sons of Yaqub Ali and Qadir Ali did not give their consent. It is, therefore, urged that the mortgage in favour of Jagannath did not comply with the condition laid down in the deed of agreement of the 2nd of February 1907 and therefore, it is not binding on the respondent Ekram Ahmad.
6. On the other hand, the contention on behalf of the appellant is this. The agreement of the 2nd of February 1907 did not provide for any consent being given by the heirs of any of the deceased executants. It provided for consent being given by the male executants alone. Two of these executants were dead and only one was alive, viz., Mahmud Ali. As Mahmud Ali give his consent, that was sufficient and it amounted to 'substantial compliance' with the condition within the meaning of Section 26 of the Transfer of Property Act. To this it has been replied on behalf of the respondent that where out of three persons, whose consent alone would validate a transfer, only one person's consent is taken it cannot be said that there was a substantial compliance' with the condition. In my opinion the contention for the respondent is sound. There has been no substantial compliance' with the condition laid down in the agreement. There can be no doubt that if all the three male executants had died, Mt. Imtiaz could not transfer the property at all so as to bind their heirs. The mere fact that only one of the three male executants was alive would not justify the lady Imtiaz to make a valid transfer with his consent alone, unless we can say that such a transfer was a 'substantial compliance' with the terms of the agreement. There must be some value to be attached to the word 'substantial.' If, say out of eight persons, whose consent is necessary, six be dead and only two be alive and if the consent of those two alone be taken can it be said that there has been a 'substantial compliance' with the condition?
7. There is another word in the English language which is 'partial.' I do not see that the words 'partial' and 'substantial' can have the same meaning. If it be the case therefore, that on the death of all the three male executants the lady would be deprived entirely of her power of transfer, the mere fact that only one of the three persons was alive and consented would not, in my opinion, improve matters. Broadly speaking, till the majority or at least one-half of the people, whose consent is necessary, give it, it cannot be said that there has been a substantial' compliance with the condition. The compliance would be partial only. Some support to this view may be afforded by the fact that in the illustrations to Section 26 of the Transfer of Property Act (and the allied rule of law) and Section 115 of the Succession Act, the consent which has been regarded as 'substantial' was all given by the majority of the people whose consent was necessary. In this view of the law, it is not necessary for me to express any opinion as to whether the consent of all the heirs of the deceased executants Qadir Ali and Yaqub Ali would have improved matters. Even if such consent could improve matters it is clear that two of the sons of Yaqub Ali and Qadir Ali have not consented, although they are alive, and it must follow that there has been on compliance with the terms of the agreement. The same remarks would apply to the transfer in favour of Beni Chand himself, even if we were in a position to say that because of the validity of the transfer in favour of Jagannath, the transfer made to pay off Jagannath's debt was valid. As already stated, the transfer in favour of the appellant was consented to by only one of the three male executants to the agreement. I hold that the mortgage in favour of the appellant is not binding on the respondent Ekram Ahmed. The result would be that I would allow the appeal and modify the decree of the Court below by reducing the decree in favour of the respondent to the extent of 8 pies, thus reducing the decree in his favour to 5 pies share only.
8. The facts have been fully sat out in the judgment of my brother. Beni Chand had obtained on the 14th April 1917 a usufructuary mortgage from Mt. Imtiazan. Mt. Imitiazan's right to mortgage the property depended on whether the transfer was made in compliance with the conditions of an agreement entered into on the 2nd of February 1907 between her and three nephews of her husband Karamat Ali. These three nephews were Mahmud Ali, Qadir Ali and Yaqub Ali. Briefly, that agreement provided:
(1) That Mt. Imtiazan should remain in possession of the entire property of her deceased husband Karamat Ali;
(2) that she was to pay debts out of the income as far as possible;
(3) that she was not to transfer the property without the consent of the three nephews;
(4) that on her death the remaining three nephews would take one-third each of the property; and
(5) if either of the three nephews predeceased the lady, the heirs of that nephew would take his one-third.
9. The deed was silent on the questions whether in the event of a nephew predeceasing the aunt the consent of his heirs to a transfer was necessary or whether the consent of the surviving nephews was sufficient. These are the questions we have to decide.
10. The usufructuary mortgage in favour of the defendant Beni Chand was executed in part to discharge a decree which had been obtained by one Jagannath on a usufructuary mortgage dated the 6th of September 1915, executed by Mt. Imtiazan, Prior to the execution of these mortgages two of the nephews Qadir Ali and Yaqub Ali had died. The mortgage in favour of Jagannath was attested by the surviving nephew Mahmud Ali, by three out of the four sons of Qadir Ali (the fourth son Abdul Khaliq did not sign and he is respondent to the connected Second Appeal No. 387 of 1924), and also by two out of the three sons of Yaqub AH, that is, by Khadim Ahmad and Ghulam Ahmad, but it was not signed by Ekram Ahmad, the plaintiff-respondent in the present appeal.
11. The mortgage in favour of Beni Chand was not signed either by Mahmud Ali or by any of the sons of Qadir Ali and Yaqub Ali, but Mahmud Ali identified Mt. Imtiazan, the executant.
12. Beni Chand having got possession, Ekram Ahmad, the son of Yaqub Ali, sued Beni Chand claiming the 5 annas 4 pies share, the whole share of Yaqub Ali, on the allegations that his brothers and sisters had transferred their interests to him and that the two mortgages were not binding on him as the consent required by the agreement made by Imtiazan had not been, obtained.
13. The plaintiff's contention as regards the question of consent was two fold. He contended:
(1) That in the event of his father Yaqub Ali predeceasing Mt. Imtiazan as he, in fact, did, and the property having descended to the heirs of Yaqub Ali, the consent of Yaqub Ali's heirs was necessary before Mt. Imtiazan could execute a transfer affecting their interests and that the consent of the plaintiff Ekram Ahmad not having been obtained, at any rate, his share and any share he might have acquired was not bound.
(2) The plaintiff contended that even if the heirs of a deceased nephew had no right to demand that their consent should be obtained, at least, it was necessary that the consent of the three nephews should have been obtained, and that, as owing to the death of two out of the three nephews their consent had not been possible even if they would have given it if alive, there was no consent within the meaning of the agreement executed by Mt. Imtiazan
14. As to the first contention, it was urged that it was only reasonable and in accordance with the spirit of the agreement that if the consent of the father was necessary for the protection of the property while he was alive, it should similarly be required in the case of the sons who had inherited that property; in other words, that it was only reasonable to construe the agreement as giving the sons the same protection as had been stipulated for in the case of the father. This argument was supported by pointing to the fact that the agreement of 1907 had apparently been so understood by the majority of the persons alive at the time of the execution of the mortgage in favour of Jagannath. If it had not been so understood there would not have been found on that mortgage-deed the signatures of so many of the descendants of the two deceased nephews There is to my mind considerable force in this argument.
15. I may note here that it found favour with both the lower Courts which decreed the plaintiff's claim and the similar claim in Second Appeal No. 387 of 1924 on the ground that the signatures of Ekram Ahmad and Abdul Khaliq had not been obtained without entering into the question whether by the signatures of most of the heirs there had bean substantial compliance with the condition. But I am satisfied that the correct view is that to which expression is given in the judgment of my brother. The three nephews had complete power to dispose of their property. They thought it desirable to protect their own personal interests by stipulating for their consent being obtained. They thought it desirable to provide that their property should descend to their children. If they did not think it necessary to stipulate that the consent of those children should be obtained before any transfer was made, it is a reasonable conclusion that they were not sufficiently interested in this aspect of the case to make such a stipulation. They may well have considered that the consent of the surviving brother or brothers which in their own interests would not be recklessly given was a sufficient safeguard of the interests of their own children. In any case they did not make it any stipulation requiring the consent of their heirs and as they had power to deal with the property as they chose, I agree with my brother that we cannot read into that document a stipulation which the father did not in fact enter in it. On this point, therefore, I concur in holding against the plaintiff.
16. As to his second contention that the document stipulated for the consent of the three nephews being obtained and that in fact the consent of two of them, Qadir Ali and Yaqub Ali was not obtained and that, therefore, the transfers were void, one thing is clear It is admitted that the consent of the two other nephews was not obtained because they were dead and it has not been seriously contended that there was anything in the transfers executed by Mt. Imtiazan which was improper or which would have led to the refusal of consent by the two nephews or either of them if they or he had been alive. This point is, I think, of importance in considering the main question which we have to deal with here. That main question is whether or no there was substantial compliance with the conditions in the agreement, it being suggested that the case is analogous to that provided for in Section 26 of the Transfer of Property Act.
17. On what principle is it to be determined whether there was substantial compliance? Illustration (a), Section 26 says that where the consent of C, D and E is required and E has died, the consent of C and D is to be deemed sufficient. The illustrations to Section 115 of the Succession Act are very similar. These are merely illustrations and I do not think there is any suggestion underlying them that if both D and E had died the consent of C alone would necessarily be insufficient. In other words I do not think that the test of substantial compliance can be the mere existence one way or the other of a numerical majority. It is only necessary to give one illustration of this. Where the consent of C, D and E is necessary and D and E have died and C has in fact succeeded to their property, could it be suggested that the consent of C was not a substantial compliance with the conditions which had only been inserted for the protection of the property of all the three? As regards the property of D and E, C would only be an heir, and it follows from our finding on the first question in which I concur with my brother that C's consent or absence of his consent in his capacity as heir of Dand E is immaterial. If, then in the case that I have stated, it would be unreasonable to hold that the consent of C alone did not constitute substantial compliance the mere existence of a numerical majority one way or the other fails to furnish a satisfactory test; at any rate, it is not a principle applicable in all cases.
18. Is there, then, any other principle generally applicable to test whether there has been substantial compliance? I thick there is. It must, I think, be conceded that the best judges of whether the compliance was substantial would be the deceased persons, if in any way their view could be ascertained. To ascertain that view directly is obviously impossible. BUT it is possible to form, upon all the known circumstances of the case as existing at the time the condition was made, a reasonable opinion as to whether the deceased persons would have been likely to agree that the consent of a survivor should be accepted as sufficient if they had foreseen the circumstances in which the sufficiency of his consent might be in question.
19. The test is sufficiently simple in practice. What answer must we give to the question in this case? Would Yaqub Ali have been quite content to answer in the affirmative if he had been asked at the time that he was making the condition: 'In the event of your predeceasing your aunt, are you content that the consent of your surviving brother or brothers should be sufficient to enable her to deal with the property which at her death would otherwise descend to your children?' I think we have clear evidence that Yaqub Ali would have answered in the affirmative. That Yaqub Ali would have so answered is, I think, a reasonable conclusion from the circumstances existing at the time the condition was made and to one of which I have referred in dealing with the first question. Yaqub Ali contemplated the possibility of his death prior to the widow as is evidenced by the provisions for the children inheriting, yet he did not think it necessary to provide for any special consent being required in place of his own when it could no longer be given. Is it not reasonable, then, to assume that he was content in the knowledge that the consent of his surviving brothers or brother would still be necessary?
20. The arrangement made by the deed was a perfectly natural and proper arrangement by which the old lady was provided for during her life subject to very reasonable conditions. It has not been contended that there was anything in the transfer made by the lady which would have led to the refusal of his consent by the plaintiff's father if he had been alive. It has not been contended before us that there is any evidence that Yaqub Ali had any reasons whatever to distrust either of his brothers and that he would not therefore have been likely to consider their consent sufficient in the event of his own earlier death. He may well have considered the consent of his surviving brother or brothers a sufficient safeguard.
21. It was pressed upon us that if we were to hold that the absence of consent of the two deceased nephews did not invalidate a transfer made by the aunt a logical conclusion would be that the absence of consent of the third nephew also if he had been dead would not invalidate a transfer and that such a result would give the lady unfettered power to transfer. But that is not so. To hold that Yaqub Ali would, as evidenced by the circumstances, have been content with the security afforded by the necessity for the consent of even one surviving brother does not compel or even logically suggest the conclusion that he would have been satisfied that no consent at all should be requisite. I hold therefore that it is a reasonable and proper conclusion from the circumstances that Yaqub Ali would have considered the requirement by his surviving brothers or brother sufficient, and I hold that there was substantial compliance with the condition requiring consent. I may add that I am satisfied further that this conclusion is also in accordance with the equities of the case, though, of course, they cannot affect the purely legal question. There is no suggestion that either Jagannath or Beni Chand took advantage of the widow or of those who were interested in the property after her death, nor is there any evidence of collusion to defeat the interests of plaintiff. There is no suggestion of any unfair dealing, and that there was no such unfair dealing is further evidenced by the fact that no less than six out of the eight male members interested in this property were signatories of the transaction in favour of Jagannath and the surviving nephew was also a witness identifying the executant in the case of the later mortgage by which the decree on the first was paid off. The plaint makes no pretence of explaining how Ekram Ahmad would account for his alleged ignorance of transactions which were spread over several years. If, like his cousin, Abdul Khaliq, he was away on military service, that is only one more indication of the good faith attending the transactions, for it would explain why the parties to the mortgage were unable to obtain his signature when obtaining the signatures of all the other male heirs. Lastly it is noticeable that it was after the mortgages in question that the plaintiff secured a transfer to himself of the shares of his sisters and a second brother and alleged a third brother to be illegitimate (found by the lower Courts to be legitimate), and this would suggest that he was making the most of a chance to upset a bona fide transaction by taking advantage of the absence of his signature. For these reasons I would hold that the consent of the heirs was not necessary, and that the consent of the surviving nephew, Mahmud Ali, was substantial compliance with the condition in the agreement. I would therefore allow the appeal.
22. As my brother would allow the appeal to the extent of 8 pies only and I would allow it to the full extent of dismissing the plaintiff's suit in its entirety, there is concurrence between us that the appeal should be allowed as to the 8 pies. As regards the remaining 5 pies, there is a difference of opinion between us and as my brother would to the extent of this 5 pies maintain the decree of the lower Courts though on different grounds from those on which the lower Courts proceeded, my judgment, in so far as it would allow the appeal as to the 5 pies also, will form no part of the order of the Court.
23. The order of the Court is that the appeal is allowed to this extent that the decree of the Court below be modified by reducing the decree in favour of the respondent; to the extent of 8 pies and maintaining the decree in his favour as to the remaining 5 pies. The parties will receive and pay costs in proportion to their respective failure and success.