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Ahmad Zaman Khan Vs. Baldeo Das and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1933All228
AppellantAhmad Zaman Khan
RespondentBaldeo Das and anr.
Cases ReferredSurat Singh v. Utnrao Singh
Excerpt:
- - the possession of huseni jan and bani bibi was by virtue of redemption perfectly lawful and of right as mortgagees and therefore not adverse to their coheirs who had a right to possession only on redemption of their share of the mortgaged property......what belonged to his father. muniruddin died leaving his son hasanuddin who inherited his father's share. hasanuddin died in 1909 without leaving any widow or issue. the plaintiff was the nearest residuary heir of hasanuddin. it follows that hasanuddin's rights in imamuddin's half of the house devolved upon the plaintiff on the death of hasanuddin. it has, of course, to be considered whether such right was subsequently lost by adverse possession of huseni jan and bani bibi, or otherwise. the extent of the interest which eventually devolved upon the plaintiff in respect of imamuddin's half of the house has also to be determined. it has been already mentioned that at least imamuddin's half of the house was in possession of mt. narain dei as mortgagee in 1886. it is not disputed before us.....
Judgment:

Niamattulah, J.

1. On the issues remitted by our order, dated 18th March 1930, the learned District Judge, has found that the plaintiff did not acquire any right in that half of the house No. 4912 which originally belonged to Imamuddin. He thought no finding was necessary on the question of adverse possession. We have considered the grounds on which the finding of the learned Judge proceeds and heard the learned Counsel at great length. We are unable to accept the finding of the learned District Judge in its entirety. He has found that the half share of Imamuddin in the aforesaid house was in possession of Mt. Narain Dei, as heiress to one Salig Ram, who was a usufructuary mortgagee of the house. The learned Counsel for the parties have not been able to give us the date and particulars of this mortgage. The learned advocate for the contesting respondent has urged that besides the usufructuary mortgage there were certain simple mortgages in favour of Salig Ram in respect of Imamuddin's share of the house in dispute. The learned Judge has also found that Mt. Narain Dei, instituted a suit in 1880 for enforcement of a certain mortgage in respect of the portion of the house in dispute and obtained a decree, that Huseni Jan and Bani Bibi, two of several heirs of Imamuddin, paid Rs. 500, in full satisfaction of the claim of the mortgagee and obtained possession of the mortgaged property. On evidence the learned Judge has found further that Huseni Jan and Bani Bibi remained in possession from 1886 to 1907 when they made a gift of half of the house in dispute to Mashihuzzaman, the second defendant, the judgment-debtor of the contesting respondent, and that the latter has remained in possession ever since. On these facts the learned Judge is of opinion that the plaintiff acquired no right in Imamuddin's half of the house, though he concedes that a fraction of Imamuddin's interest should have devolved on the plaintiff through Hasanuddin the grandson of Imamuddin.

2. It is not disputed before us that Imamuddin died leaving a son Muniruddin, two daughters and a widow. Muniruddin did inherit a part of what belonged to his father. Muniruddin died leaving his son Hasanuddin who inherited his father's share. Hasanuddin died in 1909 without leaving any widow or issue. The plaintiff was the nearest residuary heir of Hasanuddin. It follows that Hasanuddin's rights in Imamuddin's half of the house devolved upon the plaintiff on the death of Hasanuddin. It has, of course, to be considered whether such right was subsequently lost by adverse possession of Huseni Jan and Bani Bibi, or otherwise. The extent of the interest which eventually devolved upon the plaintiff in respect of Imamuddin's half of the house has also to be determined. It has been already mentioned that at least Imamuddin's half of the house was in possession of Mt. Narain Dei as mortgagee in 1886. It is not disputed before us that the mortgage under which Mt. Narain Dei, was in possession was binding on all the heirs of Imamuddin. Muniruddin and after him Hasanuddin could therefore be entitled to no more than a fraction of the equity of redemption. The plaintiff attempted to make out that the extent of Hasanuddin's share was 1365 sihams out of 4608. This was not controverted either before the lower appellate Court or in second appeal before us. We accept the extent of Hasanuddin's share as 1365/4608 of the equity of redemption which belonged to all the heirs of Imamuddin.

3. By the deed of gift executed by Huseni Jan and Bani Bibi in favour of Masihuzzaman Khan, defendant 2, the right, title and interest of the doners was conveyed to the donee. The right to possession which the donors had acquired by virtue of redemption must be deemed to have been likewise conveyed to the done. Neither the plaintiff nor any of his predecessors-in-interest had any right to possession till he redeemed his interest in the property held by the mortgagee and thereafter by two of the co-heirs who had redeemed the whole Taking the view which has prevailed in this Court since the decision of Ashfaq Ali v. Wazir Ali (1891)14 All 1, the position of a redeeming co-mortgagor is that of a mortgagee so as to make Article 148. Limitation Act, applicable to a suit for possession by the other co-mortgagors. The possession of Huseni Jan and Bani Bibi was by virtue of redemption perfectly lawful and of right as mortgagees and therefore not adverse to their coheirs who had a right to possession only on redemption of their share of the mortgaged property. The donee Masihuzzaman Khan's possession was likewise that of a mortgagee and not adverse. The plaintiff has the right to redeem what he inherited from Hasanuddin at any time within 60 years from the date of the original mortgage under which Salig Ram held possession of the house in dispute: Surat Singh v. Utnrao Singh AIR 1922 All 410.

4. As already stated the date of the mortgage cannot be ascertained, nor are we in a position to say if the plaintiff's suit now would be in time. We leave this question open for more appropriate proceedings if the plaintiff is advised to take. It is enough for the purposes of this appeal to declare that, subject to any defence of limitation which may be successfully set up against the plaintiff's right to redeem he is entitled to 1365/4608 sihams of half of the house in dispute on payment of such sum as may be found due in respect of the aforesaid share. Another fractional share has been claimed by the plaintiff on the ground that one Nazir Khan, another heir of Imamuddin, had instituted a suit for partition of the property left by Imamuddin and omitted to claim a share in the house now in dispute and that in a subsequent suit brought by him his claim was held to be barred by Order 2, Rule 2, Civil P.C. It is contended on behalf of the plaintiff that he was a party to the two suits and that a fraction of Nazir Khan's interest was acquired by him on his claim being held barred by Order 2, Rule 2. Civil P.C. We are unable to give effect to this argument. Order 2, Rule 2 Civil P.C., when it operates as a bar, merely deprives the claimant of his remedy by suit founded on the same cause of action. It cannot have the effect of vesting any right in any of the defendants.

5. Moreover it has been found that the share of Imamuddin in the house in dispute was in the possession of Huseni Jan and Bani Bibi and of Masihuzzaman after 1907. The plaintiff was also a party to Nazir Khan's suit which was held to be barred by Order 2, Rule 2, Civil P.C., but was not in possession at any time. The plaintiff can therefore be held to be the owner of no more than what belonged to him, or what he acquired from others by transfer or by adverse possession. We hold that the plaintiff acquired no interest in the house in consequence of Nazir Khan's claim being held to be barred by Order 2, Rule 2, Civil P.C. The result of the findings arrived at by us in the order of remand dated 18th March 1930, and those stated above is that S. A. No. 1385 of 1927 is dismissed with costs and the decree in S.A. No. 1779 of 1927 is modified so as to grant to the plaintiff a declaration in terms already indicated. The parties shall pay and receive half costs incurred in both the lower Courts.


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