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Zafar Ahsan and ors. Vs. Zubaida Khatun and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All604; 121Ind.Cas.398
AppellantZafar Ahsan and ors.
RespondentZubaida Khatun and ors.
Cases ReferredHamida Bibi v. Ahmad Husain
Excerpt:
- - the learned subordinate judge, in our opinion, has given good grounds for rejecting the contention of the appellants. an examination of the evidence of the witnesses on whom the appellants rely clearly shows that they are palpable liars and have come forward to give evidence to support the appellants' case for some ulterior motive. reference has been made by the learned subordinate judge to two cases which in our opinion are clearly distinguishable and do not lay down what the learned subordinate judge says they do. the mortgage must be deemed to be a good mortgage to the extent of rs.1. this is an appeal by four defendants in a suit for sale on a mortgage executed by one mazhar ahsan. mazhar ahsan, the mortgagor, married three ladies and appellant 1 is the son of mazhar ahsan by the eldest wife. the other three defendants are the children by the second wife and the plaintiff is mazhar ahsan's daughter by the third wife. the plaintiff's mother died in the year 1911. in order to pay off the dower debt due by mazhar ahsan to the mother of the plaintiff the mortgage-deed in suit dated 17th april 1914, was executed by mazhar ahsan in favour of the plaintiff. the deed, ex. 1 at p. 45, sets out the consideration to be rs. 3,500 which mazhar ahsan states was due by him to zubaida khatun, the mortgagee, which she had inherited partly from mt. hasan bano her mother and partly.....
Judgment:

1. This is an appeal by four defendants in a suit for sale on a mortgage executed by one Mazhar Ahsan. Mazhar Ahsan, the mortgagor, married three ladies and appellant 1 is the son of Mazhar Ahsan by the eldest wife. The other three defendants are the children by the second wife and the plaintiff is Mazhar Ahsan's daughter by the third wife. The plaintiff's mother died in the year 1911. In order to pay off the dower debt due by Mazhar Ahsan to the mother of the plaintiff the mortgage-deed in suit dated 17th April 1914, was executed by Mazhar Ahsan in favour of the plaintiff. The deed, Ex. 1 at p. 45, sets out the consideration to be Rs. 3,500 which Mazhar Ahsan states was due by him to Zubaida Khatun, the mortgagee, which she had inherited partly from Mt. Hasan Bano her mother and partly from Mt. Zahida Khatun, the sister of the mortgagee. Mt. Zahida Khatun died after the death of her mother and before the execution of the mortgage-deed. The defence to the suit was every conceivable point that could be taken in the case as will be apparent from the points argued by the learned advocate for the appellant before us.

2. The learned Subordinate Judge granted a decree for sale of the mortgaged property except a one-eleventh share which the plaintiff had inherited from the estate of Mazhar Ahsan who had died before the institution of the suit. As we have already stated the appellants are four in number. Appellant 1 has, in addition to the grounds taken by the other appellants, urged that the terms of an award which was made upon a reference by him and his father after the death of his mother bars the plaintiff's claim on the mortgage inasmuch as Mazhar Ahsan could not transfer any property according to the award. The award is Ex. E-1 and is to be found at p. 33. The arbitrator as regards the third issue held that Mazhar Ahsan will have no power to transfer the zamindari properties which were on the date of the award, namely, 1st February 1891, owned and possessed by the defendant. The short answer to the plea, and a complete answer is that it has not been proved, as a matter of fact, as held by the learned Subordinate Judge, that the properties mortgaged by Mazhar Ahsan were in his possession on 1st February 1892. The learned advocate for the appellants has contended that inasmuch as in a suit in the year 1917 all kinds of pleas were put forward by the defendants but no plea was taken that the property mortgaged was not in Mazhar Ahsan's possession on 1st February 1892, the conclusion is that the property was in his possession on that date. We are unable to accept this contention.

3. The first paint taken by the learned advocate for the appellants on behalf of all the appellants is that the mortgage-deed being in favour of a minor was void in law. The contention of the learned advocate is that even if a minor pays full consideration for a mortgage a transfer of immovable property in favour of a minor is void in view of the ruling of their Lordships of the Privy Council in the case of Mohori Bibee v. Dharmodas Ghose [1903] 30 Cal. 53. The learned advocate in support of his contention has cited before us the case of Navakotti Narayan Chetty v. Logalinga Chetty [1910] 33 Mad. 312. He has to confess that there is no other case supporting the contention put forward by him, but he probably does not know that there is a judgment of a single Judge of this Court which referred to the case in I.L.R., 33 Mad. 312 (2) and which was on appeal under Section 10, Letters Patent set aside, the Bench not following the case in Navakotti Narayan v. Logalinga Chetty [1910] 33 Mad. 312. The case in Navakotti Narayan v. Logalinga Chetty [1910] 33 Mad. 312 had been overruled by a Full Bench of the Madras High Court in the case of Raghavachariar v. Srinivasa Raghava Chariar [1916] 40 Mad. 308. Now turning to the case law as far as this Court is concerned that case in Navakotti Narayan v. Logalinga Chetty [1910] 33 Mad. 312 has never been followed and has been definitely distinguished and differed from except in the case we have mentioned, namely, Mt. Munni v. Madan Gopal [1915] 13 A.L.J. 185.

4. We may mention that the law as laid down by several Benches of this Court is that when a transfer is made of property in favour of a minor and the minor has paid consideration for it such a transaction cannot be held to come within the principle laid down by their Lordships of the Privy Council in Mohori Bibee v. Dharmodas Ghose [1903] 30 Cal. 53. The first case is that of Ulfat Rai v. Gauri Shankar [1911] 33 All. 657. A certificated guardian had transferred some immovable property belonging to himself to his minor wards in satisfaction of money which he owed to them and it was held by a Bench of this Court that the transaction was a bona fide one and for the benefit of the minors and that the transfer in favour of the minors was valid and could be enforced by them. The case reported in I.L.R., 33 Mad 312 (2) was relied on by the learned vakil who appeared for the respondents in the case and was not followed by this Court.

5. There are two cases in Vol. 38 of the I.L.R. All. Series. At p. 62 is to be found the case of Munni Kuar v. Madan Gopal [1916] 38 All. 62 and it was held in that case that inasmuch as there was nothing in law to prevent a minor from becoming transferee of immovable property so a minor in whose favour a valid deed of sale had been executed is competent to sue for possession of the property conveyed. The cases on the subject were fully discussed and the case in Navakotti Narayan v. Logalinga Chetty [1910] 33 Mad. 312 was distinguished. At p. 154 another Bench of this Court in Narain Das v. Mt. Dhania [1916] 38 All. 154 held that a minor was capable of purchasing immovable property and where such a purchase has been completed by execution and registration of a sale-deed he can sue to recover possession of the property purchased upon tender of the balance of the purchase money. An examination of the headnote would have shown to the learned Counsel that the case in Navakotti Narayan v. Logalinga. Chetty [1910] 33 Mad. 312 had been dissented from. It is unnecessary to refer to any other case, but we may refer to the case of Thakur Das v. Mt. Pulti A.I.R. 1924 Lah. 611 where a Bench of the Lahore High Court held that a mortgage in favour of a minor was enforceable by him where the consideration has been paid by him in full. We are in entire agreement with the view taken in the cases referred to above. We are of opinion that there is absolutely no force in the contention put forward by the advocate for the appellants.

6. The next point taken is that no consideration passed from the plaintiff in this case to Mazhar Ahsan because the allegation of Mazhar Ahsan that the dower-debt of the plaintiff's mother was Rs. 24,000 was incorrect and that the real amount of the dower was Rs. 1,000 and that has been admitted. The learned Subordinate Judge, in our opinion, has given good grounds for rejecting the contention of the appellants. It is inconceivable to us that a gentleman of the age if Mazhar Ahsan could marry a young lady of 18; (It is not suggested that the plaintiff's mother did not belong to the same society as Mazhar Ahsan who was over 50 years old and who had a number of children) and the dower debt should have been fixed at only Rs. 1,000. We have not the slightest doubt whatsoever that the statement of the witnesses who have come forward to prove that the dower debt of the plaintiff's mother was Rs. 1,000 is absolutely false. The theory of remission was a pure fabrication, and we are of opinion that the plaintiff has proved that the dower debt of her mother was Rs. 24,000 and the legal share which the plaintiff was entitled to in the dower debt was Rs. 3,000.

7. The next point urged was that the mortgage-deed had not been legally proved. An examination of the evidence of the witnesses on whom the appellants rely clearly shows that they are palpable liars and have come forward to give evidence to support the appellants' case for some ulterior motive. In our opinion the plaintiff has proved the execution of the mortgage. Lastly it has been urged, and in our opinion rightly urged, that the learned Subordinate Judge was in error in holding that the defendants were not entitled to redeem their share of the mortgaged property by paying a proportionate share of the mortgage money. Reference has been made by the learned Subordinate Judge to two cases which in our opinion are clearly distinguishable and do not lay down what the learned Subordinate Judge says they do. When the mortgagee becomes an heir to the mortgagor and inherits a portion of the mortgage it cannot be said that the integrity of the mortgage has not been broken. We agree with the view taken in the case of Hamida Bibi v. Ahmad Husain [1909] 31 All. 335. We are of opinion that the defendants are entitled to redeem their share of the mortgaged property by paying a proportionate share of the mortgage money. We therefore allow the appeal in part and direct that a fresh decree be drawn up in accordance with Order 34, Rule 4, Civil P.C. The shares of the defendants are as follows:

8. Zafar Ahsan's share is two-eleventh and as the interests of all the other heirs in the property of Mazhar Ahsan have been transferred by the deed dated 2nd December 1923, to Azhar Ahsan their share will be nine-eleventh. The mortgage must be deemed to be a good mortgage to the extent of Rs. 3,000. We direct a decree to be prepared under Order 34, Rule 4, and fix six months from this date as the date for payment. Parties will bear their own costs in both Courts.


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