1. This is a plaintiff's appeal and arises from a suit for possession of two plots : Nos. 394-1 and 494, by ejectment of defendant 1, who claims it under a mortgage deed executed by defendant 2. The plaintiff and defendant 2 are recorded co-sharers of a 'khata' in which the plots in suit lie. The trial Court decreed the plaintiff's suit so far that joint possession was allowed to the extent of 11-12. The lower appellate Court dismissed the plaintiff's suit.
2. The 'khata' in which the plots in suit are situated originally belonged to one Makhdum Bakhsh. In 1906 he executed a deed of gift in respect of the entire khata in favour of his daughter's sons, Abdur Rauf and Muhammad Hanif. Makhdum Bakhsh subsequently died, leaving a daughter, Wasiha Bibi, and her two sons, the donees, Qutubuddin is the son of Zaibunnisa, daughter of Wasiha Bibi. Mutation of names was effected in favour of the donees, Abdur Rauf and Muhammad Hanif. The latter died, apparently un married, and his share devolved partly on his mother and partly on his brother and sister. The sister also died, leaving the plaintiff and her mother Wasiha Bibi as her heirs. Wasiha Bibi thus obtained a fractional share in the 'khata' from her deceased son and daughter, though she got nothing on the death of her own father, Makhdum Bakhsh, who had gifted away the entire share to her sons. Abdur 'Rauf made a gift of his share to the plaintiff. Wasiha Bibi executed a deed of mortgage with possession to defendant 1 Mangala Dubey, in respect of plots Nos. 394-1, and 494. Thereupon the plaintiff instituted the suit which has given rise to this appeal for exclusive possession of the plots in dispute impugning, the deed of mortgage and the right of the mortgage to remain in possession of the plots which formed part of the undivided property of the plaintiff and Wasiha Bibi, from whom defendant 1 admittedly derives title. The suit was contested by defendant 1, who pleaded that the deed of gift under which the plaintiff claims title and which was executed by Abdur Rauf was fictitious and fraudulent and conferred no title on the plaintiff. The plaintiff had also impugned the mortgage relied on by defendant 1 on the ground that Wasiha Bibi did not intelligently execute it in favour of defendant 1 nor did she receive any consideration in respect thereof.
3. Both the lower Courts have concurrently found that the mortgage deed in favour of defendant 1 is perfectly valid. This finding must be accepted, and defendant 1 should be treated as a mortgagee with possession from Mt. Wasiha Bibi. The lower appellate Court upheld the defence as regards the validity of the deed of gift in favour of the plaintiff. It is somewhat difficult to ascertain the exact finding of that Court on this part of the case. It is alleged on behalf of the respondent that the finding amounts to a declaration that the deed of gift was void. I shall advert to this question presently.
4. It is no longer in dispute that Abdur Rauf executed a deed of gift in favour of the plaintiff in 1918, and had it registered. Mutation of names was effected in his favour in respect of the share of Abdur Rauf in the 'khata' we are concerned with. Abdur Rauf subsequently instituted a suit for cancellation of the deed of gift, alleging that the deed was fictitious and was not given effect to. The suit was compromised and a decree dismissing the suit in terms of the compromise was passed on 26th April. 1920. The decree clearly states that the deed of gift be declared to be valid and the plaintiff's suit be dismissed. This was the effect of the compromise, which however provided that certain house and sir and khudkasht lands would remain in possession of Abdur Rauf. After sometime Abdur Rauf appears to have instituted another suit again impugning the deed of gift as before. He also impugned the compromise and the decree passed in the earlier suit. As regards the compromise, he said that, it was collusive. Excepting the plaint, no other document relating to that suit has been filed by any of the parties. It is conceded on both sides that the suit was eventually dismissed. It is not suggested that Abdur Rauf was not in possession of the share to which the deed of gift related. In the face of this history it is surprising that the lower appellate Court upheld the defence that the deed of gift is not valid and confers no title on the plaintiff. The learned Subordinate Judge, who heard the appeal, refers to some evidence showing that Abdur Rauf was indebted to certain persons and that he dealt with one or two plots as if he were the owner after the dead of gift. The suggestion that Abdur Rauf was indebted was based on some oral evidence and the admission of the plaintiff that Abdur Rauf was indebted to one Kaihaiya La,l whowas paid off by the donee (the plaintiff) after the deed of gift. The learned Subordinate Judge also referred to the allegation of Abdur Rauf himself in his plaint in the suit brought for cancellation of the deed of gift.
5. On these facts the learned Subordinate Judge held that the deed of gift had been executed to defraud the creditors and was therefore void. He failed to take note of the fact that no creditor ever challenged the deed of gift. He is apparently of opinion that a deed of gift executed to defeat the creditors is necessarily void. This is not a correct proposition. Under Section 53, T.P. Act, a deed, unless it was meant by the executant thereof to the fictitious, is only voidable at the option of the creditors; and if it is not avoided by the latter, it is a perfectly valid instrument as between the parties to it, That the deed of gift in question was not fictitious is abundantly proved by the fact that mutation of names was effected and that the donee (the plaintiff) has been in possession of the gifted share and his right is questioned only as regards the two plots which are now in dispute. The decree, though based on the compromise, is conclusive as regards the validity of the deed of gift. Abdur Rauf or any one claiming under him, is bound by the decree which affirmed the validity of the deed of gift. The learned Subordinate Judge has brushed it aside with the remark that it was 'collusive.' He did I not pause to consider what a collusive transaction means. If the plaintiff and the defendant in an action compromise, land the compromise is given effect to I in the decree, it cannot be considered to be collusive, unless it is a fraud I on the rights of third persons. The I word 'collusive' is not a term of art and generally implies an understanding between two persons in fraud of the rights of third persons. As between the parties to a transaction no question of collusion can arise only because they acted in concert a characteristic which is common to all agreements. It is not suggested that the object of the compromise between the parties to this suit was to prejudice the right of any one else. As already stated, Abdur Rauf or any one claiming under him, is estopped by the compromise and the decree from questioning the validity of the deed of gift. Much less1 is a third person like defendant 1 entitled to raise any question in respect of the binding character of the deed of gift. For these reasons, I set aside the finding of the lower appellate Court so far as it relates to the validity of the gift relied on by the plaintiff-appellant.
6. The learned advocate for the appellant has referred to Jamna v. Jhalli 1920 All. 111 and Mohamad Sher Khan v. Bharat Indu 1928 All. 59 and contended that one of several cosharers in an undivided mahal cannot transfer to a stranger lands held by him in severalty and that if he does so, the other co-sharers are entitled to have the alienation set aside, to eject the transferees and to take joint possession with the transferors. One of these cases is the decision of a Division Bench, and I am bound by it. The lower Courts have found as regards one of the plots in dispute that it was in exclusive possession of Wasiha Bibi. If she had not executed the mortgage deed relied on by defendant 1, the plaintiff would not have been entitled to joint possession with her; but as ruled in the cases already referred, to, he becomes entitled to joint possession after ejecting the transferee. Acting on this view, the Court of first instance decreed joint possession to the plaintiff, declaring his share to be 11-12. It did not however pass any decree for ejectment of defendant 1, the transferee. The latter appealed to the lower appellate Court; but the plaintiff did not file any cross-objection, nor did he prefer a separate appeal of his own. The lower appellate Court dismissed the suit holding that the plaintiff had no right under the gift set up by him, but went on to observe that if the deed of gift had been found by it to be valid, it would have decreed joint possession to the plaintiff. According to the calculation of shares made by that Court, the plaintiff's share comes to 121-144 and not 11-12, as assumed by the trial Court. It is clear that the plaintiff acquiesced in the form of the decree passed by the trial Court and did not insist on the ejectment of defendant 1. None of the grounds taken in the memorandum of appeal in this Court is directed against the ejectment of defendant 1. In this state of things, I do not think that a decree for ejectment of defendant 1 need be passed. In the view of the case I have taken, the decree of the trial Court should be restored, declar ing the plaintiff's right to be 121-144, as found by the lower appellate Court. The order of the trial Court decreeing mesne profits is also restored.
7. The result is that the appeal is allowed with costs. The decree of the lower appellate Court is set aside and that of the Court of first instance is restored with this modification that the plaintiff's share shall be consider ed to be 121-144 and not 11-12. Leave to appeal under the Letters Patent is refused.