1. This is a plaintiff's appeal arising out of a suit for pre-emption. The lower Appellate Court has dismissed the suit on the ground that the plaintiff is in the position of a mortgagee and not a proprietor and is, therefore, not a co-sharer entitled to pre-empt. It has further held that a deed which was ostensibly one of gift taken during the pendency of the suit was in reality a sale for a consideration of Rs. 50 and, therefore, did not entitle the vendee to resist the claim. The plaintiff has filed an appeal from the dismissal of his suit and the respondents have unnecessarily filed a cross-objection taking exception to the finding that the latter transaction was one of sale. The suit having been dismissed there was no necessity for filing the cross-objection. Furthermore, the finding that it was a sale for Rs. 50 was a finding of fact and cannot be challenged in second appeal. The cross-objection is dismissed with costs.
2. As regards the appeal, the findings of the lower Appellate Court are that the property originally belonged to the husband of Musammat Toraban who died leaving her as his widow and five children. This happened before 1891. In 1891 Musammat Toraban first executed a sale-deed of a share in the property left by her husband for herself and as guardian of three sons, and later in 1897 she again for herself as a guardian of those children executed a second sale-deed of another share. The learned Judge has found that by virtue of these two transfers more than the legal shares to which the widow and the three children were entitled passed and there were no more shares left which could be treated as a proprietary interest vested in them. She, however, continued to remain in possession of the extra share in lieu of her dower debt. This share she again purported to sell on the 16th of July, 1905 to the present plaintiff. Since that date the plaintiff has remained in proprietary possession of this share and no heir has come forward to claim the property. In the opinion of the learned Judge the possession of the plaintiff Musammat Mahmuda Bibi was that of 'a purchaser of the possessory interests of Musammat Toraban Bibi' and therefore she occupied the position of mortgages and not a proprietor. In our opinion this view cannot now be upheld in view of the recent pronouncement of their Lordships of the Privy Council in Maina Bibi v. Vakil Ahmad . In that case their Lordships clearly laid down that if a Muhammadan widow in possession of the estate of her husband in lieu of her dower-debt purports to transfer the property itself, as distinct from her dower-debt or her right to hold possession in lieu of it, she loses all rights to hold the possession of the property as soon as possession has passed to her transferee; and that she cannot claim any proprietary interest in the property itself or any right to dispose of it. In the case mentioned above the heirs of the husband were given a decree for possession pure and simple, against the transferee of the property from the widow without being called upon to pay any part of the outstanding balance of her dower-debt. That is to Bay, they were treated as persons holding possession without any right or title and liable to be dispossessed by the real proprietor.
3. In the present case the position is exactly similar. In 1905, Musammat Toraban purported to transfer the property itself to Musammat Mahmuda Bibi without attempting to transfer her dower-debt or her right to hold possession of the property in lieu of her dower-debt. As in the case before their Lordships of the Privy Council, we must hold that the transfer did not confer any right or title on her transferee to continue in possession. From the time of the sale-deed her possession became adverse as against the true owners and she would have been dispossessed if a suit had been instituted against her. By lapse of the prescribed period it matured into proprietary title. The sons of Musammat Toraban who must in any case be adults by now have so far taken no steps to oust the plaintiff who has remained in possession and whose name is recorded in the khewat. We, therefore, think that the view taken by the learned Judge that her position is that of a mere mortgagee is not correct. She must be treated as a full co-sharer within the meaning of Section 4, Sub-clause (1), being entitled as proprietor to a share in the mahal.
4. We accordingly allow this appeal and setting aside the decree of the Court below restore the decree of the Court of first instance with costs in all Courts including in this Court fees on the higher scale. We extend the time for payment by two months from this date. If the amount is not paid within the extended time the suit will stand dismissed with costs in all Courts including in this Court fees on the higher scale.