1. The plaintiff-appellant claims the property is suit as reversioner of Musammat Sumitra, widow of Dale Ram. His case was that Musammat Samitra came into possession of the property as a Hindu widow on her husband's death. The plaintiff aid the defendant Nathi are, the two reversioners to Dule Ram and are entitled, to the property in equal shares on Musammat Samitra's death. The reversionary right of the plaintiff and Nit hi is not disputed. On Musammat Sumitra's death Nathi took possession of the whole of the property and executed two usufructuary mortgages. The dispute is as to how far these mortgages are binding on the plaintiff's share. The mortgages were both executed 01 the sans day. One was for Rs. 1,505 in favour of the respondent Charan Singh and the other for Rs. 375 in favour of the respondent Khashera. The Court below has held these mortgages to be binding on the plaintiff's share to the extent of Rs. 1,143-13-9 and Rs. 232-2-2 respectively and has given the plaintiff a decree for possession subject to these amounts.
2. Among the pleas raised in answer to the suit was one that Musammat Sumitra was in adverse possession of the property. The Trial Court rejected this defence and held that Musammat Sumitra obtained the entire properties as the widow of Dule Ram. The lower Appellate Court came to the conclusion that part of the property was inherited by her from her husband on his death but that the major part of the property was never in Dale Ram's possession but was held by three persons Durjan Musammat Phula and Jugal and that Musammat Sumitra's possession of it was adverse. The learned Judge does not come to any finding as to how long she had been in possession of it bat as the plaintiff had Jailed to prove that she had been in possession for less than 12 years he held that she had acquired absolute title by adverse possession. The large portion of the consideration of the two mortgages in dispute was applied to pay off previous mortgages executed by Musammat Sumitra while in possession of the property. The Trial Court considered the question how far these mortgages were for legal necessity and held that no portion of the consideration was for legal necessity or was binding on the plaintiff. The lower Appellate Court held that as regards the property of which Musammat Samitra was in adverse possession it did not matter whether the mortgages were for legal necessity or net as she had an absolute right to encumber the property. The learned Judge, therefore, held that whatever portion of the consideration of Nathi Singh's mortgages was in lieu of previous mortgages by Musammat Sumitra was binding on the share of the plaintiff. This reasoning would not however apply to that portion of the property which even on tie learned Judge's finding Musammat Sumitra inherited as a Hindu widow and one of the grounds of appeal is that the Court below has erred in not distinguishing between the two classes of property. It should have come to a finding as to what portion of the property was inherited by Musammat Sumitra as a Hindu widow and should nave considered the question of legal necessity in respect of this portion of the property. This plea is unanswerable and as regards the property inherited by Musammat Sumitra as a Hindu widow the decree of the Court below clearly cannot be sustained without a finding as to how far the debts were binding.
3. The second plea taken by the appellant is, that the lower Court has erred in throwing on the plaintiff the burden of proving that Musammat Sumitra had not acquired title by 12 years' adverse possession to the property which she did not obtain from her husband. Here again the learned Judge is certainly wrong. It is not disputed that the plaintiff and Nathi are the reversioners of the persons who were previously in possession of this property. Title, therefore, is with them and it is for the defendants who seek to avoid that title on a plea of adverse possession to establish it.
4. These, however, are subordinate pleas. The appellant's main plea is one which goes to the root of the case. His case is that in whatever capacity Musammat Sumitra came into possession of the property and whatever the nature of the debts incurred by her, Nathi was on her death admittedly only entitled to a half share in it. He was entitled to encumber that half share or deal with it in anyway he liked, but he had no legal right to execute mortgages on property which was not his own and these mortgages cannot in any event be binding on the plaintiff. It seems superfluous to quote authority for the proposition that a man has no right to deal with property which is not his own and that unless he can show some fight to deal with it, either as agent or guardian of the owner or trustee or the like, any transfer which he purports to make cannot bind the lawful owner. Section 7 of the Transfer of Property Act has been referred to as embodying this principle. Mata Din v. Ahmad Ali 13 Ind. Cas. 976 : 34 A. 213 : 16 C.W.N. 338 : 11 M.L.T. 145 : (1912) M.W.N. 183 : 9 A.L.J. 215 : 15 C.L.J. 270 : 14 Bom. L.R. 192 : 15 O.C. 49 : 33 M.L.J. 6 : 39 I.A. 49 (P.C.) was a case in which it was sought to validate a sale of property by persons who were not the owners of it by describing them as de facto guardians. Their Lordships of the Privy Council said that though the so called dc facto guardian might assume important responsibilities in relation to the minor's property he could not by his de facto guardianship clothe himself with legal power to sell it. In one passage in his judgment the learned District Judge speaks of Nathi as the de facto administrator of the property but this expression is not based on anything in the evidence and merely means that Nathi was in actual possession.
5. The respondents-mortgagees, therefore, who seek to bind the property of the plaintiff by an alienation made by Nathi must show some principle on which that alienation can be treated as binding. This they have not attempted to do. They cannot appeal and in fact have not appealed, to Sections 69 and 79 of the Contract Act as these sections will merely give Nathi a right to be re-imbursed for any expenditure incurred. It is not alleged, that the mortgages entered into by Nathi were necessary in order to preserve the plaintiff's property. It is not shown that the property was in danger of being sold under the mortgage executed by Musammat Sumitra and indeed before the mortgagees could lawfully bring the plaintiff's property to sale it would have been necessary to implead him in the suit. It follows that the mort gages executed by Nathi are not binding on the plaintiff, and the plaintiff was entitled to an unconditional decree for possession of the property. I accordingly allow the appeal and modifying the decree of the Court below give the plaintiff-appellant an unconditional decree for possession. The appellant will get his costs throughout including in this Court fees on the higher scale.