1. The subject matter of the litigation out of which this appeal arises admittedly belonged originally to a Mahomedan by name Haji Rahamat Khan, who died about 15 or 16 years before the suit. Haji Rahamat Khan had two wives Manwar Bibi and Ayesha Bibi, by the former of whom he had two sons, Akmal Khan and Esop Khan. Shortly before his death, on the 20th September 1886, he made arrangements for the residence and maintenance of his wife Ayesha Bibi and she executed an ekrarnamah by which she gave up her prospective right to the property of her husband. After the death of Haji Rahamat, his property passed into the possession of his widow Manwar Bibi and her two sons. The sons dealt with the property as if it belonged to them exclusively and executed a mortgage in favour of defendant No. 1. Defendant No. 1 sued to enforce his security, obtained a decree and asked for the sale of the mortgaged properties. The plaintiff had obtained a Hebabiliwaz from Manwar Bibi on the 14th January 1903 and on the 29th August following, commenced this suit for a declaration that the mortgagee was not entitled to proceed against more than 14 anna share of the disputed properties, and that he himself was entitled to the remaining 2 anna share which, he alleged, belonged to Manwar Bibi. The claim was resisted by the defendants on various grounds. The Courts below have overruled all the objections taken on behalf of the defendants and have made a decree in favour of the plaintiff.
2. Defendant No. 1 has appealed to this Court, and on his behalf the decision of the Subordinate Judge has been challenged upon the grounds, that the ekrarnamah, executed by Ayesha Bibi on the 20th September 1886, was inoperative as it purported to be a release of her chance of succession to the estate of her husband, that upon the death of Haji Rahamat Khan a 14 anna share in the properties left by him was taken by his two sons and a two anna share by his two widows, and that consequently Manwar Bibi, from whom the plaintiff claims to have derived title under the Hebabiliwaz executed in his favour on the 18th January 1903, could not convey title to more than one anna share in the disputed property. It was argued, therefore, that the Courts below had erred in making a decree in favour of the plaintiff for the two anna share claimed by him.
3. In support of this contention, the learned Vakil for the appellant has placed reliance upon a recent decision of the High Court of Bombay in the case of Sumsuddin Gulam Hoosein v. Abdul Hossein Kalimoodin 31 B. 165 8 Bom., L.R. 781. In this case, the Court was called upon to consider the question of the transferability or otherwise, according to the Mahomedan Law, of the chance of an heir-apparent succeeding to an estate. Mr. Justice Chandavarkar, who heard the case in the Court of first instance and whose judgment is reported in Sumsuddin v. Abdul Hossein 8 Bom. L.R. 252, held that, under the Mahomedan Law, a mere spes successionis cannot be the subject of a valid transfer, but that this principle does not affect a transaction in the nature of a family arrangement by which the father makes immediate provision for his daughter, to take effect both in his life-time and after his death, in consideration of the daughter agreeing not to claim her legal shares as heir on his death. The case was then heard in appeal by Sir Lawrence Jenkins, C.J. and Mr. Justice Beaman. The learned Chief Justice ruled that the chance of an heir-apparent succeeding to an estate is neither transferable nor releasable according to Mahomedan Law. He further pointed out that it was only by an application of the doctrine that equity considers that done which ought to be done, that such a chance could, if at all, be bound, but that inasmuch as it was not intended by Section 6 Clause (a) of the Transfer of Property Act to establish and perpetuate the distinction between that which according to the phraseology of English lawyers is assignable in law and that which is assignable in equity, it must be held that the chance of an heir apparent had been especially excepted from the category of transferable properties and could not be dealt with on the principle that equity considers that done which ought to be done. I entirely agree with the opinion expressed by Sir Lawrence Jenkins that a Mahomedan cannot, any more than a Hindu, bind his chance as an heir-apparent, and in support of this view, it is sufficient to refer to the decision of their Lordships of the Judicial Committee in Sham Sundar Lal v. Achhan Kunwar L.R. 25 I.A. 183 at 189; 21 A. 71 at 80, in which it was held that a Hindu reversioner not only could not dispose of but could not bind his expectant rights. This principle is to some extent supported by the case of Abdul Wahid Khan v. Nuran Bibi L.R. 12 I.A. 91. at 101; 11. C. 597 at 606, and was adopted by this Court in the case of Nund Kishore Lal v. Kanee Ram Tewary 29 C. 355, in which the learned Judges dissented from the contrary view which had been adopted in the case of Brahmadeo Narayan v. Harjan Singh 25 C. 778. I reserve, however, my opinion upon the other question discussed in the judgment of Sir Lawrence Jenkins, namely, whether the effect of Section 6 Clause (a) of the Transfer of Property Act is not merely to except specially the chance of an heir-apparent from the category of transferable property, but also to make the principle that equity considers that done which ought to be done entirely inapplicable. The question does not directly arise in this case and appears to be not altogether free from difficulty. The cases of Hobson v. Trevor (1723) 2 P. Wms. 191; 24 E.R. 695 and Holroyd v. Marshall (1862) 10 H.L.C. 191; 11 E.R. 999, undoubtedly laid down that a contract made with respect to the sale or mortgage of future-acquired properties is capable of specific performance and transfers the beneficial interest in the property as soon as it is acquired [see also Flower v. Butter (1880) 15 Ch. D. 665, Hinde v. Blake (1840) 3 Beav. 234; 49 E.R. 91]. A similar view was adopted by Mr. Justice Phear, in Ram Chander Tantra Doss v. Dhurmo Narain Chukerbutty 7 B.L.R. 341 at 345; 15 W.R., 17 (F.B.). How far this doctrine may have application in spite of the provisions of Section 6 of the Transfer of Property Act may require examination when the question arises. It is sufficient for the purposes of this case to hold that the deed of 1886, by which Ayesha Bibi released or abandoned all her prospective rights in her husband's estate, must be treated in law as inoperative. To this extent, therefore, the contention of the appellant is well-founded. But it does not necessarily follow that the appellant is entitled to succeed. Upon the death of Haji Rahamat Khan, his estate must be taken to have passed to his two widows and his two sons. The sons took a 14 anna share in the property left by the deceased and each widow took a one anna share. It has been found, however, by the Courts below that Ayesha Bibi, since the death of her husband, has acted on the assumption that the deed of 1886 is valid and operative. She has abandoned all her claims to the estate of her husband. She has accepted maintenance from the heirs of her husband on the footing that she was not entitled to any portion of the estate and at the time when the appeal was being heard by the Subordinate Judge, he had another litigation pending before him in which Ayesha Bibi sued to enforce her claim on the basis of the ekrarnamah against the heirs of her husband. We find, therefore, that for more than 12 years after the death of Haji Rahamat Khan, Ayesha Bibi has been excluded from the enjoyment of any portion of the estate left by him, and the properties have been enjoyed by the other widow Manwar Bibi and her two sons Akmal Khan and Esop Khan, as if Manwar was entitled to a two anna share and her sons were entitled to the remaining 14 annas. Under these circumstances, it must be held that, even if Ayesha Bibi had a good title to a one anna share of her husband's properties, her right has been extinguished by limitation, and, by adverse possession against her by her co-widow. Manwar Bibi had acquired a good title to the extent of what would be her share in her husband's estate. It necessarily follows that the plaintiff who claims under a Hibabiliwaz from Manwar is entitled to a two anna share of the disputed properties left by Haji Rahamat Khan. In this view of the matter, the decree made by the Courts below is correct and must be affirmed, although some of the reasons given by the Subordinate Judge for his decision may be open to criticism. It may further be added that the defendant appellant as mortgagee from the two sons can in no event establish his title to more than 14 anna share in the properties, because it is not and cannot be disputed that his mortgagors never had any title to a larger share. The only question, therefore, would be, whether the remaining two anna share was owned by Manwar alone or by Manwar Bibi and Ayesha Bibi jointly. As Ayesha Bibi had never claimed any title to the one anna share which might belong to her and had allowed her co-widow to remain in possession of what she might have claimed, it is clear that Manwar Bibi had a good title to the two anna share which has been transferred to the present plaintiff.
4. The appeal, therefore, fails and is dismissed with costs.